Choosing the Insidious Path: West Virginia University Hospitals, Inc. v. Casey and the Importance of Experts in Civil Rights Litigation


At issue here is much more than the simple question of how much [plaintiff’s] attorneys should receive as attorney fees. At issue is… continued full and vigorous commitment to this Nation’s lofty, but as yet unfulfilled, agenda to make the promises of this land available to all citizens, without regard to race or sex or other impermissible characteristic. There are at least two ways to undermine this commitment. The first is open and direct: a repeal of this Nation’s anti-discrimination laws. The second is more indirect and, for this reason, somewhat insidious: to deny victims of discrimination a means for redress by creating an economic market in which attorneys cannot afford to represent them and take their cases to court.

The United States Supreme Court recently held in West Virginia University Hospitals v. Casey that neither the testimonial nor the nontestimonial expenses of experts may be shifted to the losing party pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976. Though not heralded by the widespread critical publicity that greeted the Court’s 1989 restrictive civil rights rulings, West Virginia University Hospitals significantly blocks access to the courts to those without sufficient economic resources to finance litigation necessary to vindicate their civil rights. By holding that expert expenses are neither part of the attorney’s fee pursuant to 42 U.S.C. § 1988, nor included in costs pursuant to 28 U.S.C. § 1920, the Court has substantially limited the litigation of those civil rights claims which require the hiring of experts to serve as consultants or witnesses.

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Panel I: Defund Means Defund Andrea Ritchie (she/her) is a Black lesbian immigrant whose writing, litigation, and advocacy has focused on policing of women and LGBT people of color for the past two decades. She is currently a researcher with