At some point during the course of a lawsuit, almost every client asks the following question: “If we win, can I make the other side pay my attorneys’ fees?” The question is only natural. You are involved in the case either because you believe you have been wronged or because the other side has accused you of wronging them. If you are vindicated and receive a favorable verdict, shouldn’t you also be able to recover the fees you have had to pay? In most instances – and for good reason – the answer has traditionally been no.Indiana, like most other states, follows the “American Rule.” Under this system, each party to a lawsuit bears its own legal fees and expenses regardless of whether it prevails. In contrast, much of the rest of the world has adopted the “English Rule” under which the losing party pays the fees incurred by the winning side.
 
The most common argument in support of the American Rule is that it provides for greater access to the courts and thus, is more in keeping with our democratic principles than the English Rule. The United States Supreme Court explained this rationale as follows:
 

In support of the American rule, it has been argued that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.

 
The topic, however, remains the subject of debate. Critics of the American Rule, including Indiana Governor Mike Pence, see it as encouraging frivolous litigation. Essentially, the argument is that plaintiffs are able to file meritless claims without the fear of any adverse consequence. They are then are able to use this as leverage to force innocent defendants into paying settlements in order to avoid incurring potentially crippling defense costs. To combat this, Governor Pence has advocated adopting the English Rule and requiring Indiana courts to award fees to the prevailing party in all civil litigation.