IMPACT and Membership: ATLA 2003-04
By Brad Hendricks, previous ATLA President
* Originally published in the ATLA Docket, Winter 2004
Just in case any of our members have not yet heard the news concerning how our enemies intend to further destroy the civil justice system, it is worthwhile to repeat what is public knowledge: TORT REFORM ADVOCATES WILL INTRODUCE LEGISLATION IN THE NEXT LEGISLATIVE SESSION TO LIMIT ATTORNEYS’ FEES, RESTRICT CLASS ACTION LEGISLATION, AND CAP “NON-ECONOMIC” DAMAGES IN CIVIL CASES.
As ludicrous as this may seem to anyone who understands the first thing about our civil justice system, the effort to accomplish it is coming. The information was reported publicly following a gathering of tort reformers in Little Rock which included Rep. Marvin Park, R-Greenbrier, Rep. Danny Ferguson, D-Forrest City, and Sen. Bob Johnson, D-Morrilton. This is the trio which brought us Act 649, the worst bill ever to pass the Arkansas Legislature. Also in attendance in the “panel discussion” were Dr. John Wilson, chairman of the Arkansas Medical Society, Ron Russell, president and CEO of the Arkansas State Chamber of Commerce and Nick Thompson, the lawyer who does the bidding of the tort reformers, and who “hosted” this little gathering.
The wool was pulled over the eyes of our legislators in Arkansas during the last session. They were told that Act 649 would reduce medical malpractice insurance premiums, and cause insurance companies to return to Arkansas, despite the fact that there is no reliable evidence to support that contention. Incidentally, ask your doctor if his or her malpractice premiums have gone down since the passage of Act 649. Try to name an insurance company which has come into Arkansas to write new policies. It has not happened, and it will not happen, at least not as a result of the passage of so called tort reform. The proof is in California, which passed draconian tort reform in an effort to reduce premiums, only to see malpractice rates continue to sky-rocket for eight years until they passed insurance reform. Insurance reform is the only thing which will cause malpractice rates to fall. To their political credit, insurance companies have done a masterful job of side-stepping the wrath of the medical community by directing their anger at attorneys. Meanwhile, their rates continue to rise.
An interesting question is why the chairman of the Arkansas Medical Society would be interested in limiting class action cases. Even more interesting is why any of these individuals would be interested in limiting class action cases, when their stated purpose for “tort reform” was to reduce malpractice premiums and cause insurance companies which write these policies to do more business in Arkansas. Since when did a class action cause have any impact on the issues which they claim motivated their actions in the last legislative session? Since when does the right of an attorney to enter into valid contracts have any impact on insurance rates? It is nothing more than THE BIG LIE, the efficacy of which was proven in Nazi Germany. If the lie is repeated often enough, it is perceived as truth.
The regulation of attorney’s fees by capping contingency fees does not affect only attorneys who handle primarily personal injury cases. It would have a monstrous impact on virtually every general practitioner in Arkansas. These tort reformers want to tell us what we can agree to with our clients in honest, straightforward, arms-length negotiations. Does that not make you angry? Our anger on that point aside, what they really want is to put us out of business. Make no mistake about it.
The “tort reformers” have stated publicly that they want to take tort reform to “the next level.” But that was not what their lobbyists told our legislators in the last session. What was heard from them again and again during the last session was that Act 649 was all that they wanted. Of course, that was false. Our legislators were duped into passing a bill which severely damaged our civil justice system. No other legislature in Arkansas history took action designed to weaken the civil justice system, and it was for very good reasons that no such action was ever taken.
So-called tort “reformers” (it’s galling to have to use that word in relation to what these people are doing), have also fixed their sights on the Judiciary in our beloved Arkansas. They are mortified at the prospect of an independent Judiciary reviewing their handiwork from the last session. They attempted to pass a law allowing for the recall of judges, somewhat similar to the fiasco which we just witnessed in California with respect to their Governor. It is my understanding that there was no effort to allow for the recall of legislators. But if a judge dared to exercise the independence which our system demands, she or he could have endured a messy recall election at best, and potentially could have been removed from office.
We have watched with great interest the actions of the so-called tort reformers in other states. They will attempt to remove judges from office if those judges do not march in lock-step with them. They will pass recall legislation. They will promote constitutional amendments if their bills are clearly unconstitutional. In short, they will stop at nothing.
Obviously, a tort reformer has never represented a burn victim. Dax Cowart, an attorney in East Texas, wrote a book about his experience after he suffered third degree burns over 90% of his body. The pain was so incredibly excruciating during the skin-graft treatment that he begged to be allowed to die. Although he leads a productive life, he continues to advocate for the right to be relieved of such suffering. He still believes that he would have been better served if he could have been allowed to die. The rest of us don’t know what that kind of pain is like. I had the pleasure of having dinner with Dax some years ago, and I wondered if he would ever get used to the stares he had to tolerate wherever he goes. A former football player and All-American boy, his appearance is shocking to the average person. His injuries and resulting disfigurement were caused by a gas line which exploded due to negligence. These so-called “reformers” would have our Legislature “cap” the compensation which a jury could award to Dax Cowart for his suffering. “One size fits all” is not a concept which fits at all in our civil justice system. It is utter nonsense. Yet that is precisely what the enemies of the civil justice system are gearing up to accomplish.
At the gathering described above, Mr. Thompson made reference to us by stating: “We have awakened a sleeping giant.” I dare say that he was correct on that one point. We are actively recruiting and supporting candidates in the same manner that our enemies are doing so. We have formed the “Committee to Protect the Constitution. “We are reaching out to our membership and asking them to be as generous with their contributions as possible. Younger attorneys are getting active in ATLA to an unprecedented degree, and are assuming positions of increased leadership in our organization. We have hired another “heavyweight” in former Senator Allen Gordon, and a full-time Governmental Affairs Director. We are making changes in the requirements for membership in ATLA and are increasing the security of our sensitive communications among one another. Your Executive Committee is working feverishly to respond to the suggestions and demands of the membership.
We have reached the point where the foundation for constructive change has been laid. Now, it is up to all of us. We have to ask ourselves whether we want to contribute heavily to ATLA with our money and with our time, or whether we would prefer to see our right to enter into valid contracts eliminated, caps on compensation for suffering such as that of Dax Cowart and other citizens similarly devastated by negligence, and protections for big business by making it more difficult to bring class action cases when wrong-doers steal a little from a lot of people. We must unite, we must support candidates who really understand the civil justice system, and we must outwork our enemies.
We have a common interest and a common goal, and we have to put aside any differences among us and join hands to beat back the evil which confronts us.
Please, join us in this fight. We need you.