THE AWARDING OF ATTORNEYS' FEES AS AN ELEMENT OF JUST COMPENSATION

CASES ARE CITED WITH PRO AND CON HOLDINGS OF COURTS ON THE PAYMENT OF ATTORNEYS' FEES AS AN ELEMENT OF JUST COMPENSATION. IT IS CONCLUDED THAT UNDER PRESENT FEDERAL LAW COMPENSATION CANNOT BE GRANTED. ASSUMING THAT LEGISLATION WAS ENACTED TO INCLUDE ATTORNEYS' FEES AS PART OF JUST COMPENSATION, A BALANCE WOULD HAVE TO BE DRAWN BETWEEN THE TIME, EXPENSE AND DIFFICULTIES OF PROOF INHERENT IN LITIGATING THE QUESTION, WHICH WOULD POSE SUBSTANTIAL BURDENS FOR JUDICIAL ADMINISTRATION. HOWEVER, IF A LANDOWNER HAS NOTHING TO LOSE BY LITIGATING, THIS ELEMENT OF JUST COMPENSATION WOULD BE UNFAIR TO THE GOVERNMENT AND WOULD ONLY CLOG THE COURSE WITH USELESS LITIGATION. THE GOVERNMENT SHOULD HAVE THE RIGHT TO OBTAIN ITS LEGAL FEES WHEN A COURT'S AWARD IS NO GREATER THAN THE COMPENSATION ORIGINALLY OFFERED BY THE GOVERNMENT. SINCE LITIGATION IS AT BEST UNCERTAIN, ONE SHOULD NOT BE PENALIZED FOR MERELY DEFENDING OR PROSECUTING A LAWSUIT. IT APPEARS THAT THE AMERICAN PRACTICE OF NOT AWARDING COUNSEL FEES TO THE WINNING PARTY, WHILE POSSIBLY NOT THE BEST OF ALL PRACTICES, SEEMS TO HAVE WORKED ADEQUATELY WITHOUT CREATING GREAT HARDSHIPS.

  • Supplemental Notes:
    • No 76, pp 1-6, 10 REF
  • Publication Date: 1968-3

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Filing Info

  • Accession Number: 00238440
  • Record Type: Publication
  • Files: TRIS
  • Created Date: May 6 1994 12:00AM