Clients ask whether they can separately recover their legal fees on top of the recovery for their injury or damage? Unfortunately, the answer is “no.”
This question makes sense in that if the defendant did not injure the client, the client would not be put to the expense of hiring an attorney to get a recovery. After all, the client is not profiting from the lawsuit. He is merely being made “whole” after a loss.
Under the so-called “American rule”, which is recognized in New York, each party of the lawsuit is responsible for his own legal costs. In comparison, under the “English rule”, the winner can recover his legal costs against the losing side.
A disadvantage of the American rule is that the injured party is not made “whole”. He must pay a portion of his recovery for his legal fees. On the other hand, an advantage is that a losing plaintiff will not burdened with defendant’s legal costs if defendant wins.
An exception to the rule is where either statute or a contract provides for the award of legal fees. But, as a general rule legal fees cannot be recovered in personal injury, property damage, and breach of insurance cases.
Mark E. Seitelman, 4/19/12, www.seitelman.com.