The history of the ideas and practices underlying workers’ compensation laws is varied. While many commentators attribute their origins to Prussian Germany in the latter half of the 1800s,[1] others have found early models of scheduled payments for loss of body parts under Hammurabi’s Code, which provided a set of rewards for injuries and their permanent impairments.[2] Regardless of when (or where) they began, workers’ compensation laws often have a unifying feature: in exchange for compensating an employee for work-related injuries without examination of fault, the employer is entitled to immunity from being sued under common law.[3] This quid pro quo concept has a significant role in employment discrimination cases.

I.              Introduction

            One of the most important considerations for any attorney is attorney fees: whether obtaining them or making sure that one does not have to pay them. This Article is a guide on how to navigate these important considerations. Specifically, this Article is a guide to practitioners and the judiciary on the general topic of attorney fees, the American rule, and the exceptions thereto. The first part of this Article examines the foundational principles of the American rule: i.e., that each party is responsible for their own attorney fees. The second part of this Article examines the myriad of exceptions to the American rule. This Section specifically addresses all of the exceptions that have emerged in the jurisprudence as well as the rules and statutory provisions that allow for the award of attorney fees, in spite of the American rule.

The fire moved quickly through the house as Cameron Todd Willingham screamed for his children from the front porch. ¹ Inside the blaze were his three children. ² Firefighters arrived, uncoiled hoses, and aimed water at the raging fire. ³ However, all three Willingham children died that night from smoke inhalation. ⁴

News of the December 23, 1991, tragedy spread throughout Corsicana, Texas. ⁵ Meanwhile, investigators sought to determine what caused the fire. ⁶ The investigators “toured the perimeter of the house, taking notes and photographs, like archeologists mapping out a ruin.” ⁷ In the kitchen, they found smoke and heat damage—signs the fire had not originated there—so they proceeded to other parts of the shambled home. ⁸