Welcome back to the Lawyers & Liquor discussion on fees! So last time we talked about the historical difference between the American Rule and the English Rule, which is essentially the difference between you paying someone to kick you in the nuts and someone else paying to try to kick you in the nuts. A brief summary of our last post is as follows: In America, lawsuits require that you bear all of your own expenses, paying the lawyer out of your own pocket even if you win, with a rationale of “access to justice.” However, the traditional rule on most Common-Law countries, and indeed in a lot of the world, is that the loser in a civil action will pay reasonable attorneys fees for the winning side, the idea being that it’s the losing side’s fault the matter was in court at all to begin with.
This isn’t a new thing. America deviated, as we talked about, back in 1796 in a Supreme Court decision that found making the loser pay up may actually dissuade people from going to court and asserting meritorious claims and defenses because of the specter of the money-grubbing attorney in the background. We also talked about how that decision is a remnant of a time when it was completely acceptable to pay your lawyer with a side of beef and a fresh coat of paint on his palatial farmhouse in the country. America, it seems, never got the message that when a ham has less monetary value and doesn’t stretch as far, a refiguring of the way we award fees may be needed.
So what does this mean for you, the lawyer or layman in the good old U.S. of A who may want to make sure at some point they see a payment on a fucking bill or, in the case of the latter, may want to know what they’re getting into when they hire a lawyer?
It means we have a sort of complicated set of “ways to pay for shit” that clients can utilize. Which we’re going to talk about today, starting with the Billable Hour.
Good morning and welcome back to Monday here on Lawyers & Liquor, where I try to recoup all the goodwill I burned through in recovering from an injury and being a general roustabout in anything not case related by redirecting you all away from my flagrant ignoring of my responsibilities on this site and back towards the questions of law, fact, and fun that tend to pop up profanely here. Isn’t that just one hell of a run-on sentence? Anyhow, I’m your hobbling host the Boozy Barrister, here to pour seething hot rage and recommendations into your eyeholes as we keep trucking on through the dark night of litigation finance.
You may remember that last week, before I disappeared into the netherworld of lazy lawyers in their off time, I spoke about the threats that are coming to bear on the Legal Services Corporation, the federal agency that provides grants to legal aid non-profits and assists them in letting the indigent have their day in court. The whole reason we have to have organizations like this is because, frankly, if someone hires me to bring a lawsuit or defend one I expect to get fucking paid as a result. Now, some of you out there are saying “Boozy, I thought lawyers only get paid if you win!” To that I say: Do I sound like the type of guy who takes cases on contingency? I like eating my meals. The only gambling I ever do is at the pai gow table, surrounded by hard-smoking and hard-drinking Chinese businessmen screaming things in Mandarin and Cantonese (neither or which I speak) and occasionally I place a few bets on sports betting sites like FanDuel to see if I can make a quick buck. I’m not gambling in the office.
I mean, I would if I could, but it’s been hell on wheels trying to get the partners to recognize the need for a pai gow table in the conference room.
No, in most cases us American Attorneys get paid win, lose, or draw. You may go home with empty pockets and a judgment against you, but I go home with my check or I don’t sally forth into the legal battlefield with you in the first fucking place. And that, for many people out there, is the problem. But…what if I told you there was another way? And there may be one, too, if we dig back through the past and examine the alternative method of paying for a lawsuit…which is what we’re doing this week.
But first, let me explain the two historical methods of paying for a lawsuit: The English Rule and the American Rule.
Continue reading ““Fees Fi Fo Fum”: The English Rule and The American Rule, Part 1″