The public interest exception to Alaska’s loser-pays attorneys’ fees rule has been overruled, but, under Rule 82(b)(3)(I), courts may still vary fee awards on a case-by-case basis to avoid deterring future litigants. The result of this transition is that the costs of litigation are highly unpredictable for prospective plaintiffs. While the cases that developed the public interest exception are no longer good law, their logic does offer some guidance for judges wishing to protect court access. Even if courts tend to follow these principles, however, plaintiffs will remain unable to adequately gauge the costs of undertaking a lawsuit until new doctrine is developed that alleviates the uncertainties of the current regime. For plaintiffs bringing particular types of claims, Alaska’s courts may be an insuperably risky destination. Even meritorious claims can become bad investments when the potential costs too significantly outweigh the prospective benefits.
Gordon Sommers, The End of the Public Interest Exception: Preventing the Deterrence of Future Litigants with Rule 82(b)(3)(I), 31 Alaska Law Review 131-159 (2014)
Available at: http://scholarship.law.duke.edu/alr/vol31/iss1/6