NCJ Number
165445
Journal
Judicature Volume: 80 Issue: 2 Dated: (September-October 1996) Pages: 88-92
Date Published
1996
Length
5 pages
Annotation
Alaska has required losers in civil suits to pay a portion of the winners' attorneys' fees since the 19th century (the "English rule"); this study shows that the effect on case filings and dispositions has been complex and contradictory.
Abstract
The Alaska Judicial Council measured fee-shifting's effect on several aspects of civil litigation: case filing, discouragement of frivolous lawsuits, and settlement strategy. Information was obtained from a representative sample of closed State case files and all Federal cases to which Rule 82 (fee- shifting rule) would apply; tort filing and caseload composition trends in Alaska and nationwide; interviews with 161 randomly selected, experienced litigators; and interviews with all State and Federal trial court judges in Anchorage. Surprisingly, the study found that fee-shifting played only a minor role in most cases. The study did identify some cases in which fee-shifting played a significant role; but even in these circumstances, the effects of Alaska's English rule were complex and often contradictory. Rule 82 awards are ordered or collected in only a small percentage of civil cases. Based on these findings, the Alaska Judicial Council recommended that policymakers carefully consider the likely consequences of attorney fee-shifting before adopting wholesale reforms. Particular caution is urged toward those who support fee-shifting because of anticipated effects, such as decreased claims, faster dispositions, and more settlements. The Judicial Council also recommended building flexibility into any fee-shifting system by specifying factors that merit a departure from the normal fee award.