Ryan Castle
Municipality of Anchorage - Civil Legal Division
Anchorage, AK
Ryan is interning with the Municipality of Anchorage in its Civil Legal Division. Like most government entities, the Municipality represents taxpayers. It often finds itself on the defense side of the courtroom against those claiming to be harmed by the Municipality and its employees. It serves around 350,000 people; half of the State of Alaska. While Ryan’s passion lies on the plaintiff’s side, to pursue social justice he hopes to understand the perspective and decision making process of government agency defendants through this internship.
July 3, 2012
The first month of my internship has shown me the struggles the Municipality confronts when trying to compensate legitimate claims while protecting taxpayer interests. This balance was most recently and intimately seen as a result of the actions of Anchorage Police Officer Anthony Rollins. In early 2011, Rollins was convicted of sexually assaulting five women while they were in his custody in 2005-09, among other charges, and will spend the next 87 years in prison. Several more women had come forward before, during, and since the trial. These assaults were horrific and egregious, especially given his position of authority.
Currently, the civil suits against the Anchorage Police Department and the Municipality are under way. Each suit is expected to end in mediation, and I was able to sit in on the Municipality’s mediation planning.
Around the conference table, Municipality attorneys, insurance representatives, the city manager, and police officials discussed each victim’s case. But each member was clear to point out that the goal was to provide fair compensation to each victim. This was less a zealous fight than a desire to achieve a reasonable settlement range. Ultimately, the Municipality and the Police Department are learning from Rollins's actions. For example, the Police Department is changing its surveillance procedures at its substations (where many of the assaults took place), and its internal accountability mechanisms.
I am learning that many Alaskans have a fierce independent spirit and distrust of authority. Because of this, a government agency defendant, especially in Alaska, must take into account larger social justice implications to a greater extent than private defendants. Interning with the Municipality has shown me that social justice can be achieved from many angles, and even defendants can and should factor in social justice implications in their litigation strategy.
July 30, 2012
Attorneys’ fee-shifting, followed by the British legal system, is one method to detour court access, necessarily implicating social justice concerns. In America, Alaska is the only state with blanket fee-shifting provisions: Alaska Rules of Civil Procedure 82 and 68. Rule 82, in brief, requires that judges award a percentage, typically between 10% and 30%, of the prevailing party’s attorney’s fees in the damages calculation. Rule 68, in brief, will reverse this fee shift if one party makes a reasonable settlement offer, the other party declines, and the final judgment is less than the offer. The goals of these rules are to encourage settlement, make the prevailing party more whole, and reduce low-merit claims. But, as learned during my internship in the civil legal department of the Municipality of Anchorage, Alaska’s rules may actually increase low-merit personal injury claims, and thus tort reform proponents should look elsewhere for a model fee-shifting regime.
Tort reform aims to improve an increasingly inefficient court system through reducing frivolous claims. The defendants are typically insurance companies and corporate entities. The supporting legislators are typically “pro-business” and “fiscally conservative.” The plaintiffs are typically personal injury victims. The tort reform toolbox first only contained caps on damages, including on economic, on non-economic, and on punitive damages. It continues to use this tool in personal injury and medical malpractice suits. More recently, it has learned to diversify, adding heightened pleading standards, maximum contacts corporate jurisdiction, and, its hacksaw, financing judicial elections. Tort reform has used these tools effectively to build a fortress around the court system.
But the effects of Rules 68 and 82 on corporate defendants are harmful in one regard and inconsequential in another. First, Rule 68 encourages a quick settlement by reversing the Rule 82 fee shift. The Rule 68 offer will typically be made by a defendant, and the sooner the better so that the reversed fee-shifting starts calculating attorneys’ fees early. This typically results in a quick, good faith (by law) settlement offer for even low-merit claims. The effort to further contest the claim and the possibility of any favorable outcome for the plaintiff are enough to heighten a risk assessment toward paying out claims that a corporate defendant might normally risk to summary judgment. Second, any form of fee-shifting that Rules 68 and 82 permit is inconsequential to a corporate defendant facing an assetless plaintiff. Most personal injury plaintiffs, by the time they file their claim and the suit is underway, have already spent the assets they had, or their insurance company has denied coverage or capped that coverage. No matter the outcome, within the personal injury context, only corporate defendants will pay out attorneys’ fees under Rules 68 and 82. The rules do not make the prevailing defendant more whole; they make him quick to settle.
The rules also incentivize personal injury plaintiffs to settle quickly, but unlike defendants, the rules benefit plaintiffs. First, a quick resolution of a claim is ideal, especially with mounting medical bills. Still, the reward might not cover all damages and are likely to be less than if the claim were pursued further. But the prospect of having a client pay less in his own attorney’s fees and the prospect of the defendant paying 10% of the plaintiff’s fees (Rule 82), can in fact result in no difference or even a favorable net monetary gain for the injured client compared to having no fee-shifting regime in place. Second, in effect, the rules shift fees only in favor of personal injury, assetless plaintiffs. The risk to bring a personal injury suit is low, as long as the client understands that accepting an early settlement offer is in his best interest.
Ironically, when suing corporate defendants, the stated goals of Rules 68 and 82 are only realized among plaintiffs, typically those carrying personal injury negligence claims. However, following the arguments above, by encouraging settlement the rules will decrease trials, just not claims. This is another win, albeit small, that proponents of tort reform can taut. But, ultimately, this increased filing could increase a corporation’s legal expenses. From a more realist perspective, increased corporate profit is the aim of tort reform. Thus, Alaska’s unique fee-shifting rules may present a net loss for tort reform.
At times and contrary to popular belief, a quick, low settlement may better promote social justice than a drawn out, public legal battle. This is social justice writ small. These are everyday battles that injured plaintiffs face, not large civil rights standoffs addressing the core of the American legal system. Still, attention to these small battles should shine a larger light upon larger tort reform efforts to prevent equal court access.
