It would appear that a constitutional challenge would have less of a chance to succeed if the law allowed a court to approve fees beyond the cap especially for (1) cases that are economically impractical for attorneys to undertake because they involve extraordinary costs, time, and risk, and (2) situations where the cap on fees might prevent the inured person from being able to retain an experienced counsel or being able to retain any attorney at all.

Instead of a specific limit or a sliding scale, six states require or authorize court approval of the reasonableness of attorney fees under various circumstances (Hawaii, Iowa, Maryland, Nebraska, New

Hampshire, and Washington). In all of these states, other than Iowa, it appears that the court may determine the reasonableness of both the plaintiff’s and defendant’s attorney’s fees.