2018 Damages in Civil Litigation Course
KH Founding Partner Kurt Kuhn spoke on proving and defending attorneys’ fees in Texas at the State Bar’s 10th Annual Damages in Civil Litigation Course. Kuhn explained that one major impediment to proving or defending against attorneys’ fees claims is mindset. As Kuhn wrote, “The issue of attorneys’ fees is often a litigation afterthought—appearing at the back of the pleadings, raised through the last witness or even after trial, and discussed at the end of the appellate opinion. It makes sense to present the merits of a case before talking about fees. But fee-shifting is becoming increasingly more available in Texas, the law more developed, and the stakes higher. Counsel cannot afford to wait until the last minute to consider the issue of attorneys’ fees.”
The notion that parties generally pay their own attorneys’ fees is well-ingrained in the minds of Texas lawyers. Under the “American Rule,” fee-shifting is prohibited unless specifically provided for by contract or statute. But Texas now has over 200 different statutes that allow for fee-shifting, new fee-shifting rules, and fee-shifting provisions are increasingly prevalent in contracts. Specific procedural and evidentiary requirements for attorneys’ fees vary depending on the legal basis for fee shifting. But in his speech and article, Kuhn highlights some of the main points counsel should consider for proving up or defending against claims for attorneys’ fees in Texas.
Kuhn said that in modern Texas practice the “American Rule” should be thought of as “allowing fee shifting when allowed.” Given the varied and increasing number of situations in which attorneys’ fees can be awarded, counsel should not prematurely rule out the possibility of fee-shifting in any case. Instead, as with potential damages, for both plaintiff and defense counsel, the initial analysis and research for every case should include determining whether there is any basis for seeking recovery of attorneys’ fees.