When the Losing Side Pays Attorney Fees
Updated 2026-10-06
Many people assume that if they win a lawsuit, the other side will pay their lawyer. In the United States, that is often not true. The general rule is that each side pays its own attorney, win or lose. There are exceptions, though, and they can make a big difference in how a case is handled and whether it makes financial sense. This guide explains the basic idea of fee shifting in plain terms.
The general rule: each side pays its own lawyer
In many other countries, the losing side often pays at least part of the winner's legal fees. The usual approach in the United States is different. Each party generally pays its own lawyer, regardless of the outcome, unless a law or an agreement says otherwise. This approach is often called the "American rule."
Attorney fees are also different from court costs. Costs include items such as filing fees and transcripts. Courts often allow the winning side to ask for some costs, but that does not mean the winner gets attorney fees too. In federal court, the Federal Rules of Civil Procedure treat costs and attorney fees separately.
When fees may shift
"Fee shifting" means a court orders one side to pay some or all of the other side's attorney fees. This can happen in several general situations.
A law allows it
Some federal and state laws allow a court to award attorney fees to a party who wins certain types of claims. These laws often appear in areas where lawmakers wanted people to be able to enforce their rights even when the money at stake is small. Depending on the law and the state, this can include some claims involving:
- Civil rights
- Workplace rights and unpaid wages
- Consumer protection
- Housing and tenant rights
Whether a law allows fees, who can receive them, and on what terms are all specific to that law. Some laws allow fees only to one side, such as a worker or consumer who wins. Others allow them to whichever side wins. A lawyer can tell you whether any fee-shifting law applies to your claim.
A contract says so
Many contracts, such as leases, loan documents, and business agreements, include a clause about attorney fees. A common version says that if there is a dispute, the winning side can recover its fees from the losing side. Some clauses favor only one party. Some states have laws that affect how one-sided clauses work. If you have a written contract, look for a section about "attorney's fees," "costs of enforcement," or "collection costs."
A court penalizes conduct
Courts have power to order a party or a lawyer to pay fees in some situations involving improper conduct in the case, such as filing claims or papers without a proper basis or failing to follow court orders. This is not the same as simply losing. It is tied to how someone behaved during the case.
Why this matters before you start
Fee shifting can change the risk on both sides. If a law or contract allows fees to the winner, then:
- A person with a smaller claim may find a lawyer willing to take the case.
- The other side may face more pressure to settle.
- But if fees can go both ways, you could face a request to pay the other side's fees if you lose.
This is why it is worth asking about fees at the very start. Knowing the rules for your type of case helps you understand the possible upside and the possible risk.
How fee awards usually work
When fees can be shifted, the winning side usually has to ask the court for them. The court then reviews the request. In general, a court may look at how much time the lawyers spent, whether the work was reasonable for the case, and the results obtained. The court decides the amount, which may be less than what was actually billed.
Fee awards can also be part of settlement talks. Sometimes the parties agree on an amount for fees as part of the overall deal.
If your lawyer works on a contingency fee or another arrangement, ask how a court fee award would interact with your agreement. For example, ask whether an award would be credited against what you owe, or paid to the lawyer in addition. The answer depends on your written agreement and the law.
Questions to ask a lawyer
When you meet a lawyer, consider asking:
- Does any law allow attorney fees to be shifted in a case like mine?
- Does my contract have an attorney fee clause?
- Could I be ordered to pay the other side's fees if I lose?
- If fees are awarded, how does that affect what I pay you?
- How do court costs fit into this?
For workplace disputes, our employment law practice page lists lawyers who handle these claims. For civil rights matters, see our civil rights practice page. You can also read more plain-language legal guides.
If you cannot afford a lawyer
If you are worried about costs, the USAGov legal aid page lists programs that offer free legal advice and help finding free or low-cost attorneys. The USAGov laws and legal issues page is another starting point for finding help.
Frequently asked questions
If I win, will the other side pay my lawyer?
Not automatically. In the United States, each side usually pays its own lawyer unless a law or contract allows fee shifting.
Can I be ordered to pay the other side's lawyer?
It is possible in some situations, for example under certain contract clauses or laws, or as a penalty for improper conduct. Ask a lawyer about the risk in your case.
Are court costs the same as attorney fees?
No. Costs include items like filing and transcript fees. Attorney fees are treated separately under most rules.
Does a fee award go to me or my lawyer?
It depends on the law and your fee agreement. Ask your lawyer to explain how an award would be handled before you sign.
This page is general information, not legal advice. Laws change and every case is different — talk to a licensed attorney about your situation.