Abstract

http://ssrn.com/abstract=2336669
 


 



Attorney Fees in a Loser Pays System


Theodore Eisenberg


Cornell University - Law School

Talia Fisher


Tel Aviv University - Buchmann Faculty of Law; Harvard Law School; Harvard University - Edmond J. Safra Center for Ethics

Issachar Rosen-Zvi


Tel Aviv University - Buchmann Faculty of Law

October 6, 2013

Cornell Legal Studies Research Paper No. 13-95

Abstract:     
Attorney fees fund litigation yet little is known about fees in most cases. Fee data are rarely available in the United States or in English rule, loser pays, jurisdictions. This Article analyzes fee awards in Israel, which vests judges with discretion to award fees, with loser pays operating as a norm. The 2641 cases studied constitute nearly all cases terminated by judgment in district courts in 2005, 2006, 2011, and 2012. Given many fee denials, and fees when awarded being well below client payments to attorneys, the fee system could reasonably be characterized as being more American than English. Fees were awarded to prevailing parties in 72.8 percent of cases. Judges often exercised their discretion to protect losing litigants, especially individuals, from having to pay fees. In tort cases won by individuals against corporate defendants, corporations paid their own fees plus plaintiffs’ fees in 99 percent of the cases; corporate defendants that prevailed in such cases paid their own fees 48 percent of the time. Asymmetry between plaintiffs and defendants existed. In cases with fee awards, the mean and median fee paid to prevailing plaintiffs was 110,000 shekels (NIS) and 31,000 NIS, respectively; the mean and median fee paid to prevailing defendants was 49,000 NIS and 25,000 NIS, respectively. Plaintiffs prevailed in 54.8 of cases between individuals but received 90 percent of the fees. Expected award amounts varied by case category and party status. Fees were significantly correlated with damages recoveries in plaintiff victories and with time on the docket. In contract and property cases, but not in tort cases, fees declined as a percent of recovery as the recovery increased.

Number of Pages in PDF File: 31

Keywords: attorney fees, tort, contract, English rule, American rule, litigation, loser pays, litigation funding

JEL Classification: K10, K11, K12, K13, K40, K41

Accepted Paper Series





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Date posted: October 8, 2013 ; Last revised: March 5, 2014

Suggested Citation

Eisenberg, Theodore and Fisher, Talia and Rosen-Zvi, Issachar, Attorney Fees in a Loser Pays System (October 6, 2013). Cornell Legal Studies Research Paper No. 13-95. Available at SSRN: http://ssrn.com/abstract=2336669 or http://dx.doi.org/10.2139/ssrn.2336669

Contact Information

Theodore Eisenberg (Contact Author)
Cornell University - Law School ( email )
524 College Ave
Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-6477 (Phone)
607-255-7193 (Fax)
Talia Fisher
Tel Aviv University - Buchmann Faculty of Law ( email )
Ramat Aviv
Tel Aviv 69978, IL
Israel
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
Harvard University - Edmond J. Safra Center for Ethics ( email )
124 Mount Auburn Street
Suite 520N
Cambridge, MA 02138
United States
Issachar Rosen-zvi
Tel Aviv University - Buchmann Faculty of Law ( email )
Ramat Aviv
Tel Aviv 69978, IL
Israel
HOME PAGE: http://www.law.tau.ac.il/Eng/?CategoryID=242&ArticleID=202
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