Alaska costs and attorney's fees: a schedule for the winner, 10 days to claim, and an offer of judgment that can flip the case

Alaska is the only American jurisdiction that awards attorney's fees to the prevailing party as a matter of course in every civil case, by a published schedule. That single fact changes how an Alaska case is valued from the day it is filed.

Two other rules complete the picture: Rule 79 caps what counts as a recoverable cost, and Rule 68 lets an offer of judgment shift actual fees at percentages that fall as trial approaches.

Rule 82: the winner is paid

Rule 82(a):

Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule.

Not may — shall. Not only in statutory fee-shifting cases — in every civil case.

Where the prevailing party recovers money — Rule 82(b)(1), the court adheres to a schedule:

Read the columns, not just the rows. Settling or resolving a case without trial cuts the percentage sharply above the first bracket — from 10% to 2% on money above $500,000. The schedule is built to make trying a case expensive for whoever loses it.

Where no money judgment is recovered — Rule 82(b)(2): the prevailing party gets

• 30 percent of its reasonable actual attorney's fees necessarily incurred in a case that goes to trial; and
• 20 percent in a case resolved without trial.

"The actual fees shall include fees for legal work customarily performed by an attorney but which was delegated to and performed by an investigator, paralegal or law clerk."

This is the provision that matters most to a defendant. Win outright, recover nothing, and you are still entitled to a percentage of what you actually spent.

In default cases — Rule 82(b)(4): the plaintiff recovers an award calculated under the (b)(1) schedule or its reasonable actual fees necessarily incurred, whichever is less.

Varying the schedule

Rule 82(b)(3): the court may vary an award calculated under (b)(1) or (b)(2) if, on consideration of the listed factors, it determines a variation is warranted:

(A) the complexity of the litigation; (B) the length of trial; (C) the reasonableness of the attorneys' hourly rates and the number of hours expended; (D) the reasonableness of the number of attorneys used; (E) the attorneys' efforts to minimize fees; (F) the reasonableness of the claims and defenses pursued by each side; (G) vexatious or bad faith conduct; (H) the relationship between the amount of work performed and the significance of the matters at stake; (I) the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts…

Factor (I) is the access-to-justice safety valve, and it is the one to argue if the schedule produces a number that would be crushing.

The 10-day deadlines

Both fees and costs run on the same short clock, and both treat silence as waiver.

Fees — Rule 82(c):

A motion is required for an award of attorney's fees under this rule or pursuant to contract, statute, regulation, or law. The motion must be filed within 10 days after the date shown in the clerk's certificate of distribution on the judgment as defined by Civil Rule 58.1. Failure to move for attorney's fees within 10 days, or such additional time as the court may allow, shall be construed as a waiver of the party's right to recover attorney's fees. A motion for attorney's fees in a default case must specify actual fees.

Costs — Rule 79(b):

To recover costs, the prevailing party must file and serve an itemized and verified cost bill, showing the date costs were incurred, within 10 days after the date shown in the clerk's certificate of distribution on the judgment. Failure … will be construed as a waiver of the party's right to recover costs.

Both run from the clerk's certificate of distribution on the judgment — not from the decision, not from the hearing. And Alaska separates decisions from judgments throughout: Rule 12(b), Rule 12(c) and Rule 56(c) each provide that a decision granting dismissal or summary judgment is not a final judgment and that the appropriate party must file a proposed final judgment within 20 days, on a separate document.

So the sequence after winning a dispositive motion is: decision, then draft and file the judgment within 20 days, then move for fees and file the cost bill within 10 days of the certificate of distribution on it.

Who decides — Rule 82(d): "Attorney's fees upon entry of judgment by default may be determined by the clerk. In all other matters the court shall determine attorney's fees."

And in a default case, Rule 55(h) folds both into the application. A party entitled to default judgment without further hearing under Rule 55(c)(1) must include in the application an itemized statement of costs allowable under Rule 79(f) and the party's actual attorney's fees. "In such case, no cost bill or motion for attorney's fees is required."

Rule 79: the only costs allowed

Rule 79(a): unless the court otherwise directs, the prevailing party "is entitled to recover costs allowable under paragraph (f) that were necessarily incurred in the action." The amount is the figure specified in the rule or, where none is specified, "the cost actually incurred by the party to the extent this cost is reasonable."

Rule 79(f) — "the following items are the only items that will be allowed as costs":

• the filing fee;
• service of process fees allowable under Administrative Rule 11, or postage where process is served by mail, and other process server fees under that rule;
• the cost of publishing notices required by law or the rules;
• premiums on undertakings, bonds, or security stipulations where required by law, ordered by the court, or necessary to secure a right in the action;
• the cost of taking and transcribing a deposition allowed by Rule 30(a) or 31(a) — the court reporter's fee and travel to communities without a local reporter, expenses allowed by Rule 30.1(e) for recording, editing or using an audio or audio-visual deposition, and the original plus one copy of the transcript;
• witness fees under Administrative Rule 7, and interpreter or translator fees for a witness entitled to a fee under that rule;
• travel costs allowed under Rule 79(g);
• long distance telephone charges for telephonic participation at court proceedings, depositions, the Rule 26(f) meeting of the parties, and interviews of non-party witnesses;
• charges paid by the prevailing party's attorney for computerized legal research;
• copying costs, scanning, imaging, coding and creating electronic media files — at the amount charged where copies come from the court or a third party, and at the attorney's charge or $.15 per copy, whichever is less, where they come from the prevailing party's attorney;
• exhibit preparation costs.

Two items are worth noting because most cost rules exclude them. Computerized legal research is recoverable in Alaska. So are long distance telephone charges for remote participation — including at the Rule 26(f) meeting.

Documentation — Rule 79(b): the prevailing party "must have receipts, invoices, or other supporting documentation for each item claimed," available to other parties for inspection and copying on request and presented to the clerk on request. It is filed "only if requested by the clerk or in response to an objection."

Objecting to a cost bill

The timetable is compressed, and every step is short:

The clerk taxes costs — Rule 79(d). Promptly on expiration of the objection or reply period, the clerk issues an itemized award. "No cost bill hearing will be held unless requested by the clerk," and any hearing "will be limited to issues identified by the clerk in the notice of hearing."

The clerk's power is limited, and the limit is the point. The clerk may deny costs on three grounds:

(1) the cost is not allowed under paragraph (f); (2) the party failed to provide an adequate description or adequate supporting documentation following a request by the clerk or another party; or (3) the amount claimed by the prevailing party is unreasonable.

The clerk may not deny costs on grounds that the costs were not necessarily incurred in the action. If a party objects on this basis, the party must seek review under paragraph (e) of the clerk's action in awarding the cost.

So "not necessarily incurred" is a judge question, not a clerk question. Raise it in the objection if you like, but plan on the Rule 79(e) motion — filed within five days of the certificate of distribution on the award, and it "must particularly designate each ruling of the clerk to which objection is made. Matters not so designated will not be considered by the court."

And the burden shifts on review: "Costs awarded by the clerk are presumed to be reasonable."

Rule 68: the offer of judgment

Rule 68 is where Alaska's fee regime becomes a strategic instrument. The current version applies to cases filed on or after August 7, 1997; the rule page also carries the earlier version.

Making the offer — Rule 68(a): at any time more than 10 days before trial begins, either the claiming or the defending party may serve an offer to allow judgment in complete satisfaction of the claim, with costs then accrued.

The offer may not be revoked in the 10 day period following service of the offer. If within 10 days after service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service, and the clerk shall enter judgment. An offer not accepted within 10 days is considered withdrawn and evidence of the offer is not admissible except in a proceeding to determine costs. The fact that an offer is made but not accepted does not preclude a subsequent offer.

The consequence — Rule 68(b). If the judgment finally rendered is at least 5 percent less favorable to the offeree than the offer — or, with multiple defendants, at least 10 percent less favorable — then the offeree, whether claimant or defendant, shall pay all costs allowed under the Civil Rules and reasonable actual attorney's fees incurred by the offeror from the date of the offer, at a percentage that depends on when the offer was made:

The design is explicit: the earlier the offer, the more it is worth. An offer made in the first two months after initial disclosures carries two and a half times the fee consequence of one made in the last three months.

And it interacts with Rule 82 — Rule 68(c): an offeror entitled to costs and actual fees under (b) "shall be considered the prevailing party for purposes of an award of attorney's fees under Civil Rule 82." Notwithstanding (b), if the Rule 82 figure is greater than the Rule 68 percentage, the offeree pays the Rule 82 amount instead.

So Rule 68 sets a floor, not a ceiling: you get the better of the two calculations.

Bifurcated cases — Rule 68(c) of the earlier text, carried forward: where liability has been determined but the amount remains for further proceedings, the party adjudged liable may make an offer with the same effect, if served within a reasonable time not less than 10 days before the hearings on amount begin.

What all this means before you file

Value the fee exposure at the outset. The Rule 82 schedule lets you estimate it, and the 30/20 percent rule tells a defendant what a clean win is worth.

Make the offer early. The Rule 68 percentages reward it directly, and an early offer that beats the judgment by 5 percent shifts three quarters of actual fees.

Settlement resolves the fee claim; a judgment creates one. That asymmetry is larger in Alaska than anywhere else.

And calendar the 10 days. A party who wins the case and forgets the fee motion has waived the benefit of the whole regime.

How Alaska compares

A short checklist

1. Estimate the Rule 82 exposure before you answer. It is part of the value of the case.
2. Make a Rule 68 offer early — the fee percentage falls from 75% to 50% to 30% as trial approaches.
3. Remember the 5% and 10% margins. The judgment must be at least that much less favorable to the offeree before the shift bites.
4. After a dispositive decision, draft the judgment within 20 days. Nothing final happens until it is filed, and the fee and cost clocks run from the certificate of distribution on it.
5. File the fee motion within 10 days, and the itemized, verified cost bill within 10 days. Both are waived otherwise.
6. Keep receipts as you go. Rule 79(b) requires documentation for every item, produced on request.
7. Claim only Rule 79(f) items. The list is exhaustive — but it does include legal research charges and long distance telephone charges for remote participation.
8. If you object that a cost was not necessarily incurred, plan on the Rule 79(e) motion — the clerk cannot decide that question, you have five days, and you must designate each ruling you challenge.
9. In a default case, put costs and actual fees in the application itself. Rule 55(h) then dispenses with a separate cost bill and fee motion.

Where these rules live

• Alaska R. Civ. P. 26 — General provisions governing discovery; duty of disclosure
• Alaska R. Civ. P. 55 — Default
• Alaska R. Civ. P. 56 — Summary judgment
• Alaska R. Civ. P. 58 — Entry of judgment
• Alaska R. Civ. P. 68 — Offer of judgment
• Alaska R. Civ. P. 79 — Costs; taxation and review
• Alaska R. Civ. P. 82 — Attorney's fees

The Administrative Rules that set witness fees, process server fees and travel allowances are outside what this site reproduces. This page explains what the rules say. It isn't legal advice.