Lawyers vs. lawyers

Posted: June 24, 2018 at 2 a.m.

The opening of the Arkansas Bar Association's annual convention this year ended with a grand party as lawyers got a lot of play money to flash around as they pretended to go to the races. But there was a lot of real money at stake once the assembled counselors switched to debating the fate of Issue 1 on this state's ballot come the general election slated for November.

For there, right next to the popcorn booth, stood a real-life former justice of this state's Supreme Court seeking donations to assure the defeat of that proposal when the whole state goes to the polls.

And what does this Issue 1 propose? It would set caps on attorneys' fees and certain lawsuit damages, plus give legislators the final say on rules that govern the courts. Its supporters in law and business say it's about time for such a reform because it will reduce the too-high cost of doing business in Arkansas by cutting the cost of having to defend against frivolous and baseless litigation. At first, cursory glance it sounds like a good idea whose time should have come quite a while ago.

Except that Her Honor Annabelle Imber Tuck begs to differ. "This part that they're not talking about," she says of Issue 1's supporters, "is the part that will destroy our courts because it will bring in money and politics." As if the Arkansas voters' selection of justices weren't already deeply immersed in money and politics. Let's just say that Justice Tuck is overstating her case considerably.

Randy Zook, who presides over this state's Chamber of Commerce, says lawyers are exaggerating the dangers presented by Issue 1. As he puts it: "Lawyers who claim the sky is falling because of the rule-making authority are simply trying to avoid the real issue at hand, which is recruiting doctors to care for our families, boosting our economy and preventing excessive attorneys' fees. That's what Issue 1 is really about."

The state's bar has taken a properly judicious approach in opposing only certain provisions of Issue 1 that would give the Legislature more power over the state's courts, which would include setting up rules of evidence, expert testimony and the way to award attorneys' fees.

But what's a Legislature for except to decide such questions? "We've got plenty of people on both sides of the tort-limitation question," says Tony Hilliard, outgoing bar association president, but is quick to add: "Everyone is opposed to the [proposed new] rules."

Justice Tuck and other members of the state bar are already organizing their own effort to oppose Issue 1. Their campaign is called Defending Your Day in Court. "The other side has massive amounts of money because they have support from special-interest groups. This time the lawyers are going to be going out and talking about this." And they'll have no shortage of arguments to make, for whoever heard of lawyers being short of words? Give 'em a case to make and they'll make it. They're not called advocates for nothing.

The words and the money should soon be flying as this issue grows even hotter. One lawyer, Brad Hendricks of Little Rock, has contributed more than half a million dollars to his own committee opposing Issue 1, the Liberty Defense Network, while another outfit, the Committee to Protect AR Families, has raised more than a $1.5 million to kill the proposal.

The only pity is that all the lawheads on all sides of Issue 1 can't lose. And all their pleas can't be rejected by the voters. But somebody on some side of this argument must win if the other side loses. As for us, we'll be rooting for whichever side has the fewer lawyers.

Paul Greenberg is the Pulitzer Prize-winning editorial writer and columnist for the Arkansas Democrat-Gazette.

Editorial on 06/24/2018