Another option might have a greater chance to withstand constitutional challenge. At least four states explicitly allow a court to authorize fees in a greater amount than the fee cap allows in unusual or extraordinary circumstances (Illinois, Maine, New York, and Wisconsin). Such an approach might tend to eliminate the possibility that a person with a meritorious claim would be unable to retain an experienced attorney because of the amount of expenses required for expert witnesses and the amount of time and risk involved.

A third option is to eliminate the fee schedule but allow a court to approve the reasonableness of the attorney’s fees. At least six states have adopted this approach (Hawaii, Iowa, Maryland, Nebraska, New Hampshire, and Washington). In each of these states other than Iowa, the court may or must approve the fees of both the plaintiff and the defendant.