“I prevailed in the trial court. Can I recover appellate attorney’s fees if the defendant/respondent takes an appeal?”
Ciyou & Dixon, P.C. appellate attorneys frequently are asked this question. The answer, broadly, is probably not.
Under the American Rule followed in Indiana, each party pays their own attorneys fees as a general rule. However, the Legislature has the authority to adopt statutory law to allow trial court’s to order a lawyer fee award and has done so in a few cases.
Perhaps the most commonly used statutory provision is in domestic relations cases. In these cases, based on bad behavior, different incomes or for other good reason, a trial court may order a party to pay Indiana appellate attorney’s fees for trial court proceedings or appellate matters.
This noted, however, the Court of Appeals (or Indiana Supreme Court) may also assess damages if an appeal is frivolous or brought in bad faith. These damages may include attorneys’ fees. For an aggrieved litigant who again prevails on appeal, Ciyou & Dixon, P.C. has a client inquire about a lawyer fee award from the Court of Appeals or trial court.
The Court of Appeals discretionary authority to award Indiana appellate lawyer fees is used with extreme restraint. The reason for the rare award of appellate attorney’s fees is because of the potential chilling effect upon the constitutional right to appeal.
In other words, if the Court of Appeals made a routine attorney’s fee award to a prevailing party on appeal, appeals would slow to a trickle or stop. Nevertheless, the Court of Appeals will impose sanctions and award attorney’s fees in egregious cases.
The Indiana appellate courts have differentiated two types of lines of arguments it considers in making an appellate lawyer’s fee award. The first is a party has engaged in substantive bad faith. This is a relatively simple concept and means there is no legal merit to the case argument.
The Court of Appeals has a stringent standard for assessing a case to be meritless: the legal claims on appeal must be utterly void of all plausibility, which implies conscious doing of a wrong because of dishonest purpose or moral obliquity. Namely, a party is appealing and raising a meritless argument solely to torment the other side.
The second type of situation in which the Court of Appeals may award Indiana appellate lawyer’s fees as a part of damages is for procedural violations. This occurs where a party flagrantly disregards the form and content requirements of the appellate rules.
However, this requires more than inattention to the appellate rules. Instead, there must be a pattern of the party flagrantly disregarding the form and content requirements of the appellate rules.
This may occur when a party omits and misstates relevant legal facts and/or files a brief that appears to have been written in a manner calculated to require the maximum expenditure of time by both the opposing party and the judges in the Court of Appeals.
At Ciyou & Dixon, P.C., we hope this information helps you, the Reader, to understand the extreme tension between bad faith and the award of Indiana appellate attorney’s fees and the constitutional right to appeal. Understanding the law is a big step toward knowing your legal rights and their potential outcomes.
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