Alaska's English Rule: Attorney's Fee Shifting in Civil Cases

• NCJ Number: 160910
• Author(s): S Di Pietro; T W Carns; P Kelley
• Date Published: 1995
• Length: 190 pages
• Grant Number(s): SJI-94-08G-H-317
• Sponsoring Agency: State Justice Institute
• Corporate Author: Alaska Judicial Council
• Sale Source: Alaska Judicial Council
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

Alaska is the only State in which the loser in a civil case routinely pays a portion of the winner's attorney's fees; this study examines how fee shifting works in Alaska and what effects it has on the processing of civil cases.

Abstract

Part I sets the context for the study's data and findings. It discusses practices in England (the "English rule"), traces the history of fee shifting in the United States (the "American rule"), and discusses more recent developments, such as the growing number of statutory exceptions to the American rule and proposals to implement fee shifting. Part I further describes how Alaska's fee-shifting rules have evolved since adoption in 1884, including speculation about why Alaska developed differently from the rest of the Nation. Also discussed are the legal issues surrounding the application of Alaska's Rule 82, including data from Alaska's State and Federal court case files and interviews with Alaskan attorneys about how the legal issues play out in practice. Part II of the report presents the bulk of the data and the findings of the study. It discusses national and Alaska court statistics to compare general litigation trends in Alaska to trends in other States. Groups of recently closed State and Federal court cases in Anchorage are used to show how Rule 82 operates in practice, that is, how often attorney's fee awards are made and how much money typically is awarded. Part II also explores how attorney fee-shifting affects attorneys' and clients' strategies and approaches to cases. Further, it explains how judges and experienced litigation attorneys view Rule 82. Part III presents conclusions and recommendations. The recommendations are divided into two sections, one aimed at a national audience and another aimed at local practitioners and policymakers. Appended methodology, study instruments, interview data, composition of case samples, attorney's fees in Alaska public interest litigation, and attorney's fees under Alaska's rule of Civil Procedure 82