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Litigation Insurance

Global

Litigation Insurance in United States

Without general costs shifting, judgment and capital risk dominate over adverse costs.

The forum

US

New York

40.71° N · 74.01° W

  • Own-costs burden
  • Appeal risk on large verdicts
  • Contingent fee structures

Illustrative. The forum decides which exposures exist at all: its costs rules, its approach to security and how its judgments travel.

How can litigation insurance work in United States?

Without general costs shifting, judgment and capital risk dominate over adverse costs. That can shape which exposures dominate — own-costs burden, appeal risk on large verdicts, contingent fee structures — and therefore which structures may be considered. Availability, admitted status and enforceability of any instrument depend on the forum and on policy terms, and are confirmed matter by matter, subject to underwriting.

On this page2 min read
  1. Forum file
  2. Common risk types
  3. Relevant products
  4. Key considerations
  5. Enforcement
  6. Frequently asked

Forum file

United States

US

Costs rule
Each side bears its own, generally
Weight of adverse costs
Lower
What tends to dominate
Judgment, appeal and capital risk

Risks to check first

  • Own-costs burden
  • Appeal risk on large verdicts
  • Contingent fee structures

Structure may follow the procedural rules of the forum, not the parties' nationality. General orientation, not advice; rules have exceptions.

Common risk types

Under the American rule each side generally bears its own legal fees, so adverse costs exposure is usually limited.

The dominant risks are own costs, the risk of losing on the merits or on appeal, and — for defendants — large verdicts.

Relevant products

  • Judgment preservation insurance for plaintiffs holding large verdicts
  • Capital protection for funders
  • Contingency fee protection for firms
  • Adverse judgment or buyout cover for defendants and deal parties

Key considerations

Some courts and states require disclosure of litigation funding, and rules differ between districts and states.

Fee-shifting can still arise from contract, statute or offers of judgment, so the exposure should be checked matter by matter.

Enforcement

Federal and state judgments are enforceable across the US, but appeals can take years.

Where a judgment is under appeal, a defendant may post a supersedeas bond, which affects the plaintiff's recovery risk.

Frequently asked

Does the loser pay the winner's legal fees in the US?

Generally no. Under the American rule each side pays its own fees, unless a contract, statute or rule provides otherwise.

What litigation insurance is most used in the US?

Judgment preservation, capital protection for funders, contingency fee protection and adverse judgment or contingent risk cover, rather than adverse costs cover.

Is litigation funding legal in the US?

Generally yes, though some states restrict it and some courts require funding to be disclosed. Rules vary by state and district.

Is judgment preservation insurance common in the US?

It developed mainly in the US market for large verdicts under appeal, though capacity and appetite have varied after notable appellate reversals.

Can a defendant insure a US lawsuit?

Adverse judgment or contingent risk cover can cap a defendant's loss above an agreed level; appetite depends on the claim and the forum.

General information only. This page is not legal, financial, investment or insurance advice. Any insurance is subject to underwriting and to the terms of the policy wording issued.

Keep reading

Understand the exposure.

Technical analysis of litigation risk, how cover is underwritten and what drives cost — written for general counsel, funders, law firms and investors.

General information only. It is not advice and not an offer of insurance.