In a common law tort suit for negligence, courts follow the “American Rule,” where each side bears the costs for its own attorney’s fees. Thus, if the decision is favorable to the plaintiff , the plaintiff is not reimbursed by the defendant for the plaintiff’s attorney fees. Attorney fees in tort claims are typically calculated on either an hourly rate or a contingency fee basis. If fees are on a contigency basis, the plaintiff’s attorney gets a certain percentage of the damage award, usually 30 to 50 percent. However, the attorney does not get any monetary compensation if the plaintiff loses.
In 1975, Congress enacted the Civil Rights Attorney’s Fees Awards Act which authorizes Federal district courts to award reasonable attorney’s fees to prevailing parties in civil rights litigation brought under 42 U.S.C. 1983. Under Section 1988, a person who sues under Section 1983 and prevails in the lawsuit is entitled not only to damages but also to an award for attorney’s fees. These fees are calculated by multiplying the reasonable number of hours the attorney expended by a reasonable hourly rate. In many cases, the attorney’s fees of the plaintiff awarded under Section1988 exceed the damages awarded to the plaintiff.
Settlement of a law suit that a plaintiff is likely to win is extremely advantageous to a law enforcement defendant. By using Rule 68 of the Federal Rules of Civil Procedure (FRCP) to settle a case, a law enforcement defendant may limit attorney’s fees and other costs of litigation, such as expert witness fees. Rule 68 provides that a defendant in a lawsuit may offer to allow judgment to be taken against him or her with costs then accrued. If the offer of judgment is rejected by the plaintiff and the judgment finally obtained by the plaintiff is less favorable than the offer, the plaintiff must pay the costs incurred after the making of the offer. The costs include attorney’s fees. The rationale behind the rule is to encourage early settlements.