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

     On the morning of January 14, 1985, a young pregnant woman was assaulted and raped at knifepoint in her bed, while her two-year-old daughter slept beside her. ¹ Four months after the rape, the victim spotted her alleged assailant, Kevin Byrd. ² Her identification of him led to a rape conviction with a life sentence. ³ At the time of Mr. Byrd’s trial, DNA technology, using forensic testing and analysis of biological evidence, was not standard practice. ⁴ In 1997, while the case was on appeal, a comparison of Mr. Byrd’s DNA with the bodily fluid found in the rape kit established that Mr. Byrd could not have committed the rape. ⁵ After serving 12 years in prison, Mr. Byrd was exonerated as a result of the scientific advancements in DNA technology. ⁶