The Senate approved a proposed tort reform amendment today.
The measure would place limits on attorney contingency fees, punitive damages, and non-economic damages. It would also allow the legislature to have rulemaking authority over the state court system.
The tort-reform resolution passed by a 21 to 10 margin.
Sen. Linda Chesterfield said in her testimony against the bill that the measure would “usurp the authority” of the judicial branch.
What frightens me is this creeping infringement by the legislature on the other branches of government. It’s a creeping infringement. We are talking about the usurpation of the power of the Supreme Court. Our system of checks and balances is very important. It is the cornerstone of our democracy. We are usurping the authority of the courts. Who is going to check us? If we can usurp the authority of the executive branch…if we can usurp the authority of the judicial branch, who is going to check us?
Currently, 17 states and Congress give rulemaking authority to the legislature to regulate their court systems. Far from “usurping the authority of the judicial branch,” the measure would merely emulate these other states, as well as the system at the federal level.
State Sen. Jeremy Hutchinson said he supports tort reform in general but not this legislation, and said the legislature should wait to pass a different form of tort reform.
He added that the cap on attorney contingency fees was socialism.
It’s called price fixing. It’s socialism, folks. That is what socialism is when you set prices from the government telling individual parties what they can contract for, but because it’s a lawyer…screw our principles. There is a marketplace among lawyers. I wish we could cut the number of lawyers in half quite frankly, but there’s plenty of lawyers out there. People can shop and get the best price possible based on the quality and expertise of that lawyer. We trust those people to make those decisions when they buy a car, furniture or cheeseburgers. But when it comes to a lawyer, all of a sudden people aren’t capable of contracting for themselves and it’s offensive to [say that] the people of Arkansas who are incapable of making a decision for who they want to hire and for how much.
Hutchinson, a lawyer himself, is presumably aware that the duties of the counterman at Burger King to customers are just a bit less exacting than the duties of a lawyer to his or her clients. Lawyers owe a fiduciary duty to clients; it is more than a little absurd to say that a client who has disclosed his or her own financial particulars to a lawyer then faces an equal bargaining position. This is why lawyers who enter into business partnerships with their clients are, for good reason, tightly regulated; this is why lawyers are typically disallowed from writing themselves into their clients’ wills. Really, a lawyer who alleges that such protective measures are “socialism” should know better. Of course, it was Sen. Hutchinson who explained a few years ago that the legislature’s creation of a new Medicaid entitlement was simply emulating Reagan and Goldwater — so perhaps the best lesson to draw from this is that the zeal of an advocate is sometimes boundless.
Sen. Missy Irvin, a sponsor of the measure, would reverse the “wholesale takeover of the legislative” branch brought about by an amendment approved by voters in 2000.
I heard that this is a wholesale takeover of the judicial system. No, this is not a wholesale takeover of the judicial system. What they did in Amendment 80 was a wholesale takeover of the legislative branch. I think this bill is absolutely necessary to regain the power of the legislative branch to put forward any civil justice reform for the people to decide. I’m asking you to allow those that are smart enough to serve on a jury, they’re smart enough to vote on this at the ballot box in November.
Amendment 80 became law in 2000 and states the Supreme Court “shall prescribe the rules of pleading, practice and procedure for all courts.” Before this amendment, the legislature was in charge of rulemaking for the state court system.
State Sen. Alan Clark said he didn’t think the legislation was perfect, but he was still going to vote for the measure.
The trial lawyers will keep us fighting for the next two decades and they will never bring us a solution. I’ve begged them to. When Sen. Hutchinson said, “let’s wait again”…I wasn’t here in 2011 when Sen. Stubblefield carried a tort reform bill, but I was here in 2013 when I thought we were going to do tort reform and in 2015 I thought surely we were going to do tort reform. Now, we’re here in 2017 and we’re saying let’s wait some more. I’m like Sen. Stubblefield…I don’t think this bill is perfect, but I’m going to vote for it.
The legislation will now head to the house where it already has a large amount of support judging from a list of co-sponsors.
If approved by the House, the amendment would be put before a vote by the people of Arkansas on November 2018.