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“How can I make them pay for my attorney?!” – Timing your attorney fee request in Indiana State Courts
Congratulations. You’ve just been served with a summons for a silly lawsuit. You now get the privilege of hiring a lawyer to defend you, but why should you have to pay to defend a frivolous claim? Can’t you make the other side pay for your legal fees? Anyone who has been involved in America’s legal system has probably learned that getting the other side to pay for your legal fees is a challenging battle, certainly not the norm. Under the so-called “American Rule,” a party must pay his own attorneys’ fees unless there is a specific statute or some agreement between the parties that provides otherwise. One such statute is the “frivolous claim” statute, which allows a party who prevails in litigation to recover his legal fees if the other party engaged in frivolous or bad faith litigation. Indiana’s frivolous claim statute is found at IC 34-52-1-1, and most U.S. states have similar statutes. Indiana even has a separate statute specifically dealing with government entities at IC 34-13-3-21. Indiana’s frivolous claim statute applies both ways; that is, either a plaintiff or a defendant can be guilty of engaging in frivolous or bad faith litigation and be forced to pay the other party’s legal fees. So even if you’re defending a silly lawsuit, you’d better make sure that you don’t also engage in frivolous conduct in how you put on your defense. In the past, a party with an opponent litigating frivolously faced a procedural and strategic dilemma—when should they ask the court to award fees for…
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