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Are Ordinary People Losing Access to Courts?

U.S. Supreme Court reviews three cases about attorneys’ fees.

Victory outside the courtroom

The case of Bridget Hardt, a 65-year-old woman living in Chesapeake, Va., will focus on a related question when the Supreme Court hears Hardt v. Reliance Standard Life Insurance Co. on April 26. Hardt worked as an executive assistant at Dan River Inc., a textile company, and after Hardt’s surgery for carpal tunnel syndrome, Reliance agreed to pay her disability for two years. During that time, her medical condition worsened, and she was awarded Social Security disability benefits. But at the end of the agreed two years, Reliance terminated her benefits, saying her condition wasn’t serious enough to warrant continued payment.

Hardt went to court, charging that Reliance had violated the Employee Retirement Income Security Act (ERISA), the federal law that governs the administration of most private health and pension plans, when it denied her benefits. A court sent her case back to the insurer, and said that if Reliance didn’t reconsider Hardt’s claim within 30 days, it would rule in her favor.

She was eventually awarded full benefits, but because that decision came from the insurance company rather than from a courtroom, the circuit court ruled that Reliance didn’t have to pay her attorney’s fees. The Supreme Court will consider whether Hardt is entitled to those fees. (AARP has filed a brief in her favor with the court.)

“You wind up using all your savings, all your credit cards, and you wind up in debt,” to fight this case, says Hardt, and even after winning, “you don’t get attorneys fees. I can see why a lot of people wouldn’t even attempt it.”

Hardt’s lawyers argue that ERISA “expressly authorizes an award of fees and costs.” But lawyers for the insurance company point to an earlier Supreme Court ruling that such fees are only awarded to a “prevailing party,” and that Hardt’s disability claim was decided by the insurance company, not the court.

Georgetown professor Wolfman, who has worked with Hardt’s lawyers on her case, is especially troubled by a circuit court ruling that Hardt’s lawyers–even after getting a court order that effectively forced the insurance company to give Hardt her disability benefits—shouldn’t be reimbursed for their work. Knowing that was a possibility, Wolfman says, “what lawyer would take that case?”

Hardt’s main lawyer, Ann Sullivan, agrees: “I’m a member of a firm, and I can’t take cases that don’t have a reasonable prospect of getting paid.”

But Ratliff, pressed on what she would have done if her fees had been at risk throughout her three decades of working on disability cases for poor Native Americans and veterans, hesitates for a moment. “You know what,” she says. “I would probably take them anyway.”

Holly Yeager lives in Washington, D.C.

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