Am Jur 2d - Damages § 444

III. Compensatory Damages, F. Additional Elements of Compensation, 2. Litigation Expenses and Attorney's Fees, a. Expenses Incurred in Litigation with the Same Party, § 444 - Generally

Attorney's fees and litigation costs are not ordinarily recoverable as an element of damages, in the absence of a statute or enforceable contractual provision providing for them.[1] As a reason for this rule, the so-called "American rule," the U.S. Supreme Court has stated that since litigation is uncertain, one should not be penalized for bringing or defending a lawsuit and that if the penalty for losing includes paying the opponent's counsel, the poor will be unjustly discouraged from instituting actions to vindicate their rights.[2] Another reason is that the time, expense, and difficulty of proof inherent in litigating the reasonableness of the attorney's fees would impose a substantial burden on judicial administration.[3]

Observation:

The "American rule" as to litigants being responsible for their own attorney's fees has been observed from the earliest days of the Republic. The Supreme Court, in 1796, stated that attorney's fees should not be allowed because the "general practice of the United States is in opposition to it; and even if that practice were not strictly correct in principle, it is entitled to the respect of the court, till it is changed, or modified, by statute."[4]

Cases:

When a lawsuit has multiple claims, courts look at each individual claim to determine what statutory basis allows attorney fees recovery on that claim. Sims v. Jacobson, 157 Idaho 980, 342 P.3d 907 (2015) .

Attorney fees may not be awarded in the absence of express statutory authority. Lacey v. Kirk, 767 S.E.2d 632 (N.C. Ct. App. 2014) .

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1   Great American Ins. Co. v. AFS/IBEX Financial Services, Inc., 612 F.3d 800 (5th Cir. 2010) (applying Texas law) ; Tolar Const., LLC v. Kean Elec. Co., Inc., 944 So. 2d 138 (Ala. 2006) ; Sisters of Providence In Washington v. A.A. Pain Clinic, Inc., 81 P.3d 989 (Alaska 2003) ; Aaron Manor, Inc. v. Irving, 307 Conn. 608, 57 A.3d 342 (2013) ; SIGA Technologies, Inc. v. PharmAthene, Inc., 67 A.3d 330 (Del. 2013) ; Pajic v. Foote Properties, LLC, 2013 WL 3820973 (D.C. 2013) ; Price v. Tyler, 890 So. 2d 246 (Fla. 2004) ; Nelson v. Hawaiian Homes Com'n, 2013 WL 3364401 (Haw. 2013) ; Chartrand v. Riley, 354 Mass. 242, 237 N.E.2d 10 (1968) ; Haliw v. City of Sterling Heights, 471 Mich. 700, 691 N.W.2d 753 (2005) ; Stickney v. Goward, 161 Minn. 457, 201 N.W. 630, 39 A.L.R. 1216 (1925) ; Shelton v. Tamposi, 164 N.H. 490, 62 A.3d 741 (2013) ; Walker v. Giuffre, 209 N.J. 124, 35 A.3d 1177 (2012) ; Rich v. Orlando, 108 A.D.3d 1039, 969 N.Y.S.2d 324 (4th Dep't 2013) ; State ex rel. Doe v. Smith, 123 Ohio St. 3d 44, 2009-Ohio-4149, 914 N.E.2d 159 (2009) ; Eade v. First Nat. Bank, 117 Or. 47, 242 P. 833, 43 A.L.R. 374 (1926) ; Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1965) ; Layman v. State, 376 S.C. 434, 658 S.E.2d 320 (2008) ; Taylor v. Fezell, 158 S.W.3d 352 (Tenn. 2005) ; Dewberry & Davis, Inc. v. C3NS, Inc., 284 Va. 485, 732 S.E.2d 239 (2012) ; Evans v. Moyer, 2012 WY 111, 282 P.3d 1203 (Wyo. 2012) .
 For further discussion, see Restatement Second, Torts § 914(1) .
 As to statutory provisions authorizing recovery, see § 447 .
 As to the application of this rule in federal court actions, see Am. Jur. 2d, Federal Courts §§ 194 to 197 .
 As to the legality of a contractual provision for attorney's fees, costs of collection, or legal expenses, see Am. Jur. 2d, Contracts §§ 288 to 290 .

2   Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967) .

3   Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967) .

4   Arcambel v. Wiseman, 3 U.S. 306, 3 Dall. 306, 1 L. Ed. 613, 1796 WL 896 (1796) .

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