Access to Justice Series: What is Fee Shifting?

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Access to Justice Series: What is Fee Shifting?

The norm in civil litigation is for parties to pay their own legal fees when they wish to have their legal rights protected in court.  The problem with this system is that too often the cost of litigation prevents ordinary citizens from using the system.  The costs are too much for most unless you are a large corporation or have deep pockets.  This entry is intended to review the exceptions to this rule that we commonly use as tools to provide our client’s access to the system of justice.  Fortunately, fee shifting laws modify the general “pay your own way” rule in a variety of circumstances.  These laws are important because without them, many peoplecould not afford to seek to enforce their rights and remedies in the courts.  Fee shifting laws level the playing field and promote the allocation of justice regardless of financial means.

Claims under $10,000 

If one suffers a personal injury or property damages of less than $10,000, Oregon law, ORS 20.080, allows the victim to recover the loss and his or her reasonable attorney fees if the amount recovered in litigation exceeds any amount offered before suit is filed.  This provision is very helpful in auto accident claims because historically the auto insurance companies have undercut their offers in smaller cases knowing that claimants could not afford to challenge them in court.  Without this law, the cost of experts and attorney fees created a disincentive for claimants to challenge settlement offers on these kinds of cases.  Because of 20.080, even
smaller claims can be challenged and we are able to hold insurance companies accountable.

Insurance Benefits

What is one to do if their insurance company denies a claim for benefits under the policy?  Oregon law, ORS 742.061, allows policy holders to recover reasonable attorney fees when seeking benefits for wrongful denials by their insurance company if they prevail.  This provision applies to virtually all insurance policies and claims.  Here again, without this law, one would not be able to afford challenging a multimillion dollar insurance company over its denial of a claim.

Prevailing party fees 

In all civil cases in state court, parties are entitled to recover some of their litigation costs if they win.  The prevailing party may recover his or her court filing fee, service fee, trial fee, witness fees, and a prevailing party fee of $550.  Although this is helpful, these expenses are but a fraction of the expenses needed to pursue litigation.  Prevailing party fees do not cover attorney fees or the expense of expert witnesses.  Prevailing party fees are reciprocal, meaning that a claimant who loses his or her case is responsible for paying the court fees and a prevailing party fee to the defendant.

 

Rental Property Disputes

Tenants with claims against their landlord may sue and recover attorney fees if they prevail.  We use this provision in cases where a tenant or an authorized visitor is injured due to a violation of the habitability requirements set forth in the Residential Landlord Tenant Act.  The right to reasonable attorney fees in these cases is reciprocal.  In other words, you get your attorney fees if you win but you pay the defendant’s attorney fees if you lose.  For this reason, cases brought under this law must be evaluated very carefully before taking them to
court.

As always, feel free to contact our firm to schedule a free initial consultation so that we may explain any of the above or answer other questions you might have.

The above information is NOT a substitute for legal advice and should not be interpreted as the dissemination of legal advice. It is only meant as general guidance on various issues which may be applicable to your situation. It is critical that you consult with an experienced attorney before taking any legal action or have specific questions addressing your particular case answered

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