Gregory A. Hicks, Statutory Damage Caps Are an Incomplete Reform: A Proposal for Attorney Fee Shifting in Tort Actions, 49 La. L. Rev. 763 (1989), https://digitalcommons.law.uw.edu/faculty-articles/370
Louisiana Law Review
noneconomic damages, tort reform
The premise of this article is that the currently unsettled status of noneconomic damage awards offers an opportunity to reexamine the function of such awards, and to move tort law in the direction of more stable and rational remedies, something that could not be achieved either under recently adopted damage cap statutes or through the reinstatement of unrestricted compensation of noneconomic losses.
This article has two parts. In the first part, the ambiguous role of noneconomic damages, that is, their function as makeweight compensation for noncompensable litigation expenses and as compensation for real intangible injuries, is described. This ambiguity has clouded the question of whether noneconomic damage awards can be justified in their own right. The first part further shows how the tort reform movement has deflected discussion of the critical role of noneconomic damages as makeweight compensation and, thereby, has produced a debate that concerns primarily the value of the awards as compensation for their ostensible purpose, that is, as compensation for pain and suffering and for other psychic harms. 5 This focus of debate ignores evidence that noneconomic damage awards have flourished because they are needed to pay attorneys' fees, and obscures the question of whether noneconomic damages should be replaced by a remedy that is more routinely responsive to the tort victim's compensable losses. In the second part of the article, the merits and difficulties of adopting a system of attorney fee awards in lieu of continuing the present system of compensation for noneconomic injuries are considered. This part of the article describes in particular the structuring of a fee awards system appropriate for personal injury litigation and the administrative challenges of making such a system workable. The growing body of commentary that concerns the treatment of attorneys' fees as compensable losses in ordinary civil litigation is also examined.