X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Photo: Andrii Yalanskyi via Shutterstock Photo: Andrii Yalanskyi via Shutterstock

When Sigmund Freud wrote “anatomy is destiny” referring to women (S. Freud, On the Universal Tendency To Debasement in the Sphere of Love (1912)), he could have been referring to female litigants in New York divorces who try to enforce the law entitling them to have their husbands pay their lawyer’s bills. The reason lies in New York’s application of the “American Rule” of legal fee reimbursement requiring that a litigant in a lawsuit pays her own attorney fees, regardless of the outcome of the litigation (Derfner and Wolf, 1 Court Awarded Attorney Fees ¶ 1.02[1] at 109 (1992)) as distinguished from the “English Rule,” which requires the loser of a lawsuit to pay the winner’s legal fees (Kritzer, The English Rule, A.B.A. J., Nov. 1992, at 54, 55). The practice encompassed by the English Rule is called “fee shifting.” The main purpose of fee shifting is to compensate the prevailing party, promote public interest litigation, punish or deter the losing party for misconduct, or prevent abuse of the judicial system. Note, State Attorney Fee Shifting Statutes: Are We Quietly Repealing the American Rule? Law & Contemp. Probs., Winter 1984 at 321, 328-45.

The English rule, which allows an attorney fee to be awarded to the prevailing party, is followed in all major common law nations except the United States. Although the American rule has been widely criticized in recent years (see, e.g., Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif. L Rev. 792, 798-99 (1966)) it was reaffirmed by the Supreme Court as recently as 1975 (Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975)).

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

Library of New York Matrimonial Law FormsBook

200+ model documents for forms on all aspects of divorce: complaints, answers, discovery, pendent lite motions, trials, appeals, enforcement modification of judgments ...

Get More Information
 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.