Attorney's Fees Research Articles

Medical malpractice and legal resolution systems in Japan.

Medical malpractice claims and dispute resolution systems have been examined in Western societies for their impact on the quality of care and efficient compensation for injured patients. However, little is known about the Japanese malpractice environment because claim information has been closely guarded. Based on data from the Japanese Supreme Court, the Ministry of Health, Labor, and Welfare (formerly the Ministry of Health and Welfare), and the Japan Medical Association (JMA), which provides malpractice insurance to 43.5% of Japan's 250 000 physicians, we review Japanese malpractice liability systems and the frequency of claims during the last 30 years. Annual premiums for physician professional liability insurance are relatively low (454 dollars-491 dollars). Although the frequency of claims in Japan is lower than that reported in the United States, England, and Germany, the number of claims is increasing in Japan. According to publicly available data from the Japanese Supreme Court, the annual number of medical malpractice suits filed in district courts has increased from 102 in 1970 to 629 in 1998 (from 0.09 to 0.25 per 100 physicians). The proportion of awards greater than 89 dollars 300 increased from 13.6% in 1976 to 65.4% in 1987. Among JMA members, claims increased 31% from 1987 to 1999, but the frequency of claims has remained at approximately 0.3 per 100 JMA members. The JMA's professional liability program offers a nonbinding out-of-court review of claims that is faster and less expensive than judicial resolution (a few months with no attorney required vs 35 months and attorney fees), but is a poor means of deterrence or discipline. Since JMA data represent only 43.5% of Japanese physicians, generalizations cannot be made about all Japanese physicians and institutions. The lack of data on all claims hinders adequate evaluation of dispute resolution methods, development of appropriate risk management activities, and proactive education for Japanese physicians.

Laidlaw: Redressing the Law of Redressability

Although much of standing doctrine protects decisionmaking by Congress and the executive branch, the Supreme Court ironically has more recently used standing doctrine to enhance its own power at the expense of Congress. In cases such as Lujan v. Defenders of Wildlife and Raines v. Byrd, the Court invalidated congressional grants of standing. The Court has transmuted standing from a means of protecting the majoritarian process into a judicial weapon that can override congressional judgments about the optimal enforcement of particular laws. Lujan contemplates that courts must independently assess each congressionally created injury to assure that the injury is individuated enough to satisfy the case or controversy requirement. The Court's determination last term in Friends of the Earth, Inc. v. Laidlaw Environmental Services, however, suggests that the Court is now willing to defer more to congressional creation of interests whose violation creates the necessary injury to give rise to standing. In finding that the environmental injury in Lujan was redressable, the Court arguably deferred to Congress's judgment that there was a significant risk of recurring harm in Clean Water Act cases. Imposing a fine on the defendant might redress the harm by deterring continued wrongdoing. This Article applauds that result. Congress has greater ability to assess social, economic, and technological trends that underlie the inquiry whether injury is likely to recur and whether a particular remedy is likely to deter the unlawful conduct. At the same time, encouraging such findings facilitates deliberation within Congress, and the findings enhance the transparency of legislative action. The Article then examines the extent to which courts should defer to congressional judgments that illuminate the link between relief and injury. It concludes that substantial deference to congressional factfinding is warranted unless Congress attempts to assure redressability merely by creating a stake in the litigation itself, as through a bounty or attorney's fee.

Aggregation, Auctions and Other Developments in the Selection of Lead Counsel Under the PSLRA

This article focuses on aggregation and auctions, two key litigation developments in the selection of counsel under the Private Securities Litigation Reform Act of 1995. After reviewing some of the background concerns, including collective action problems presented by the class action structure and issues regarding the award of attorneys fees, the article explains how the lead plaintiff provision, adopted by Congress, addresses these concerns through a model of client empowerment. The article then explains two recent trends: the use of lead counsel groups, in which courts appoint multiple investors and aggregate their holdings, and the use of an auction procedure to select lead counsel and determine counsel fees. The trends deal with facially separate issues, yet they are disturbing for the same reasons. First, both aggregation and lead counsel auctions weaken the relationship between the lead plaintiff and class counsel and specifically reduce the ability of the lead plaintiff to exert control over litigation decisionmaking. Second, both trends lead to serious problems in implementing the lead plaintiff provision. Finally, the trends maintain an active judicial role in supervising the conduct of the litigation. The article challenges the propriety of aggregation and auctions under the PSLRA, arguing that neither development is supported by the statutory text or legislative history. The article further argues that these approaches are inconsistent with and likely to frustrate the objectives of the PSLRA. Courts that appoint groups of unrelated investors as lead plaintiffs will face difficult questions of appropriate group size and composition. Lead plaintiff groups are unlikely to function in accordance with the statutory design; in particular, they are unlikely to select or monitor class counsel effectively. Selection of lead counsel by auction is not an attractive alternative. Lead counsel auctions present substantial issues in design and implementation, and there is little reason to believe that a judicially conducted auction can replicate the market process or result in a selection decision and fee award more appropriate than the decisions made by a suitable lead plaintiff. Finally, the article argues that both developments are based on the mistaken perception that class action abuses can be addressed through judicial oversight. In adopting the lead plaintiff provision, however, Congress expressly rejected this premise. The effect of both aggregation and lead counsel auctions is to maintain judicial empowerment at the expense of client control. This approach undermines the potential for client empowerment to achieve meaningful litigation reform.

What price mice?

BECAUSE THEY ARE DEDICATED TO THE ELIMINATION OF the use of all animals in medical experiments regardless of the human cost, animal protectionist groups have moved vigorously to seek the assistance of the federal courts. Inspired by their taste of success in other areas, these groups are now attempting to make the use of mice, rats, and birds in biomedical research prohibitively expensive and extremely burdensome. This raises the distinct possibility that such research is in danger of experiencing the strangulation by red tape that is threatening medical research in the United Kingdom. The latest effort by animal protectionist groups is remarkably shrewd. In 1998 a recently established group calling itself the Alternatives Research and Development Foundation (ARDF), functioning under the umbrella of the American Anti-Vivisectionist Society, filed a petition for rulemaking with the US Department of Agriculture (USDA) asking that the USDA cancel the longtime exemption of mice, rats, and birds from its animal care regulations. The USDA published the petition in the Federal Register asking for public comment, but also presented a lengthy discussion of the USDA’s own serious objections to the demands of the petitioners. Rather than await the USDA’s decision on its petition, the ARDF moved to force the issue by filing suit in federal court claiming that the secretary of agriculture had arbitrarily and capriciously excluded mice, rats, and birds from the definition of “animal” in the Animal Welfare Act. Joining the ARDF as plaintiffs were a company describing itself as a manufacturer of laboratory tests to replace animal testing and a Beaver College student who claimed she had standing to sue because she had suffered an “aesthetic injury” from observing laboratory rats who had allegedly received “inadequate housing, water, food, and veterinary care.” The separate attempts in August and September 2000 by the National Association for Biomedical Research (NABR) and Johns Hopkins University to become parties to the litigation were thwarted when, in a sudden reversal of position, the USDA joined with the plaintiffs to obtain stays of the court proceedings while they engaged in private settlement negotiations. This meant that the court would not rule on the intervention motions of the NABR and Johns Hopkins, and that the settlement negotiations could proceed behind closed doors with no representative of research institutions present. Other government agencies with important interests in the use of rodents in medical research were not consulted by the USDA or admitted to the settlement negotiations. These included the National Institutes of Health, which has allocated billions of taxpayer dollars for biomedical research; the Food and Drug Administration, which has an interest in the use of rodents in toxicity testing of new pharmaceuticals; the Centers for Disease Control and Prevention, which uses rodents and birds in epidemiological investigations; and the US Department of Defense, which must use rodents in tests to combat bioterrorism and biowarfare. The settlement negotiations culminated with a complete capitulation of the USDA to the demands of the plaintiffs. The worst fears of researchers were realized when the USDA agreed to grant the plaintiffs’ petition for rulemaking to amend the USDA regulation excluding birds, rats, and mice from coverage under the Animal Welfare Act. The filing by the parties on September 28, 2000, of a voluntary stipulation of dismissal without prejudice ended the litigation for now, and the government agreed to pay the plaintiffs $18000 in attorney fees. Not unexpectedly, research scientists are asking, “What goes on here?” Fortunately, not all is lost. The USDA chose to ignore the many entreaties expressed by biomedical organizations, university presidents, and scientists not to engage in an outof-court settlement. Congress, however, did react to the disastrous settlement by adding language to the fiscal year 2001 Agricultural Appropriations bill prohibiting the USDA from spending any part of its appropriations to change the regulatory definition of “animal” in the regulations promulgated under the Animal Welfare Act. President Clinton signed the bill into law on October 28, 2000. Since the legislative “fix” was inserted into an appropriations bill, it is in effect for only 1 year. The research community now must engage in a concerted effort to obtain a permanent solution from

Nonphysical Personal Injury Settlements and Judgments: Amending the Internal Revenue Code to Exclude Attorney Fees

Nonphysical Personal Injury Settlements and Judgments: Amending the Internal Revenue Code to Exclude Attorney Fees

Effects of attorney fee shifting laws on claiming behavior

Effects of attorney fee shifting laws on claiming behavior

Loser-Pays: Or Whose "Fault" Is It Anyway: A Response to Hensler-Rowe's "Beyond 'It Just Ain't Worth It'"

MARC I. GROSS [*] I INTRODUCTION While acknowledging the benefits of class actions, Professors Hensler and Rowe propose a fundamental change that would sound their death knell. [1] The authors urge consideration of a loser-pays provision modified from the English rule in two fundamental ways. First, a loser-pays rule would apply only to certified class actions. [2] Second, while defendants would be personally liable for any attorney fees and costs if they lost the litigation, only plaintiffs' counsel would be liable if plaintiffs lost. [3] In effect, the would eliminate consideration of whether a claim was brought in good faith, imposing instead a no-fault rule on unsuccessful counsel. The Hensler-Rowe proposal is unwise for many reasons. First, it is premised on an assumption that or nuisance class actions are widespread. The authors, however, cite no empirical support for this assumption. They rely only on anecdotal evidence provided mostly by corporate counsel. [4] In addition, the Hensler-Rowe proposal incorrectly projects that a loser-pays rule would only modestly increase costs for prosecution of any class action. [5] The authors ignore the substantial costs that counsel for both sides already must incur to prepare any complex case for trial and the adverse impact that doubling those costs would have on counsel's decision to pursue a claim. The authors also presume a high degree of prescience on the part of plaintiffs' counsel, particularly regarding uncertain areas of the law. Federal circuit courts often disagree on applicable legal standards, and along with the United States Supreme Court often issue split decisions, yet the Hensler-Rowe proposal would automatically penalize counsel even if several members of a court may have agreed with their position. Similarly, the Hensler-Rowe proposal ignores the uncertain nature of litigation, where jury verdicts for plaintiffs may be reversed on motions for judgment notwithstanding the verdict and appeals. The automatic costs-follow-the-event-rule [6] proposed by Professors Hensler and Rowe fails to account for unsuccessful cases with significant merit. In fact, if the Hensler-Rowe proposal were adopted, a substantial number of potentially meritorious claims would not be pursued at all. Moreover, attorneys who file class actions would face enormous pressure to settle prematurely rather than risk aut omatic sanctions, effectively placing counsel in conflict with the class they represent. Hensler and Rowe discuss at length alternative solutions to the perceived problem of abusive class action suits. [7] The alternatives, which involve greater judicial scrutiny of settlements and fee awards, are well-considered and warrant further consideration. Another potential solution not addressed by Hensler and Rowe is mandatory consideration of Rule 11 sanctions at the conclusion of any class action, a remedy Congress imposed on securities fraud cases in the Private Securities Litigation Reform Act of 1995 (PSLRA). [8] As discussed below, Congress, when considering the PSLRA, wrestled with the same issues considered by the authors, and reached a far less draconian resolution. Rather than radically change the landscape of class action litigation, as suggested by Hensler and Rowe, the courts should instead apply heightened standards of scrutiny for settlements and fee awards. [9] II DISCOURAGING MERITORIOUS CASES The fundamental problem with a loser-pays proposal is that it would chill counsel from pursuing cases involving potentially legitimate claims where success is uncertain. For example, the facts of a case may satisfy the legal standard of one jurisdiction, though not a second jurisdiction; in a third jurisdiction, the standard may be undecided. The Hensler-Rowe proposal also presumes that counsel can gauge accurately the strength or weakness of a claim at an early stage of the litigation without access to all of the discoverable facts. …

How the Income Tax Undermines Civil Rights Law

Federal statutes entitle prevailing plaintiff in civil rights litigation to recover attorney's fees from defendant. The recovery of attorney's fees under these so-called constitutes a deliberate departure from usual American rule that each litigant must bear her own legal costs. A civil rights plaintiff acts not just for herself alone but also as a attorney general, vindicating national policy. The fee-shifting provisions enable plaintiff who cannot pay a private attorney, and whose potential recovery is not sufficient for a contingency fee arrangement, to perform this private attorney general function. This objective has been undermined by recent tax decisions concerning taxation of employment discrimination plaintiffs. Under these decisions, a civil rights plaintiff must report her entire recovery as income. However, attorney's fees the cost of producing income are not fully deductible under regular tax and are not deductible at all under alternative minimum tax. As a result, plaintiff's is overstated and overtaxed. The tax law should permit a civil rights plaintiff either to deduct fully or to exclude recovery of attorney's fees. A full deduction or exclusion would provide a more accurate measure of plaintiff's and also preserve purpose of fee-shifting provisions.

Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation

The law of attorneys' fees is the subject of dozens of law review articles; both academic and popular literature evidence a shared sense that "something" needs to be done. This article explores why figuring out what to do is so difficult. Attorney fee allocations -- specifically in mass torts, in which individual cases are often aggregated but also when poor litigants seek court-assisted access to courts -- results in judicial intervention into the market for legal services. Judicial allocation of lawyers' fees turns judges into the purchasers of services. Hence, both aggregate processing and efforts to settle such aggregates pose new challenges for judges, now required (in light of recent Supreme Court decisions in two class action asbestos litigations) to ensure that adequate representation is provided to diverse sets of litigants within aggregates as a predicate to closure for such litigations. This essay reviews alternative conceptions of the civil justice system, including the tensions between state subsidies as contrasted with unaided access to courts, laissez-faire lawyering as contrasted with regulated advocacy, as well as the difficulties of achieving inter-litigant equity -- hence increasing the appeal of aggregate processing. Based on the transformations of the last three decades, this essay suggests the directions that attorney-fee law needs to take to implement judicial obligations to ensure the adequacy of process in aggregate cases and the challenges that such obligations pose for judges.

Ethics Matters, too: The Significance of Professional Regulation of Attorney Fees and Costs in Mass Tort Litigation. A Response to Judith Resnik

Ethics Matters, too: The Significance of Professional Regulation of Attorney Fees and Costs in Mass Tort Litigation. A Response to Judith Resnik

Found Money? Split-Award Statutes and Settlement of Punitive Damages Cases

We examine the effect of the tort reform (wherein the State takes a share of a punitive damages award) on equilibrium settlements and the incentives to go to trial. Using both signaling and screening models of settlement negotiations, we find that the equilibrium settlement is increasing in the likelihood of the defendant being found liable, in the size of both the compensatory and punitive damages, and in the share of the punitive damages award that the plaintiff may keep. We also find that increases in the same attributes (except for the compensatory damages award) increase the likelihood of a case proceeding to trial. Thus, split-award statutes simultaneously lower settlement amounts and the likelihood of trial, as both parties act to cut out the State (since the statutes only apply to awards at trial). We then develop an analysis of the revenue that split-award statutes could generate, conditioned on the allocation of a punitive damages award between the plaintiff, his lawyer and the State. We construct a symmetric random proposer model (a composite of the signaling and screening models) and find the revenue-maximizing share for each state currently using a split-award statute with a mandated rate. We find that (for all states but one) the predicted state's share is approximately 50% (for the remaining state, the revenue-maximizing share should be approximately 66%). These results are robust to variations in economic parameters and to whether the state's share is gross or net of the plaintiff's attorney's fee. One surprising result is that these statutes do not deter filings and that their use can actually encourage plaintiffs' attorneys to accept and pursue weaker cases than would have been brought absent the statute. Finally, we use our results (along with information about the evidentiary standard employed, the allocation scheme used and the presence or absence of caps imposed on damages awards) to infer the likely motivation for passing a split-award statute for six states of interest. We find that policies in Indiana and Oregon are more consistent with a primary motivation of deterrence reduction while policies in Georgia, Iowa, Utah and Missouri seem to be more consistent with a primary motivation of revenue generation.

Qui tam claims: threat to voluntary compliance programs in health care organizations.

The Department of Justice (DOJ) reports that after violent crime, health care fraud is the department's top priority. The number of health care fraud investigations pending at the DOJ increased from 270 cases in 1992 to more than 4,000 in 1997. The DOJ's primary weapon in prosecuting health care fraud is the federal False Claims Act (FCA) of 1863 (31 U.S.C. secs. 3729-3733). Almost unique among federal antifraud provisions, the FCA may also be used by "private prosecutors" to file lawsuits on behalf of the federal government charging organizations with submitting false claims to the government. The FCA rewards such whistle-blowers with a share of any resulting recoveries as a bounty and protects them from discharge for filing false claims lawsuits against their employers. It also requires defendants to pay the costs and attorneys fees of successful claimants. Although the private "bounty hunter" features of the FCA data back to the Civil War, these so-called qui tam claims were nearly dormant until 1986, when Congress amended the FCA to revive their use. Following the 1986 amendments, and paralleling the rapid increase in federal reimbursements for health care costs, private qui tam claims have far expanded beyond their traditional purview of defense contracts into the field of health care. By 1997, health care providers were the targets of 54 percent of the 530 private qui tam lawsuits field that year.

Lawyers Seeking Clients, Clients Seeking Lawyers: Sources of Contingency Fee Cases And Their Implications for Case Handling

Where do the clients of contingency fee lawyers come from, and what are the implications of client sources for contingency fee practice? Those are the questions this paper considers, drawing upon multiple sources of data. The analysis shows that relatively few clients come to lawyers’ offices in response to advertising. Rather, it is the more traditional route of reputationally based referrals that bring in the vast majority of contingency fee clients. The importance of maintaining a reputation that will draw in future clients tends to curb the potential for abuses created by the inherent conflict of interest between lawyer and client that the contingency fee creates.

Contingent fees and litigation settlement

Policy makers and static economic models often argue that contingent fees cause lawyers to settle cases sooner than their clients would like, so as to avoid accumulating costs of bargaining. Yet, in a dynamic setting, a willingness to sink costs can be a strategic advantage when seeking to establish the credibility of threats. This paper shows that this can be the case for cost-bearing contingent fee lawyers who, through such “hard bargaining,” may increase the settlement offers they receive from defendants. However, two opposing tendencies are identified, which leave the overall effects on settlement timing ambiguous and plaintiffs often failing to benefit from this strategy.

Shareholder Derivative Litigation and Corporate Governance

In approving settlements of derivative actions that include fees for plaintiff's attorney, courts typically announce that attorney's fees are approved if a substantial is obtained. In fact, courts, particularly Delaware courts, approve settlements in shareholder derivative actions that included substantial fees for plaintiff's attorney, despite the absence of a corresponding to the corporation. Frequently, the benefit obtained is a reform in corporate governance, which is of dubious value to the corporation. To deter frivolous litigation, courts should resist the temptation to approve these settlements just to dispose of the litigation. The paper concludes that fees should not be approved unless the settlement (a) generates a common fund out of which such fees may be paid, (b) produces an intangible reasonably susceptible of valuation, or (c) reflects a strong nexus between the relief sought in the complaint and the relief obtained.

Emerging trends in correctional civil liability cases: a content analysis of federal court decisions of title 42 united states code section 1983: 1970–1994Publications received

This research analyzes the decisions of correctional civil liability cases litigated under Section 1983 for the years 1970 through 1994. The analysis provides an examination of 3,205 published United States federal court correctional liability cases brought against correctional personnel in penal and local jail facilities. Longitudinal trends, patterns, prevailing parties, common types of lawsuits filed, and damages and attorney fees awarded are discussed based on the content analysis classification scheme. The analysis revealed sixteen major correctional topic areas where prisoner litigation is likely. High liability issues in corrections are addressed and recommendations are presented.

Awarding Attorney's Fees to Pro Se Litigants under Rule 11

Awarding Attorney's Fees to Pro Se Litigants under Rule 11

Chapter 11: Awarding Attorney Fees, Costs, and Expenses

SummaryCourts can send a strong message condemning forum shopping and parental kidnapping by awarding attorneys' fees, court costs, and travel and other expenses, to prevailing parties in interstate custody, visitation, and enforcement cases. This chapter outlines the statutory authority in the UCCJA and PKPA for making such awards.Analogous provisions are contained in the Hague Convention and ICARA. These are discussed in Chapter 10.

Suing Karadžić

On 17 June 1996, the United States Supreme Court denied a petition for certiorari submitted by counsel for Radovan Karadžić, the infamous Bosnian-Serb leader indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) for various international crimes. Thus, the Court let the decision of the US Court of Appeals for the Second Circuit in the companion cases of Kadić v. Karadžić and Doe I and Doe II v. Karadžić, stand. The latter was a set of cases brought by Croat and Muslim citizens of Bosnia-Herzegovina in the US courts against Radovan Karadžić after he was duly served process while in New York. The cases will now proceed, however slowly, with a trial on the merits, addressing the plaintiffs' claims concerning Karadžić's responsibility for acts of genocide; war crimes; torture; summary execution; related crimes against humanity; acts of rape; forced prostitution; forced impregnation; other cruel, inhumane, and degrading treatment; assault and battery; sexual and ethnic inequality; and wrongful death. As remedies, the plaintiffs seek compensatory and punitive damages, attorney fees and, in one instance, injunctive relief.

A Solution to Post Crash Debt Entanglements in Kuwait's al-Manakh Stock Market

Kuwait's al-Manakh stock market crash in August 1982, which resulted in an outstanding debt of US $94 billion, subjected banks to high risks and precipitated an economic recession, business failures, and bankruptcies. Courts could not settle traders' debts one at a time because of their entanglement. We constructed linear programming models to identify insolvent traders, to determine the fraction of debt insolvent traders could pay their creditors, and to apportion an insolvent trader's payment to his creditors by asset type. The models provided the basis for the final court decisions in resolving the crisis. They proved to be effective, equitable, and robust. Without this work, courts would have been occupied for years with the criminal, commercial, and bankruptcy cases resulting from 29,000 postdated checks; it avoided more than $10 billion in court costs and attorney fees.