Civil Justice Report Dispels "Tort Reform" Myths

On April 16, 2018, the Office of Research and Justice Statistics ("ORJS") published a report based on Arkansas court data that contradicts the talking points of most tort reform proponents. The ORJS report examined available data from civil cases in Arkansas district and circuit courts for 2017. It was recently filed as an exhibit to a reply brief in retired Pulaski County Circuit Judge Marion Humphrey's lawsuit challenging the constitutionality of Issue 1 , a proposed constitutional amendment referred to voters by the state legislature for the November 6, 2018 general election. Issue 1 is the legislature's gift to its greatest benefactors - namely, corporate nursing home owners and insurance company lobbyists . The proposed amendment would place arbitrary caps on non-economic damages, such as a person's pain and suffering and the lost value of life, and punitive damages meant to deter others from engaging in wrongful conduct. It would also give our state legislature (and, consequently, their lobbyist cohorts) superseding control over the Court's rule-making authority and limit attorney's contingency fees. All this is to be done in the name of protecting businesses from "frivolous lawsuits."

However, the ORJS report indicates that the perceived widespread problem of "frivolous lawsuits" does not actually exist. As any attorney who's actually stepped foot in a courtroom will tell you, "tort reform" is a solution in search of a problem. Litigation is too expensive and time-consuming for attorneys to spend their time pursuing trivial cases. Court rules already prohibit and provide sanctions for parties and attorneys who file frivolous lawsuits - a strong reason, one would suspect, that the problem doesn't exist. Still, the perception of our civil justice system being overrun with baseless lawsuits filed by greedy trial lawyers has persisted, in large part due to a concentrated marketing effort by corporate interests to spread lies and propaganda discrediting our civil justice system and the right to trial by jury.

The ORJS report confirmed that the majority of civil cases are contract cases, which accounted for 57% of disposed cases overall, including 85% of district court cases and 50% of circuit court cases. Debt collection cases alone accounted for 36% of all cases , and landlord/tenant unlawful detainer cases accounted for another 11%. Small claims cases accounted for 14% of district court cases (3% of cases overall). Tort cases (such as motor vehicle accidents, products liability, and medical malpractice) only accounted for 9% of cases overall. As an aside, I would note thatonly 15 of the dozens of district courts maintain the electronic case data necessary to produce the ORJS report. Since 85% of district court case filings are contract claims (i.e., debt collection lawsuits), and since almost no tort cases are filed in district court, the percentage of tort cases compared to all civil cases filed is likely much lower than 9%.

The report also found that less than 2% of all civil cases included awards of over $100,000, and that Arkansans had a lower likelihood of being represented by a lawyer in state court than other states' citizens nationally. In the absence of any data to support their claims, why are some of our state politicians complaining about frivolous lawsuits and runaway juries? To quote Hamlet , "[t]he lady doth protest too much, methinks."

I've quoted the conclusion of the ORJS report, which accurately sums up the real problem:

As noted in the NCSC reports, the portrait of civil cases in Arkansas shown by these data are quite different from those suggested in public debate. The vast majority of cases involve fairly low dollar amounts, and many litigants are not represented by attorneys. From the data available, it appears that jury trials in civil cases are rare, and that most cases are settled, have a bench trial, or are dismissed.

Issue 1 is not beneficial to the citizens of Arkansas. It's a Trojan horse that's designed to convince you to vote to effectively take away your own right to a jury trial and give special interest groups a leg up in litigation. If Issue 1 passes, it will allow many wrongdoers to avoid accountability and keep meritorious cases out of the courtroom. Thankfully, I have more faith in Arkansans' ability to recognize the truth and reject Issue 1 on November 6.

If you're interested in viewing the full ORJS report, click here.