15 Ind. Int'l & Comp. L. Rev. 583 (2004-2005)
Attorney Fee-Shifting in America: Comparing, Contrasting, and Combining the American Rule and English Rule

handle is hein.journals/iicl15 and id is 591 raw text is: ATTORNEY FEE-SHIFTING IN AMERICA:
COMPARING, CONTRASTING, AND COMBINING
THE AMERICAN RULE AND ENGLISH RULE
David A. Root*
I. INTRODUCTION
The headline in the New York Times read, You Win but You Lose, as
the author lamented about the money he had to pay out in successfully
defending himself in a libel suit.' While the amount was only $5,134.80 (small
fees in comparison to many lawsuits), the fact that frivolous lawsuits could be
pursued by hasty plaintiffs without the threat of having to pay a successful
defendant's legal costs inflamed the author as he was bitten by the American
rule.2 Like him, other commentators and judicial experts have clamored for
the adoption of the English loser pays rule in many areas.of the law, hoping
to decrease frivolous and unreasonable litigation.3
However, it is not all a bed of roses on the other side of the Atlantic. In
London, England, Pauline Hughes brought an action against the treating
physicians following her late husband's death caused by his gall bladder
surgery.4 After an initial victory in the trial court and an award of $396,000,
the appellate court overturned Mrs. Hughes' victory and, in accordance with the
loser pays rule, ordered her to pay the successful doctors' litigation
expenses.5 These expenses totaled $144,000, on top of her own legal fees of
$146,000, thus totaling $290,000 in an attempt to sort out and make right the
tragic events befallen her deceased husband.6
Suffice it to say, there are short-comings and limitations to both the
7
American and English systems of allocating attorneys fees. However, there are
* J.D./M.B.A. candidate, 2006, Indiana University School of Law - Indianapolis,
Kelley Graduate School of Business - Indianapolis. The author wishes to thank his parents,
Clyde R. and Maryanne Root, as well as his brothers, Mark and Jon Root, for all of their love,
support and encouragement.
1. Steven Brill, You Win but You Lose, N.Y. TIMES, July 2, 1980, at A27.
2. Id.
3. Robert Brookins, Mixed-Motives, Title VI, and Removing Sexism from Employment:
The Reality and the Rhetoric, 59 ALB. L. REv. 1,51 n.250 (1995) (Congress can substantially
reduce the threat from frivolous litigation by requiring losers to pay the opponent's attorney
fees.).
4. John F. Vargo, The American Rule on Attorney Fee Allocation: The Injured Person's
Access to Justice, 42 AM. U. L. REv. 1567, 1568-69 (1993).
5. Id. at 1569. The physicians based their appeal solely on the merits of Mrs. Hughes'
medical negligence claim, and in no way argued that Mrs. Hughes' counsel had acted in an
abusive manner. Id.
6. Id.
7. Gregory E. Maggs & Michael D. Weiss, Progress on Attorney's Fees: Expanding the

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