In England, the loser of a lawsuit must pay the attorney fees of the winning party.
In Kootenai County and elsewhere in Idaho, the Courts require each party to pay their own attorney fees. Thus, these two systems have become known as the English Rule and the American Rule.
The American Rule poses a real dilemma for persons who have been wronged or sustained damages in a relatively small amount. For example, assume you loaned a friend $3000 but he has failed to repay the loan. Hiring a lawyer to sue that person and bring him to trial would eat up most or all of the $3000, thus making the litigation fruitless.
EXCEPTIONS TO THE RULE
Fortunately, Idaho has some statutes that do allow a judge to award attorney fees to the prevailing party in a lawsuit. Here are some examples:
- The Consumer Protection Act. Idaho statute 48-603 prohibits businesses from engaging in unfair and deceptive practices. If a person files a lawsuit under that act, and prevails at trial, the judge will award her the attorney fees she incurred, in addition to the damages sought in the underlying action.
- The Landlord Tenant law. If a tenant is wrongly evicted, or if a landlord is forced to go to court to evict a tenant not paying his rent, the judge will award the attorney fees incurred by the prevailing party.
- The Catch-All Attorney Fee Law. If you believe that you have sustained damages in an amount less than $35,000, you can be awarded attorney fees if you prevail at trial under the following conditions. Prior to filing suit, you must send a written settlement demand to the opposing party. If that party does not pay you that amount within 10 days, and you go to trial and win a money judgment, the Court will order the losing party to pay your attorney fees provided that, at trial, you recover at least 95% of the amount you asked for in your demand letter.
There are other Idaho and Federal statutes that provide for an award of attorney fees to the winning party. Consult with an experienced trial attorney to see if your case falls within one of these categories.