Attorneys' Fees Awarded to the Prevailing Party: the Ghost of S.b. 258 Revisited
| Publication year | 1982 |
| Pages | 3003 |
1982, December, Pg. 3003. Attorneys' Fees Awarded To the Prevailing Party: The Ghost of S.B. 258 Revisited
A few short years ago the now so well-known case captions of Brown v. Board of Education, Mapp v. Ohio, and Miranda v. Arizona were yet to be learned. No fault divorce, comparative negligence, strict liability in tort (Restatement 2d, § 402A), consumer protection and anti-discrimination laws (to name a very few) were yet to emerge as a part of our system of justice. In the last twenty-five years, the legal system of this country has undergone a breathtaking revolution. This state of affairs was stimulated by a populace and bar determined to protect and enhance the freedom and dignity of the individual and was achieved, in no small measure, by the wide open doors of the courts to the citizens.
The constantly growing stream of litigation into the court system has paralleled the growth in new claims and legal theories and has resulted in overworked and under paid judges, court congestion, lengthy delays in getting a case to trial and ever-rising costs to the party litigants. These are problems that must be addressed. Numerous proposed solutions have been studied and tried with varying degrees of success. One more proposed "solution" is the subject of this article.
On January 22, 1981, Colorado State Senator P. Powers introduced Senate Bill 258 in the hope of reducing court congestion and increasing access thereto.(fn1) The Bill was entitled, "A Bill for an Act Concerning Judgments in Civil Actions and Including Attorney's Fees as an Element Thereof" and provided that in all civil actions attorneys' fees would be paid by the losing party.
While Senate Bill 258 passed the Colorado Senate, the House postponed it indefinitely. Yet, the perception that a bill such as Senate Bill 258 would correct many existing problems within the judicial system remains. It is quite possible that a similar bill will be introduced in the forthcoming session of the state legislature.
Senator Powers spoke of two reasons for introducing Senate Bill 258. First, the Senator contended that enactment of the Bill would promote the settlement of suits before protracted court battles were fought. As a result, court congestion would be reduced. "I submit," the Senator argued, "if this (Bill) were to pass (people) would think twice if it was a frivolous matter.(fn2) The cost of pursuing a groundless claim would become expensive and potentially prohibitive.
Second, the Bill's passage would make the judicial system more receptive to legitimate claims which are currently not brought due to high attorney costs of pursuing such suits.(fn3) As a result, those with meritorious claims could take them to court knowing that they would not have to pay for any costs of litigation. Furthermore, if victorious, a party would truly be made whole since he would not be responsible for paying the expenses it took to win the claim.
Along with providing that the losing party in civil actions would pay all attorneys' fees, the Bill left it to the court to decide which party actually prevailed. After that determination is made, the court would then have the authority to award reasonable attorneys' fees. However, each attorney and client would still be free to enter into a separate fee arrangement.
The concept whereby a losing party in a civil action pays all attorneys' fees is not new. This system of assessing costs (attorneys' fees plus court expenses) is derived from the English. The English rule requiring that the losing party pay all costs has existed at least since 1275 when the Statute of Glourester provided that costs would be awarded to successful plaintiffs.(fn4) By 1607...
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