By: Kevin D. Koons

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 frivolous claims? If they asked before their opponent’s appeal rights expired, they would risk stirring their opponent to file an appeal and further prolong already frivolous litigation. But if they asked after their opponent’s appeal rights expired, they may risk the request being deemed too late because the request was not part of the original judgment.

Fortunately, the Indiana Supreme Court recently clarified this question in R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012), stating that a request for attorneys’ fees presents issues that are separate from the underlying merits of the case and thus are separate from the underlying original judgment. As a result, the specific time limits that normally apply to motions to modify a prior judgment do not apply to a prevailing party’s requests for attorneys’ fees. As the Court said, “A request for attorneys’ fees almost by definition is not ripe for consideration until after the main event reaches an end. Entertaining such petitions post-judgment is virtually the norm.” The Court also cautioned, however, that trial judges have discretion to deny a request if it’s “extremely tardy” or an opposing party did not have fair notice.

Thus, if you’re encountering frivolous actions by your opponent in a lawsuit, it’s generally a good strategy to let the other side know that you think its actions are frivolous and that you intend to seek fees. Then, after you’ve prevailed on the merits, wait until your opponent’s appeal rights have expired before asking the court to award fees. Even so, judges have wide discretion on whether particular conduct or claims are “frivolous” and whether fees should be awarded, so recovering your legal fees is by no means guaranteed, but by waiting until after appeal rights have expired, you put yourself in a better position of ending the litigation early rather than inadvertently stirring your opponent into filing a frivolous appeal.

You should also consult with your lawyer, who can help guide you through the process. While no lawyer can predict or guarantee the outcome of any litigation, including attorneys’ fee claims, they may be able to give you at least a general sense of how likely your efforts to recover your legal fees are to succeed and advise you of any risks.