April 24, 2019 Feature

Discovery of Opponents’ Attorney Fees in Fee-Shifting Cases

By Douglas R. Richmond

Assume for a moment that you are your law firm’s general counsel, the head of its litigation practice or a litigation practice area, or just one of those experienced lawyers in a firm to whom everyone seems to gravitate when they encounter situations that they have not encountered before. In any event, two of your partners approach you with a concern about discovery affecting your firm. They defended a client in litigation and lost. The opponent is now attempting to recover its attorney fees as a prevailing party, whether under a fee-shifting provision in a contract, a statute, or a court rule or under the insurance exception to the American Rule.1

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