Massachusetts adheres to the “American Rule” when it comes to litigants’ attorney fees. This rule requires both parties in a lawsuit to pay their own legal costs, regardless of the trial’s outcome. In other words, the winning party cannot recover his legal fees from the losing party. There are, however, three major exceptions to the American Rule.
Stipulation
Often parties to a contract will stipulate in writing that, if they find themselves embroiled in a lawsuit, the loser will pay the winners legal expenses. Such an agreement will be enforced by Massachusetts’ courts as an exception to the American Rule. Despite such an agreement, the winning litigant may recover only reasonable attorney fees. What constitutes “reasonable” legal costs will be determined by the trial judge.
Statute
Next a successful litigant may recover his legal costs if it is permitted by statute. Certain statutes expressly allow for legal-fee recovery as a consequence of their violation. The list of such statutes is too lengthy to recite here. But if you are weighing the pros and cons of litigation, you should consider the statutes at issue and determine whether they allow the winning side to collect attorney’s fees.
Order
Finally, the trial judge may require the losing side to pay the winning party’s lawyer. Such an order is rare, as it contradicts the generally adhered to “American Rule.” However, the trial judge may feel justified in taking such action if the losing party exhibited poor behavior during the proceedings, e.g., filing frivolous claims, abusing procedural rules, etc.
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