Wisconsin considers curbing “one-way” attorney fees

American legislatures since the 1970s have widely employed “one-way” fee provisions — under which courts award fees to prevailing plaintiffs, but not to prevailing defendants — as a way of encouraging plaintiffs and their lawyers to bring a maximum of legal action; especially when the fee shifts are generously calculated, such provisions also put strong pressure on defendants to settle potentially defensible cases rather than take the risk of a big fee award that may exceed the sums in controversy. Now Wisconsin lawmakers are thinking of making the playing field a bit more level by reining in one-way awards, especially those that exceed the underlying dispute; another way of approaching the issue, of course, would be to make the shifts two-way. [Rick Esenberg]

3 Comments

  • awesome.

  • Ideally, the USSC would have ruled a long time ago that one-way attorney fees were a violation of the “equal protection of the laws,” but the current unfair system is now deeply embedded in “stare decisis.”

  • Now, maybe Congress should look at doing the same for 42 USC 1988.