Houston Personal Injury Attorney: History of the American Rule – Part 1

January 25, 2012 by

In my last post, Houston Personal Injury Attorney: Why the “American Rule” Is Important, I discussed the basics of this principle which has been a part of our country since its foundation. Since the law that both parties pay for their own attorney fees has come under threat recently, I thought I’d share an overview of the American Rule’s history. First, let’s examine how the concept of “Loser Pays” began.

 History of the “Loser Pays” Concept by a Houston Personal Injury Attorney

 The idea of paying the costs associated with filing a civil dispute can actually be traced back to Roman times. Around 450 B.C., the first law was recorded, The Law of the Twelve Tablets. Before a civil dispute was decided, each party would make an offering to the temple. The temple would then hear the case and make a ruling. Whoever lost would forfeit their offering to the temple in order to pay for the proceedings.

 Of course, you couldn’t simply hire a Houston personal injury attorney to represent your interests back then. The Roman system was very different from our own. Since it had religious implications, you could ask a lawyer for advice for free. And each party went into the proceedings knowing exactly how much they would have to pay if they lost the case. It was simply the total of their offering, so they would not be forced to bear any additional or unexpected costs of the other party. This is very different from what would happen if we changed to a “loser pays” system here in the United States since legal fees vary widely and can be very costly.

 Several hundred years later, the classical period of Roman law began, and everything changed. The defendant could be required to double his payment to the plaintiff if the defendant didn’t acknowledge his obligation to pay early on. This was seen as a penalty for litigating in bad faith. Also, this marked the beginning of paying for legal help, just as you would pay a Houston personal injury attorney today for advice on your case.

 And the Eastern Roman Empire began the very first official “loser pays” law, which is credited to Emperor Zeno. This eventually spread to the ecclesiastical courts of the Roman Catholic Church and the emerging nations of Europe.

 The British Empire took on this rule, which is often referred to as the “British Rule” in the context of the American Revolution. The Founding Fathers were certainly aware of the “loser pays” system but still chose to reject it. They felt that the American Rule was a fairer system, enabling everyone – both the rich and the poor – to fight for their rights in court on more even ground. Today, this is under threat, and as a Houston personal injury lawyer, I find this very concerning.

 If you or a loved one have been injured in an accident, contact Marc Whitehead, a board certified personal injury attorney in Houston, Texas or download our free ebook.