Matthew Naiman


Alaska is unique among the fifty states in its use of a version of the English rule of attorneys' fees in civil cases. Alaska Rule of Civil Procedure 82, in combination with several other rules, effectuates a fee shift such that the losing party pays a portion of the winning party's attorneys' fees. Rule 82 has two fee schedules: one for monetary judgments and one for non-monetary judgments. The monetary judgment fee awards are based in part on the amount of the judgment, while the non-monetary judgment fee awards are based on the victorious party's actual, reasonable attorneys' fees. This difference in the way fee awards are calculated creates a disparity between plaintiffs, who seek damages, and defendants, who seek dismissal. While previous scholarship has noted this disparity, no commentator has proposed and defended a solution. This Note examines the English and American Rules historically and through a law and economics framework. It then analyzes Rule 82 and its companion rules. Ultimately, this Note concludes that the Alaska Supreme Court or the Alaska State Legislature should alter Rule 82 to create better parity between plaintiffs and defendants and cap the amount of fees that can be exacted from a defeated party.

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