By Brad Hendricks, Previous ATLA President
* Originally published in the ATLA Docket, Summer 2004
As everyone probably knows by now, the Arkansas Trial Lawyers Association recently joined with the Arkansas AFL-CIO and other plaintiffs in the filing of a constitutional challenge to Act 649. The reaction of Ron Russell, Head-dog at the Arkansas Chamber of Commerce, was to refer to the effort as being motivated by “greedy trial lawyers.” His statement was not true, as Chip Welch pointed out much more diplomatically than many of us could have managed. More importantly, Mr. Russell did what all tort deformers do, which is to avoid the real issues.
Tort deformers have lied to the people of Arkansas by telling them that tort deform will bring down malpractice rates. There is no valid empirical evidence to support that claim. They have lied to our elected representatives by making this same claim. They also lied to our elected representatives when they lobbied so intensively for Act 649 by claiming that this was all the tort deform that they wanted. We know for a fact that either those statements were lies, or the published reports of their stated agenda for additional tort deform were lies. Either way, the conclusion is inescapable.
Why do they lie? They are driven by the very greed which they attribute to trial lawyers via their tired, worn out “greedy lawyer” mantra. They can’t win in the arena of the truthful exchange of ideas, so they resort to the use of dirty slogans. The time is long overdue to call them out on their lies and dirty tactics.
Let’s speak the truth. Attorneys are motivated in part by self-interest, just as Mr. Russell and all human beings are motivated in part by self-interest. But that is not what drives attorneys. What drives us is our commitment to the oath we took to protect and defend the constitution. We are motivated by the clients we talk with everyday who are harmed by this vicious, special interest legislation. We are motivated by the fact that it was attorneys who stopped the robber barons of the past, and it will be attorneys who stop the unholy alliance between big business, the medical industry and the insurance industry.
The only thing which stands in the way of the most powerful corporations is the American jury. That’s what our founding fathers envisioned, and that’s what our opponents will never stop trying to eliminate. The American jury is the check and balance which restrains the most powerful, and they abhor anything which diminishes their power. The real issue is not about trial lawyers. The real issue is the fundamental role of accountability which is vested in the American jury, and since our opponents can’t address that issue honestly, they resort to their dirty slogans.
Let’s be truthful about what will really bring down malpractice rates for our friends in the medical profession. It is well documented that tort deform will not do so. Trial lawyers know what will bring down rates, and insurance executives also know what will bring down those rates. Insurance companies fear that the medical profession will one day realize that trial lawyers are their friends on this issue. That fear is an offshoot of a fear of the truth, and the truth is that the only thing which will bring down malpractice rates is insurance reform. Meaningful insurance reform is precisely what the medical profession needs, and it is precisely what the insurance industry does not want them to have.
To avoid an alliance between the medical and legal professions which would be necessary to effectuate meaningful insurance reform, the insurance industry has done a masterful job of deflecting the anger of the medical profession away from the insurance industry and toward us. As strategists, one can only salute the insurance industry for one of the most brilliant political strategies ever conceived. Let’s be candid. Doctors don’t like being confronted about possible negligence any more than we do, and some lawyers have not handled allegations of medical negligence as professionally as they should have.
Consequently, the stage was set for the insurance companies and big business to persuade physicians to join them in squaring off against trial lawyers and in undermining the historical role of the American jury in our society.
It is probably too late to reverse the unfortunate political alliance between the medical and insurance industries. Anti-lawyer rhetoric is now openly used in medical schools. Doctors are publicly questioning whether they should refuse to treat trial lawyers, despite their oath. Anti-lawyer rhetoric is now found in the offices of doctors by patients who come in for medical care, not politics. Among doctors, hatred of attorneys has become institutionalized, and that is a truly sad state of affairs. The natural human reaction is to respond in kind and go after them with an equal or greater vengeance. But that creates a vicious cycle and solves nothing. The truth is that we are not the enemy of the medical profession, and we need to be guided by that truth. Their enemy is the insurance industry which sets their malpractice rates, which controls their compensation for services rendered, and which reaps profits beyond imagination in the process. Shall we discuss greed? Bet on it. But we’ll do it with facts, not slogans.
It is also true that we need to do a better job of keeping our own house clean. It would seem that the marketplace would eliminate so-called “frivolous lawsuits”, as any attorney is headed for bankruptcy by filing such pleadings. But evidently some attorneys have to learn that lesson the hard way, and innocent doctors and nurses are victimized when that happens. We need to work together on this within our own profession, as the tools to sanction a lawyer who files a truly frivolous lawsuit are present in the rules of civil procedure. Legislation is not needed, and it is not appropriate. Legislation in this area encroaches upon the constitutional authority of the Arkansas Supreme Court. The problem from a political or legislative standpoint is that the word “frivolous” is tossed about carelessly, and clouds the real issues which should be addressed. This is a matter for judges to control.
Our friends in the medical profession do not shrink from complex or difficult problems, nor do we. Hopefully at some point a dialogue based on the truthful exchange of ideas will develop between our respective professions, and hopefully the result will be a higher level of understanding and respect for one another, and for our respective contributions to society. When the medical profession is ready to take on their real problem, and surveys the political landscape for allies, we will be among the few that they find.
Since this article is a search for truth, it’s worthwhile to address the image of attorneys. The image which our political enemies so eagerly portray is false. Let’s speak truthfully about what we really do besides work for the injured victims of negligence, the defrauded small businessman, the disabled Social Security claimant or the victim of racial discrimination, among many other types of cases where the average Arkansan faces off against the power of government, insurance companies or huge corporations. We provide free legal services to the poor who cannot afford to pay. Every lawyer has a duty and responsibility to do so, and every lawyer is required to meet that duty in one form or another. In response to the tragedy of 9-11, The Association of Trial Lawyers of America launched the largest pro bono effort in history to assist the victims of that horrific event. When our troops were sent to Iraq, the Arkansas Trial Lawyers Association launched “Operation Safekeeping”, through which we provide free legal services to the families of servicemen and women overseas. Plaintiffs’ firms and defense firms alike are donating countless hours of time to assist the poor through Habitat for Humanity and similar programs. Attorneys spend many hours each week giving free legal advice when they could be working on matters which produce income. “Greedy lawyers?” That’s a lie, and we need to expose it for what it is, and expose the people who say it for what they are.
The task before us is not easy. Through repetition, the use of vicious, vitriolic language by our opponents has found receptive audiences. Enemies of the American jury are gleefully planning their future assaults. They want nothing less than the elimination of the jury as the constitutional safeguard of accountability. They will stop at nothing to accomplish that goal. Only brave and thoughtful legislators can stop them at the Capitol, and only trial lawyers can stop them in the courts. The truth is, that’s why we joined with other plaintiffs to file the constitutional challenge to Act 649, and that’s why we will continue this fight on every front until the fundamental and historical function of the American jury has been fully restored. Our Arkansas Supreme Court required us to take an oath in order to give us the privilege to practice law, and that oath requires this unwavering commitment.