"We know that our constitutional rights are sacred and must be preserved with all vigilance. We look forward to seeing any proposed legislation and will make ourselves available to members of the General Assembly and the governor to help Arkansas in this unprecedented situation."
--Stephanie Malone,
CEO of the Arkansas Trial Lawyers Association
"The lawyers dwell on small details."
--Don Henley
Somebody mark down the date. And check to see if the coffee is spiked. Maybe stop the presses, too. For we agree with the Trial Lawyers Association's statement last week about the proposed special session, suggested by certain Arkansas lawmakers. That is, we also look forward to seeing any proposed legislation on liability protection.
A large part of the state Senate signed off on a letter to Gov. Asa Hutchinson the other day, asking for a special session of the Ledge, the better to provide liability protection to businesses--including those in the health-care business, such as doctors and nurses--as the state awakens from the coronavirus semi-shutdown. The paper said that 23 of 26 Republican senators signed the letter. The holdouts said they wanted to see legislation first. There is something to be said about hesitation in making law.
Conservatives in this state have been pushing for tort reform for years, only to have it held up by the courts. The courts even put the kibosh on asking voters about such reforms. So when certain lawmakers decided to ask for a special session, those leaning starboard in politics probably perked their ears. Doubtless, so did those leaning port.
But then one of the leaders of the pack, Sen. Jim Hendren of Sulphur Springs, said not to worry, this isn't going to be the real thing. Or as he put it: "We are not talking about broad-based tort reform," but just specifics to protect certain businesses.
So it's big enough to need a special session. But not big enough to make a splash? Or a real difference?
Here's another question: If a business, such as a restaurant, is following state guidelines, why does it need special protection? It would seem if the state, as it goes through various stages of reopening, directs restaurants to require masks of its staff, if everybody on the payroll follows the rules then the business would have some protection.
Several states have passed some sort of new rules, whether through legislation or the governor's signature. Sen. Hendren specifically mentioned Utah's efforts in this regard. So we looked at a few stories from The Salt Lake Tribune on their debate(s). We found this in one of the stories on the legislation out west:
"During discussion on the provision at last month's special session, lawmakers agreed that it would be difficult for individuals to bring forward claims even without the legislation, since they would likely face difficulty proving where they actually contracted covid-19.
"But while [the bill's sponsor] said he was unaware of any covid-19-related claims in Utah, he argued it would just be a matter of time--and noted that litigation can be damaging to businesses already struggling financially as a result of the pandemic."
So it's a feel-good measure. And there's nothing wrong with feel-good measures. Especially now. Businesses need a reason to feel confident enough to open doors, when they're allowed. Done right, such legislation can protect the public, businesses, employees, nurses, everybody. Done righter, it can be a step toward real tort reform.
But the details. Here in Arkansas, the Senate leadership hasn't offered many. Will the governor call a whole special session without them? Special sessions aren't cheap. And during a pandemic, they mightn't be healthy. As the old World War II posters put it: Is this trip necessary?
Often enough, the answer was yes. And the trip was made. But in those cases, people knew where they were going. Do the Republicans in the state Senate?
It was once said in song that the lawyers dwell on small details. So do those watching the Ledge.
Editorial on 05/24/2020