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A Different Kind of Fee-Shifting Contract Clause
Contracts often include a fee-shifting provision based on who ultimately prevails in a lawsuit. The idea, of course, is both to deter marginal litigation and, in all circumstances, to provide the prevailing party with compensation for the substantial fees and expenses that often attend litigation.
While sensible in the abstract, these clauses often do not work as advertised, neither deterring litigation nor providing sufficient compensation. This article accordingly proposes a different kind of fee-shifting clause, one triggered not by who ultimately prevails in a lawsuit, but by who prevails on certain specified motions that commonly add unnecessary expense and delay to dispute resolution proceedings.
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