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Lisa Rieger
Like indigent criminal defendants
and low income individuals with family law or housing problems,
potential plaintiffs in civil tort actions can suffer from their
inability to pay for attorneys and their lack of familiarity
with the court system. The goal of the tort system is to provide
remedy for harm. Historically, the formal right to such legal
redress for injury did not ensure the practical right to access
to the courts for those without the funds to pay for legal services,
but in the last half of the twentieth century, U.S. courts have
placed a higher priority on guaranteeing real access and greater
equality between parties in tort cases.
Now, however, tort reform efforts
nationwide may result in individuals' decreased access to the
courts for redress of grievances because of limits on recovery
and allocation of legal costs. Tort reform proponents have three
major goals: (1) to limit juries' ability to determine compensation
for injured persons; (2) to limit punitive damage awards; and
(3) to restrict the attorney contingency fee system that ensures
citizens without money access to the courts. These goals rest
on the perception that a "litigation explosion" of
frivolous and unfounded claims is increasing business and insurance
costs while providing windfalls for individual plaintiffs. It
is assumed that lowering levels for possible recovery and increasing
legal costs for plaintiffs will counteract this "litigation
explosion".
However, the measures proposed
for tort reform exacerbate the inequalities present in the reality
of litigation, in which individual citizens are often fighting
large, wealthy corporations with extensive litigation budgets.
Those who already have less access to the legal system, such
as women and others of lower incomes, will suffer the most, particularly
from limits on non- economic damages. According to Samuel R.
Gross and Kent D. Syverud ("Getting to No: A Study of Settlement
Negotiations and the Selection of Cases for Trial," 90 Mich.
L. Rev. 319 [1991]), a California study of settlements under
the current rules demonstrated unequal bargaining power between
plaintiffs and defendants in which risk-averse plaintiffs settled
cases for much less than their value.
One of the arguments in favor of
tort reform is that litigation results in higher insurance premiums,
and, most particularly, medical costs. However, medical malpractice
is, in fact, one area of tort where access to the courts is already
extremely limited. A 1990 public health study, Harvard Medical
Practice Study, estimated that only one in fifteen actual
cases of medical malpractice resulting in serious injury or death
in New York state was litigated. Thus, payment on malpractice
insurance claims is minimal at best. According to Deborah R.
Hensler ("Reading the Tax Litigation Tea Leaves: What's
Going On in the Civil Liability System?" in The Justice
System Journal 16(2), 1993), only 10 per cent of those injured
in medical malpractice or products cases attempt to assert legal
claims, while 50 per cent make claims in automobile injuries.
In addition, because Alaska does not require medical malpractice
insurance, the possibility of recovering for malpractice is already
limited in this state.
Alaska HB 158, which was passed
in the last legislative session but vetoed by Governor Knowles,
would narrow the private citizen's ability to redress grievances,
making the average individual even less powerful on the uneven
playing field of the courts. In particular, Section 13, by instituting
a more stringent form of the English rule, under which the loser
pays the attorney fees of the winner, would restrict the ability
to sue to those able to take the risk of bearing attorney costs.
Alaska already has a modified form of the English rule under
which the loser pays attorney fees, but the amount of fees is
set by the court. (If the recovery after trial is less than the
last offer, the prevailing party is also liable for attorney
fees.) Other provisions in the proposed measure would have restricted
children from suing tort feasors after two years, regardless
of their age at the time of harm. Currently the law allows suit
until two years after the age of majority.
Recognizing the need for a review
of the civil justice system in the wake of HB 158, the Governor
created the Task Force on Civil Justice Reform. The task force
includes representatives of the legal and business communities
and members of the public. Attorneys on the panel represent a
cross- section of interest including plaintiffs, industry, consumers
and insurers. The commission, which will begin work in September,
will review the volume and type of civil cases filed in Alaska
courts, including damages awarded. It will look at tort reform
measures elsewhere in the nation, analyze the recent Alaska proposals
as well as the existing laws and examine possibilities for improvement.
Recommendations, including any proposed statutes, will be submitted
by December 16, 1996.
Lisa Rieger is an assistant professor with the Justice Center.