American rule in District of Columbia

2023Analysis In general, parties before the District’s courts are responsible for paying the costs and fees that their own attorneys incur during the course of litigation, a practice known as the “American rule.” Synanon Found., Inc. v. Bernstein, 517 A.2d 28, 35, 37 (D.C. 1986).

2023We have referred to this exception to the default American rule as the “bad-faith exception.” See Synanon, 517 A.2d at 37 .

1988This appeal followed. 4 II “The general, or American rule, is that in the absence of statutory authority the prevailing party may not recover attorney’s fees.” Andrews v. District of Columbia, 443 A.2d 566, 568 (D.C.) (citations omitted), cert. denied, 459 U.S. 909 , 103 S.Ct. 216 , 74 L.Ed.2d 172 (1982); accord, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 245 , 95 S.Ct. 1612, 1615 , 44 L.Ed.2d 141 (1975); In re Antioch University, 482 A.2d 133, 135-136 (D.C.1984); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 37 (D.C.1979).

1986Consequently, Article XI, 11.1(C) cannot be relied on for the relief the Association sought and was granted—an award for attorney fees based upon the entire litigation. 7 Apart from this, we are required to follow “the so-called American rule, which makes each litigant in a civil action, irrespective of the outcome of the case, shoulder the burden of paying his own lawyer.” Rachal v. Rachal, 489 A.2d 476, 480 (D.C.1985) (Reilly, J., concurring) (citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 , 95 S.Ct. 1612 , 44 L.Ed.2d 141 (1975), and In re Antioch University, 482 A.2

2023See Jung, 844 A.2d at 1112 (“We do not comprehend the bad faith exception to the American rule to allow the trial judge to sanction litigants for bringing colorable claims when they also happen to have other ulterior motives of questionable propriety.”).

2023See Jung, 844 A.2d at 1112 (“We do not comprehend the bad faith exception to the American rule to allow the trial judge to sanction litigants for bringing colorable claims when they also happen to have other ulterior motives of questionable propriety.”).

1988This appeal followed. 4 II “The general, or American rule, is that in the absence of statutory authority the prevailing party may not recover attorney’s fees.” Andrews v. District of Columbia, 443 A.2d 566, 568 (D.C.) (citations omitted), cert. denied, 459 U.S. 909 , 103 S.Ct. 216 , 74 L.Ed.2d 172 (1982); accord, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 245 , 95 S.Ct. 1612, 1615 , 44 L.Ed.2d 141 (1975); In re Antioch University, 482 A.2d 133, 135-136 (D.C.1984); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 37 (D.C.1979).

1988This appeal followed. 4 II “The general, or American rule, is that in the absence of statutory authority the prevailing party may not recover attorney’s fees.” Andrews v. District of Columbia, 443 A.2d 566, 568 (D.C.) (citations omitted), cert. denied, 459 U.S. 909 , 103 S.Ct. 216 , 74 L.Ed.2d 172 (1982); accord, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 245 , 95 S.Ct. 1612, 1615 , 44 L.Ed.2d 141 (1975); In re Antioch University, 482 A.2d 133, 135-136 (D.C.1984); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 37 (D.C.1979).

1988Perry v. O’Donnell, 759 F.2d 702 , 705 (9th Cir.1985); Motley v. Yeldell, 664 F.Supp. 557, 558 (D.D.C.1987).

1988Perry v. O’Donnell, 759 F.2d 702 , 705 (9th Cir.1985); Motley v. Yeldell, 664 F.Supp. 557, 558 (D.D.C.1987).

1988This appeal followed. 4 II “The general, or American rule, is that in the absence of statutory authority the prevailing party may not recover attorney’s fees.” Andrews v. District of Columbia, 443 A.2d 566, 568 (D.C.) (citations omitted), cert. denied, 459 U.S. 909 , 103 S.Ct. 216 , 74 L.Ed.2d 172 (1982); accord, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 245 , 95 S.Ct. 1612, 1615 , 44 L.Ed.2d 141 (1975); In re Antioch University, 482 A.2d 133, 135-136 (D.C.1984); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 37 (D.C.1979).

1986In re Antioch University, 482 A.2d 133, 136 (D.C.1984); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 37 (D.C.1979).

2023To assess attorneys’ fees under this exception, the court must first make a finding that the sanctioned party acted “in bad faith, vexatiously, wantonly, or for oppressive reasons,” Jumper I, 909 A.2d at 176 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991)), by clear and convincing evidence, In re Jumper (Jumper II), 984 14 A.2d 1232 , 1247-48 (D.C. 2009); see also Jung v. Jung, 844 A.2d 1099, 1108 (D.C. 2004) (placing this “heavy burden” on the party seeking sanctions).

2023To assess attorneys’ fees under this exception, the court must first make a finding that the sanctioned party acted “in bad faith, vexatiously, wantonly, or for oppressive reasons,” Jumper I, 909 A.2d at 176 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991)), by clear and convincing evidence, In re Jumper (Jumper II), 984 14 A.2d 1232 , 1247-48 (D.C. 2009); see also Jung v. Jung, 844 A.2d 1099, 1108 (D.C. 2004) (placing this “heavy burden” on the party seeking sanctions).

1988This appeal followed. 4 II “The general, or American rule, is that in the absence of statutory authority the prevailing party may not recover attorney’s fees.” Andrews v. District of Columbia, 443 A.2d 566, 568 (D.C.) (citations omitted), cert. denied, 459 U.S. 909 , 103 S.Ct. 216 , 74 L.Ed.2d 172 (1982); accord, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 245 , 95 S.Ct. 1612, 1615 , 44 L.Ed.2d 141 (1975); In re Antioch University, 482 A.2d 133, 135-136 (D.C.1984); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 37 (D.C.1979).

1988The bad faith exception “applies only in extraordinary cases.” Launay, 497 A.2d at 450 (citing Andrews v. District of Columbia, 443 A.2d 566, 569 (D.C.), cert. denied, 459 U.S. 909 , 103 S.Ct. 216 , 74 L.Ed. 2d 172 (1982)).

2024Bd. of Elections & Ethics, 625 A.2d 891 (D.C. 1993), this court explained that under the “American rule,” the person who receives the most votes but is deemed ineligible is viewed as a candidate whose votes must be counted in determining the election results, and that a runner-up finisher cannot be declared the winner in the event the winner is disqualified.

2024See id. at 895 (“[V]otes cast for a deceased, disqualified, or ineligible person are not to be treated as void or thrown away, but are to be counted in determining the result of the election as regards to other candidates. . . .

2016The court rejected this argument, declining to imply a fee-shifting provision for first-party actions establishing a right to indemnity where the contract does not expressly include such a provision, as under this ap *342 proach “the presumption of the American rule disallowing recovery of attorney’s fees would, in effect, be gutted.” Id. at 285.

2013AG, 164 F.Supp.2d 743, 758-9 (E.D.Va.2001) (internal quotation marks and citations omitted).

2011See Psaromatis, supra, 944 A.2d at 490 ; see also BSA 77 P St.

2011See Psaromatis, supra, 944 A.2d at 490 ; see also BSA 77 P St.

2009“When free legal services are provided there may be no direct barrier to the courtroom door, but if no fees are awarded, the burden of the costs is placed on the organization providing the services, and it correspondingly may decline to bring such suits and decide to concentrate its limited resources elsewhere.” Id.; see also McComb, 336 U.S. at 194 , 69 S.Ct. 497 (stating that a judge who believes that a particular civil contempt sanction is necessary to compensate a victim of the contempt “need not sit supinely by waiting for some litigant [i.e., the victim] to take the initiative”).

2009“When free legal services are provided there may be no direct barrier to the courtroom door, but if no fees are awarded, the burden of the costs is placed on the organization providing the services, and it correspondingly may decline to bring such suits and decide to concentrate its limited resources elsewhere.” Id.; see also McComb, 336 U.S. at 194 , 69 S.Ct. 497 (stating that a judge who believes that a particular civil contempt sanction is necessary to compensate a victim of the contempt “need not sit supinely by waiting for some litigant [i.e., the victim] to take the initiative”).

2008See In re Estate of Delaney, 819 A.2d 968, 998 (D.C.2008) (“Under these stringent standards, the awarding of attorneys’ fees for bad faith litigation is proper only under extraordinary circumstances or when dominating reasons of fairness so demand.”) (citations and quotation marks omitted).

2008See In re Estate of Delaney, 819 A.2d 968, 998 (D.C.2008) (“Under these stringent standards, the awarding of attorneys’ fees for bad faith litigation is proper only under extraordinary circumstances or when dominating reasons of fairness so demand.”) (citations and quotation marks omitted).

2004See Synanon Found., Inc., 517 A.2d at 36 (recognizing that the American rule is premised on the maxim that since litigation is uncertain in its outcome, one should not be penalized for prosecuting an unsuccessful lawsuit); see also Americana Indus., Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir.1977) (“Invocation of the bad faith exception ... requires more than a showing of a weak or legally inadequate case.”); Driscoll v. Oppenheimer & Co., 500 F.Supp. 174, 176 (N.D.Ill.1980) (“[T]he fact that this litigation ultimately proved to be misguided and unconvincing cannot in its

2004See Synanon Found., Inc., 517 A.2d at 36 (recognizing that the American rule is premised on the maxim that since litigation is uncertain in its outcome, one should not be penalized for prosecuting an unsuccessful lawsuit); see also Americana Indus., Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir.1977) (“Invocation of the bad faith exception ... requires more than a showing of a weak or legally inadequate case.”); Driscoll v. Oppenheimer & Co., 500 F.Supp. 174, 176 (N.D.Ill.1980) (“[T]he fact that this litigation ultimately proved to be misguided and unconvincing cannot in its

2004See Synanon Found., Inc., 517 A.2d at 36 (recognizing that the American rule is premised on the maxim that since litigation is uncertain in its outcome, one should not be penalized for prosecuting an unsuccessful lawsuit); see also Americana Indus., Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir.1977) (“Invocation of the bad faith exception ... requires more than a showing of a weak or legally inadequate case.”); Driscoll v. Oppenheimer & Co., 500 F.Supp. 174, 176 (N.D.Ill.1980) (“[T]he fact that this litigation ultimately proved to be misguided and unconvincing cannot in its

2004See Synanon Found., Inc., 517 A.2d at 36 (recognizing that the American rule is premised on the maxim that since litigation is uncertain in its outcome, one should not be penalized for prosecuting an unsuccessful lawsuit); see also Americana Indus., Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir.1977) (“Invocation of the bad faith exception ... requires more than a showing of a weak or legally inadequate case.”); Driscoll v. Oppenheimer & Co., 500 F.Supp. 174, 176 (N.D.Ill.1980) (“[T]he fact that this litigation ultimately proved to be misguided and unconvincing cannot in its

2004See Synanon Found., Inc., 517 A.2d at 36 (recognizing that the American rule is premised on the maxim that since litigation is uncertain in its outcome, one should not be penalized for prosecuting an unsuccessful lawsuit); see also Americana Indus., Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir.1977) (“Invocation of the bad faith exception ... requires more than a showing of a weak or legally inadequate case.”); Driscoll v. Oppenheimer & Co., 500 F.Supp. 174, 176 (N.D.Ill.1980) (“[T]he fact that this litigation ultimately proved to be misguided and unconvincing cannot in its

2004See Synanon Found., Inc., 517 A.2d at 36 (recognizing that the American rule is premised on the maxim that since litigation is uncertain in its outcome, one should not be penalized for prosecuting an unsuccessful lawsuit); see also Americana Indus., Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir.1977) (“Invocation of the bad faith exception ... requires more than a showing of a weak or legally inadequate case.”); Driscoll v. Oppenheimer & Co., 500 F.Supp. 174, 176 (N.D.Ill.1980) (“[T]he fact that this litigation ultimately proved to be misguided and unconvincing cannot in its

2001D.C. 68, 71, 402 F.2d 209, 212 (1968) (noting that the Restatement of Torts states “the American rule that no defamation action may be grounded on ... statements preliminary to or in the course of a judicial proceeding so long as the defamatory matter ‘has some relation’ — a standard broader than legal relevance — to the proceeding”).

2001D.C. 68, 71, 402 F.2d 209, 212 (1968) (noting that the Restatement of Torts states “the American rule that no defamation action may be grounded on ... statements preliminary to or in the course of a judicial proceeding so long as the defamatory matter ‘has some relation’ — a standard broader than legal relevance — to the proceeding”).

1998Co., supra note 4, the Supreme Court of Washington reiterated its holding in Olympic Steamship Co. The court stated that its decision "does not do violence to the American rule on attorney fees," 904 P.2d at 735 , because "an insurance contract is substantially different from other commercial contracts,” both in terms of disparity of bargaining power and because the purpose of obtaining such insurance is to avoid litigation and the expenses associated with it.

1998Co., supra note 4, the Supreme Court of Washington reiterated its holding in Olympic Steamship Co. The court stated that its decision "does not do violence to the American rule on attorney fees," 904 P.2d at 735 , because "an insurance contract is substantially different from other commercial contracts,” both in terms of disparity of bargaining power and because the purpose of obtaining such insurance is to avoid litigation and the expenses associated with it.