Farmer Threatened By Nuisance Lawsuit Sues Back

[blb078]

We actually have a rule named after us in the USA. It is called the American Rule and it states that each party is responsible for paying their own attorney fees. It is what allows the little man in our Country to go up against big corporations. This is in contrast to English Rule, where the loser pays for both parties attorneys.

This is in general. There are laws that will set who will pay attorneys' fees based on the outcome of the case, and land law cases are typically one of them. I was involved in something very similar myself.

Also, you can sign an agreement (HOA, etc) that may define who pays attorneys fees if the agreement in question goes to court.

If a law or contract says you can get attorneys fees, then they can be requested. If not, a request for attorneys' fees will not be granted to the prevailing party.

Yes I'm very familiar with the rule, however it is not what allows the little man to go up against big companies. Having lived in England for a period of time I can tell you that the little man goes up against the big companies just as much when necessary. What the American rule does is create a very litigation happy country which we are. We actually have the highest number of lawsuits per 100k people in the world, also the highest number of attorneys per 100k, and judges. Here is what the American rule cases, Top 1 Frivolous Lawsuits List Is… Frivolous, But Funny | Above the Law and 1 Ridiculously Frivolous Lawsuits Against Big Businesses | Business Insurance Quotes: Compare Providers for Free #2 & #6 specifically. That's just against big companies, the amount of frivolous suits against regular people is even crazier and much higher. With the English rule you still get that but not to the extreme that the American rule causes. Now when the American rule was created I'm sure those involved had no idea or intention of it turning in to what it has now but it has and there is the issue with it.

 

[wawoodwa]

I can see both sides on that. I think you're right about that when the American Rule was adopted, it was so trials could be fast and inexpensive, which they are not now, and I can see attorneys in English Rule taking more cases on contingency, and only when they would feel they could prevail for their client.

In this instance, I am glad how this one played out. It is exactly how I told a neighbor what would happen if they tried to take me to court.

 

[blb078]

I can see both sides on that. I think you're right about that when the American Rule was adopted, it was so trials could be fast and inexpensive, which they are not now, and I can see attorneys in English Rule taking more cases on contingency, and only when they would feel they could prevail for their client.

In this instance, I am glad how this one played out. It is exactly how I told a neighbor what would happen if they tried to take me to court.

True, in this instance it played out ok, however under an English law this probably would of never been a suit to begin with. Now this guy has to go back to court to get his fees which he may or may not.

 

[dickfoster]

Yep, I was sued earlier this year for my business. It was such a bogus suit my attorney laughed and couldn't believe it. The person sueing me son was their attorney so they got it cheap. Anyway as soon as my attorney filed a response wanting to question them they dropped the suit. That was it and I was stuck with a 9k attorney bill that didn't even go to trial. This country is very sue happy and it's very easy to sue someone for anything. Unfortunately most if not all states the loser doesn't have to pay the winner's attorney fees. If that where the case we would see a lot less lawsuits and even less bogus suits. You have to sue to get your fees back or it has to be part of the initial suit I believe but even then it's up to the judge to award them.

Well since most members of legislative bodies are lawyers it kinda figures that they are gonna set up a system where lawyers always make out well no matter what and it doesn't matter what's fair or makes sense who pays as long as all the lawyers get paid well.

 

[wawoodwa]

True, in this instance it played out ok, however under an English law this probably would of never been a suit to begin with. Now this guy has to go back to court to get his fees which he may or may not.

I don't know about that. The guy that was thinking of suing me stated that he was willing to put up his money to do it. I stated that is ok and I am willing to go to the mat too, but I explained that if I prevail under Libel of Title, the law allows me to recover my fees. He stated he would ask the same, at which point I pointed out the American Rule and stated he had no basis (law or contract) to ask for fees. That stopped the lawsuit conversation and we started working to more cooperative negotiations. Had this been under English Rule, one of us would be paying $100k as I don't think it would have de-escalated.

Regarding this specific instance, I don't know how the suit was filed, but you typically ask for fees at the time of the suit. It may be that the next step is for the farmer to lien the property owner. But we don't know the details.

 

[blb078]

I don't know about that. The guy that was thinking of suing me stated that he was willing to put up his money to do it. I stated that is ok and I am willing to go to the mat too, but I explained that if I prevail under Libel of Title, the law allows me to recover my fees. He stated he would ask the same, at which point I pointed out the American Rule and stated he had no basis (law or contract) to ask for fees. That stopped the lawsuit conversation and we started working to more cooperative negotiations. Had this been under English Rule, one of us would be paying $100k as I don't think it would have de-escalated.

Regarding this specific instance, I don't know how the suit was filed, but you typically ask for fees at the time of the suit. It may be that the next step is for the farmer to lien the property owner. But we don't know the details.

Well in your case he still could of asked for and won his legal fees back depending on the state statutes. That was in the suit against me. The reality is w/the American Rule, it's completely up to the judge to determine if any fees are awarded regardless of the side depending on what the state or federal statutes are. The American rule isn't a each side pays their own fees and that's it or that's all that applies, it's just a basic rule to start off with by default. then you look at other state and federal statutes to see if any of them allow for fees to be awarded, which most do in some way or another. Just because you said he had no contract or there was no law you where aware of doesn't mean there wasn't a state or federal statute in place that would allow him to get his fees back. Chances are there where as there are in most cases and it would be up to the attorney to find out which one it would fall under.

 

[wawoodwa]

Just because you said he had no contract or there was no law you where aware of doesn't mean there wasn't a state or federal statute in place that would allow him to get his fees back.

Agreed. He would have to find where he would prevail and get attorneys' fees. I knew I was able to ask for it.

 

[NorTracNY]

Well since most members of legislative bodies are lawyers it kinda figures that they are gonna set up a system where lawyers always make out well no matter what and it doesn't matter what's fair or makes sense who pays as long as all the lawyers get paid well.

I know an attorney very well that has the quote "If it wasn't for attorney's, we wouldn't need them" on their desk.

 

[lennyzx11]

I don't know about that. The guy that was thinking of suing me stated that he was willing to put up his money to do it. I stated that is ok and I am willing to go to the mat too, but I explained that if I prevail under Libel of Title, the law allows me to recover my fees. He stated he would ask the same, at which point I pointed out the American Rule and stated he had no basis (law or contract) to ask for fees. That stopped the lawsuit conversation and we started working to more cooperative negotiations. Had this been under English Rule, one of us would be paying $100k as I don't think it would have de-escalated.

Regarding this specific instance, I don't know how the suit was filed, but you typically ask for fees at the time of the suit. It may be that the next step is for the farmer to lien the property owner. But we don't know the details.

May I ask about this?
I understand that you could ask for recovery of attorney fees if you won. I don't quite understand why the opponent couldn't also request attorney fees from you if he won due to the "American rule". Or that the American rule would not protect him from your request.

This does seem to be a brilliant move on your part. Negotiations leaves both sides with a better feeling about the outcomes rather than a winner and loser does in a lawsuit which is based on attack and defend strategy rather than negotiation.

Thank you,
Lenny

 

[BleedingOrange]

In Canada, I would only ever hire a lawyer if they agreed to my conditions.
You only get paid if you win, and once you win and collect the money, you get an agreed to percentage.
Collecting the money seems to be much more difficult than actually winning the case.