There's a large space I will call "medium claims" in which lawyers are required for a plaintiff to seek judicial remedies, but the cost of litigation vs. the potential recovery leaves too much uncertainty in the risk/return calculus for aggrieved parties to actually sue. (This may be intentional and a public good, since it reduces the burden on the courts.)

Are there conditions in which the award of costs is relatively deterministic? I.e., are there jurisdictions and/or claims in which a plaintiff can expect with some certainty to be awarded all costs and fees if he prevails?

Just to illuminate my question, here are examples of the form of answers I can imagine, but the content of which is completely made up:

  • In virtually all common law claims in which a finding of "gross negligence" is sustained, the plaintiff is awarded all costs.
  • In claims for statutory damages that allow for recovery of costs, a prevailing plaintiff is awarded costs 50% of the time, but a losing plaintiff is ordered to pay the defense's costs 90% of the time.
  • Federal courts nearly always follow any cited precedent in awarding costs when they are requested.
  • State judges are so mercurial that nobody can predict if or how they will award fees in any case.
  • Just found w.r.t. Section 1983 actions: The prevailing party should ordinarily recover an attorney's fee "unless special circumstances would render such an award unjust." Blanchard v. Bergeron, 489 U.S. 87 (1989). A defendant, as the "prevailing party," may only recover attorney's fees "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even if not brought in subjective bad faith." Christianberg Garment Co. v. EEOC, 434 U.S. 4012 (1978).
    – feetwet
    Commented Dec 3, 2017 at 19:12


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