There is wide support for tort reform in the Arkansas legislature. A resolution to amend the state Constitution that would limit lawyer contingency fees, non-economic damages, and punitive damages — and allow the state legislature to write rules that would allow (for instance) loser-pays reforms — is cosponsored by half of the state legislators in Little Rock.
State Rep. Jana Della Rosa isn’t one of them. In fact, she recently appeared on “Talk Business & Politics” to express her opposition to tort reform. She began by explaining that “when people say ‘tort reform,’ nobody knows what it is they are talking about…” Regrettably, this accusation appears tailor-made for application to Jana Della Rosa.
For instance, Della Rosa claimed that capping non-economic damages “takes away the power of the jury.” This is simplistic: Della Rosa doesn’t seem to comprehend that juries, like the rest of us, always have to follow the law — because they lack the power to do whatever they want. Judges instruct juries about how to follow the law before sending them off to deliberate. Is that taking away the power of juries? Maybe so — but it’s because juries must operate within the law. Enacting an amendment that limits jury discretion in determining damages is completely consistent with the web of laws that determine how juries can act.
Della Rosa also brought the U.S. Constitution up, saying, “How many of the first amendments in the Bill of Rights have to do with jury trial? … I don’t think that we should be messing with that.” To answer her question, the Fifth Amendment deals with grand juries, which have nothing to do with tort reform. The Sixth Amendment deals with criminal prosecutions, which have nothing to do with tort reform. The Seventh Amendment deals with civil suits under common law by preserving the right to trial by the jury in cases involving more than $20. Since the proposed amendment protects and preserves the right to trial by jury, I don’t see any connection here. In fact, I don’t see any reason that the Bill of Rights is affected at all.
Perhaps Della Rosa’s most absurd claim is that it is “pro-life” to oppose tort reform. She said, “Non-economic damages is essentially the value of a human life. I am staunchly pro-life and you are never going to find me putting a dollar value on a human life because I just think that’s a slope we should never start traveling down.”
Let’s clarify what “pro-life” means – it means you are opposed to abortion and euthanasia, on the theory that the state should never legalize the taking of human life. Life is given by God, so it is always wrong for humans to end life. Pro-life does not mean that you are opposed to judicial proceedings that put a value on wrongful death. Wrongful death suits, which would be affected by this resolution, involve deliberations on how a surviving family member should be compensated. To follow Della Rosa’s logic, she should be opposed to any wrongful death civil case. After all, the entire point of such a case is to determine “the value of a human life.” In fact, Della Rosa is deeply implicated every day in a system that puts a value on human life, because in her capacity as a state legislator she has helped determine the budgets of the Arkansas judicial system. It would be hard to be more entangled in putting a dollar value on a human life than that.
Whether we like to think about it or not, juries routinely make monetary judgments based on someone’s life in a wrongful death suit. It may sound nice to say on TV that “you are never going to find me putting a dollar value on human life,” but it is totally removed from the reality of how the judicial system works. In order for surviving family members to be compensated for a wrongful death, a jury must decide upon a monetary amount. It is perfectly acceptable for legislators to set limits on how much this amount can be. There is no violation of pro-life ethics in doing so, and it is simply muddying the waters to conflate these two issues. In fact, if you want to go down this road, then the stronger “pro-life” argument is in favor of tort reform. Texas saw the number of doctors in the state double after that state enacted tort reform. Better access to health care is better for preserving life, isn’t it?
Della Rosa also added that it is wrong to tell lawyers how much they can make in contingency fees, just as it is wrong to regulate the salaries of professional basketball players. That is eyebrow-raising, because it suggests that she does not understand how contingency fees work. They aren’t like salaries: lawyers will typically have special, privileged knowledge when it comes to the business deal (which is what a contingency fee arrangement is) that they are trying to get their client to sign. A lawyer who understands the details of the financial circumstances of his client is hardly occupying a place of equal bargaining power. The law recognizes that lawyers are in a special position of trust, and thus there is a place for imposing limits on how the lawyer can use knowledge supplied by clients. For instance, a lawyer typically isn’t allowed to write a will for a client that personally benefits the lawyer — essentially because of the fear that the lawyer might take advantage of the position of trust that he or she occupies. Does Della Rosa think this is an unjust prohibition?
It is clear from her interview that Jana Della Rosa has some highly unusual ideas about tort reform. I tried to reach out to her so as to better understand her comments, but have yet to hear back (this blog will be updated if I do hear back). Perhaps she is simply satisfied with her view that those who are pushing tort reform don’t know what they are talking about. That’s a pretty harsh judgment to make about half of her colleagues in the state Capitol. My own opinion at this point is that she is a wonderful example of how a little knowledge is a dangerous thing.