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Inside The Arkansas Civil Justice Reform Act
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Publisher Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com editor Anna K. Hubbard executive director Karen K. Hutchins Editorial Board Gordon S. Rather, Jr., Chair Judge Wiley A. Branton, Jr. O. Milton Fine II Judge Victor A. Fleming Brandon J. Harrison William D. Haught Philip E. Kaplan Mary Beth Matthews Drake Mann David H. Williams Teresa M. Wineland OFFICERS President Tom D. Womack Board of Governors Chair Harry A. Light President-Elect Charles L. Harwell Immediate Past President Jim L. Julian Secretary F. Thomas Curry Treasurer William A. Martin Parliamentarian Sean T. Keith Young Lawyers Section Chair Brian M. Clary BOARD OF GOVERNORS Seth T. Bickett Thomas M. Carpenter Earl Buddy Chaddick, Jr. Tessica C. Dooley Richard C. Downing Frances S. Fendler Amy Freedman David M. Fuqua Amy C. Grimes Anthony A. Hilliard Don Hollingsworth Paul W. Keith Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Brian H. Ratcliff John C. Riedel Brian M. Rosenthal Brock Showalter Danyelle J. Walker Dennis Zolper
LIAISON MEMBERS Zane A. Chrisman F. Thomas Curry Jack A. McNulty Harry Truman Moore Judge Alice Lightle Carolyn B. Witherspoon Karen K. Hutchins Judge Vann Smith
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, email@example.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2011, Arkansas Bar Association. All rights reserved.
Lawyer Vol. 46, No. 4
10 The Arkansas Several Liability “Catch 22”: The Civil Justice Reform Act Post Johnson Scott M. Strauss 14 The Arkansas Civil Reform Act of 2003 and Johnson v. Rockwell Automation, Inc. James Bruce McMath 18 The Perplexing Problem of the Absent Joint Tortfeasor Brian G. Brooks 22 Negotiating Arkansas’s Law of Several Liability Joseph Falasco 26 Report from the 2011 National Conference of Commissioners on Uniform State Laws Lynn Foster 28 Sterling Robertson Cockrill: The Youngest Chief Justice, Part 2 Michael B. Dougan 30 Appeal (Supersedeas) Bonds Cindi Thessing
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Contents Continued on Page 2
Lawyer The Arkansas Vol. 46, No. 4
in this issue Association News
Congratulations to New Members
Lawyer Community Legacy Award
Attorney Disciplinary Actions
Arkansas Bar Foundation Memorials and Honoraria
columns President’s Report
Tom D. Womack
Young Lawyers Section Report
Brian M. Clary
Your Name in Print The Arkansas
A publication of the
Arkansas Bar Association
Vol. 46, No. 4, Fall 2011 online at www.arkbar.com
Inside The Arkansas Civil Justice Reform Act
For information on submitting articles for publication, go to www.arkbar.com Publications/ The Arkansas Lawyer or email firstname.lastname@example.org
Arkansas Bar Association
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HOUSE OF DELEGATES Delegate District A-1: Anthony W. Noblin, Kristin Pawlik, William J. Trentham, Hollie Greenway and Jon B. Comstock Delegate District A-2: Brock Showalter, Suzanne Clark, Paul D. Reynolds, W. Marshall Prettyman, Jr., Stan B. Baker, Matthew L. Fryar, Tina M. Hodne, Chad L. Atwell, Boyce R. Davis, Amy M. Driver and Curtis L. Nebben Delegate District A-3: Joel D. Johnson, Stephanie Harper Easterling, Farrah L. Fielder, C. Michael Daily, Lisa-Marie France Norris Delegate District A-4: Erik P. Danielson Delegate District A-5: Brent Capehart Delegate District A-6: Emily Sprott McIllwain Delegate District A-7: Michael E. Kelly Delegate District B: Patrick L. Spivey, Shaneen K. Sloan, Jason Earley, Jerald “Cliff” McKinney II, John P. Perkins III, Victor D. “Trey” Wright, Mark W. Hodge, Cathy Underwood, Jodie Lynn Hill, Grant M. Cox, James Paul Beachboard, M. Stephen Bingham, Phillip M. Brick, Jr., Khayyam Eddings, Whitney Foster, Stephen R. Giles, Christian Harris, Aaron L. Squyres, J. Adam Wells, Dan C. Young, John T. Adams, Amber Wilson Bagley, Stephanie M. Harris, Jeffrey W. Hatfield, James E. Hathaway III, Paula Juels Jones, William C. Mann III, Patrick W. McAlpine, Gwendolyn L. Rucker, Thomas G. Williams Delegate District C-1: Jay Scurlock Delegate District C-2: Jerrie Grady Delegate District C-3: Keith L. Chrestman, G. S. Brant Perkins, J. Roger McNeil Delegate District C-4: Curtis J. Walker Delegate District C-5: Albert J. Thomas III, A. Jan Thomas, Jr. and William “Zac” White Delegate District C-6: Charles E. Clawson III, Shane A. Henry Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Charles D. Roscopf, Paul T. Bennett, Jackie B. Harris Delegate District C-9: Leslie Jo Ligon, Timothy R. Leonard, John R. Byrd, Jr. Delegate District C-10: Shivali Sharma and George M. Matteson Delegate District C-11: J. Philip McCorkle, Rodney P. Moore Delegate District C-12: Wade T. Naramore and J. Joshua Drake Delegate District C-13: Sam E. Gibson and Cecilia Ashcraft Law Student Representatives: Angela Artherton, University of Arkansas School of Law; S. Kate Fletcher, UALR William H. Bowen School of Law
The Arkansas Lawyer
At the end of the day...
Who’s Really Watching Your Firm’s 401(k)? And, what is it costing you? • Does your firm’s 401(k) include professional investment fiduciary services? • Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors? • Does your firm’s 401(k) feature no out-of-pocket fees?
If you answered no to any of these questions, contact the ABA Retirement Funds Program to learn how to keep a close watch over your 401(k). Phone: (800) 826-8901 email: email@example.com Web: www.abaretirement.com
Who’s Watching Your Firm’s 401(k)? The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (800) 826-8901, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Arkansas Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. C11-0318-012 (3/11)
The Arkansas Lawyer
by Tom D. Womack
Many Lawyers, Yet the Unmet Need for Legal Services Since the early 1970s, the American Bar has grown more rapidly and changed more profoundly than in any comparable length period in history. This dramatic growth was initiated in the 1972-1973 academic year, when the number of students enrolled in law school was approximately 30 percent of the total number of U.S. lawyers at that time. The total number of U.S. lawyers went on to double during that decade. Since the 1970s, student interest in becoming lawyers has remained strong, and one effect has been an almost quadrupling of the size of the legal profession from about 300,000 in 1970 to almost 1,200,000 today. As a result, today we have a greatly increased number of fellow lawyers chasing the same work. The demand for lawyers has also increased, although not proportionately. Convincing studies have been done which show that the most important factor driving the need for legal services is not the growth in population or the degree of regulation, not the willingness of courts to deal with new legal theories, and in fact not anything internal to the legal system. Instead, demand for legal services correlates most closely with growth in gross domestic product—the measurement of the level of economic activity in the country generally. As we all know well, economic growth has been very limited since 2008. The United States at present fails to provide its poor citizens with an adequate access to justice. The Legal Services Corporation estimates that only about 20 percent of poor people needing legal help get it. Even if this figure proves to be exaggerated, a much larger emphasis on caring for individuals in need is desirable. Ordinary Americans want legal services made available to them at reasonable costs by lawyers who are competent, diligent, trustworthy, and loyal. While major corporations encounter few problems in obtaining adequate legal services, for ordinary Americans the data
indicates otherwise. For most of the public the exposure to lawyers is very infrequent. Onethird have never consulted a lawyer, and more than another third have consulted a lawyer on only one matter. Only about 10 percent of Americans report professional exposure to three or more lawyers during their lifetimes. There is a vast unmet need for legal services in our population. The time and energy of lawyers are primarily devoted to relatively well-to-do individuals, small businesses, and large organizations. Typically lawyers in private practice spend only a small portion of their time in the representation of low income clients in civil matters. In information developed through surveys, it is estimated that only about 10 percent of the effort of those lawyers who represent individual clients is devoted to those persons with incomes in the bottom one-third of the population. In terms of the provision of free civil legal assistance to eligible poor people, the data indicates that less than one percent of U.S. lawyers are engaged fulltime in representing poor people or otherwise unrepresented interests in civil matters. Social advocacy litigation groups such as prisoners, welfare recipients, and victims of institutional discrimination are largely dependent on the efforts of this small band of public interest lawyers. The cost of legal services has been affected by increased legal complexities, specialization, development of technology, and increasing entry costs for new lawyers. The question posed is whether legal services of reasonable cost, quality, and variety can be made available to those other than the well-to-do, given the abundance of lawyers available to perform the services. For those who can pay reasonable charges, a competitive marketplace for legal services offers a potential for providing services that consumers want at prices they are willing to pay. For those who are unable to meet even
“Certainly there is a critical social objective in making legal services broadly available, and if we lose sight of it, we will be diminished as a people.” reasonable charges, other mechanisms are necessary to provide free or reduced fee services. Arguments are made that consumers would benefit from the provision of a variety of quasi-legal services performed by non-lawyers or by organizations comprised only partly of lawyers. This includes initiatives to allow increased involvement of paralegals and other support personnel, the concept of which is a threat to the profession’s preeminence of the legal service market. Thus, the ability to utilize the abundance of supply of lawyers now available to meet at least some of this unsatisfied demand would be of considerable assistance to the profession and would ensure a continued level of adequate quality of services for the consumer. So at a time when our legal education system and bar regulatory authorities are producing more lawyers than ever, we are faced with the corresponding anomaly that the provision of civil legal services to the poor and middle class is in many instances going unmet. Lawyers often state that without their willingness to make their services broadly available in non-criminal cases regardless of a client’s ability to pay, the American legal system would be less able to make equal justice a reality. Certainly there is a critical social objective in making legal services broadly available, and if we lose sight of it, we will be diminished as a people. In addition to the profession’s obligation to support pro bono services, we need to move toward matching the supply side of the market, at a historic high, with the substantial demand represented by people of lesser means. n
Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
Association News Two Members Announce Their Candidacy for Association President Richard C. Downing and Jim Simpson have announced their candidacies for President-Elect of the Arkansas Bar Association. The deadline for filing was October 31, 2011. Association members will receive ballots in the mail during the month of November. The candidate receiving the highest number of votes cast in the election becomes the President-Elect Designee, and succeeds to the office of President-Elect at the conclusion of the 2012 Annual Meeting. Members are encouraged to vote and return their ballots by December 15, 2011. I am privileged to be a member of the Board of Governors. From that experience and being chairman of the Membership Committee, tenured House of Delegates delegate, IOLTA Foundation President, and President of the Pulaski County Bar Association, I have witnessed the volunteerism and talent of Arkansas lawyers. We will attempt to “grow” Richard C. Downing that spirit by targeting young members, increasing membership, and expanding literacy and citizenship efforts. I graduated from the University of Arkansas School of Law and have practiced law in Little Rock since 1974. I am currently of counsel to James, Fink & House. I am married with three children and one grandson, love sports, and have left innumerable unintended golf divots. I appreciate your vote and the chance to serve.
It would be a true honor to serve as your President of this wonderful Bar Association. Beginning in the 1980s, I have been able to serve in the Young Lawyers Section as a Chair and a member of several committees and task forces. I served 11 years in the House of Delegates (tenured), six years on the Board of Governors, two years as Parliamentarian, and finally as Chair of the Annual Meeting Jim Simpson in Hot Springs. Most recently I have been privileged to be a part of the faculty of the Arkansas Professional Practicum attended by all our newest lawyers. I am a partner at Friday, Eldredge & Clark in Little Rock where I am head of the firm’s General Litigation Practice Group. I graduated from the University of Arkansas School of Law. My heart is truly with this profession, this Association and the state of Arkansas.
Celebrating 25Years Congratulations to members of the Arkansas Bar Association celebrating their 25th year of practice. Michael L. Allison Richard Lance Angel Karen R. Baker George “Jay” Bequette, Jr. Raymond E. Boyles Laurie A. Bridewell William G. Campbell, Jr. T. David Carruth Janis J. Chalmers Ronald Alan Cline Tamra Cochran Walter K. Compton Kathy A. Cruz Carol C. Dalby Dennis J. Davis John Gary Davis Ronald F. Dooms Angela M. Doss D. West Doss James H. Druff 6
The Arkansas Lawyer
R. Frank Dudeck III J. Benton Dyke, Jr. J. Leslie Evitts III Frances Morris Finley Paul N. Ford Janet P. Gallman George E. Gibbs Greg R. Giles Robert L. Gross Mildred H. Hansen David Warner Harrod Hani W. Hashem Lorraine Hatcher Annie Powell Hendricks Rosanna Henry Marceliers Hewett Chandra L. Hicks William McNova Howard, Jr. Bobby L. Howell Martha G. Hunt www.arkbar.com
Stephen N. Joiner Cynthia Orlieck Jones Glenn E. Kelley Jerry L. Lovelace P. Drake Mann Cheryl Kathleen Maples Linda K. Marshall Everette L. Martin Stacey E. McCord Warren A. McCormick Carla R. Nadzam Norman Douglas Norwood M. Darren O’Quinn Pamela S. Osment Daniel L. Parker Gregg Parrish Ed Phillips Willard Proctor, Jr. C. Randy Rainwater Michael Keith Redd
William Lee Richardson Michael Brett Rogers Richard F. Schmidt Mary M. White Schneider David C. Schoen J. Fletcher See III Jay F. Shell Mike David Shinn Lavenski R. Smith David A. Smith Paul J. Teufel Jeffrey H. Thomas Scott C. Trotter Scott H. Tucker Kent G. Vestal, Jr. Paul D. Waddell Gordon M. Wilbourn Lisa M. Wilkins Laura G. Wiltshire Russell B. Winburn
Arkansas Bar Center
ACCOLADES Valerie Kelly, Assistant Attorney General, was recently honored with the Alumni Council Award for Service to Princeton University for 2011. John E. Tull III of Quattlebaum, Grooms, Tull & Burrow PLLC in Little Rock was recently inducted as a Fellow of the American College of Trial Lawyers. Amber Davis-Tanner, a new associate to the law firm of Quattlebaum, Grooms, Tull & Burrow PLLC, scored the highest score on the recent bar exam. The Arkansas Bar Association received a Bronze Quill Award of Excellence for the 113th Annual Meeting marketing campaign from the International Association of Business Communicators. APPOINTMENTS AND ELECTIONS Judge Joyce Williams Warren recently received the “Living Legends Award” from Philander Smith College in Little Rock. Congratulations to three members recently honored by the Northwest Arkansas Business Journal as members of the 2011 “40 Under 40” Class: D’Lorah Hughes, Associate Law Professor, University of Arkansas School of Law; Tony Juneau, Mitchell, Williams, Selig, Gates & Woodyard, PLC; and Joseph Reece, Reece Moore Pendegraft LLP. Mary Bassett of Fayetteville was reappointed to the Arkansas Judicial Discipline and Disability Commission. David Boling was named Executive Director of the Mansfield Foundation. Rosanna Henry of Dyke, Henry, Goldsholl & Winzerling, PLC Little Rock was recently elected to the board for the American and Legal Financial Network. Michael B. Phillips of Moffitt & Phillips, PLLC in Little Rock joined the National Network of Eminent Domain Lawyers. Jon B. Comstock, Circuit Judge Division II for Benton County was elected as the Secretary of the American Judicature Society. Arkansas Supreme Court Chief Justice Jim Hannah was nominated by President Obama as a member of the State Justice Institute’s Board of Directors. Chief Justice Hannah has also been reappointed for a three-year term to the Judicial Conference Committee on Federal-State Jurisdiction. Frank Arey was recently reelected to the board of directors of the Legal Services Staff Section. The National Academy of Distinguished Neutrals announced the launch of an Arkansas Chapter, recognizing the state’s leading ADR practitioners for excellence in the field of dispute resolution. Six attorneys and former judges have been inducted as Charter Members of the Arkansas Chapter: Robert Hornberger, Richard Lusby, Jack Davis, Frank Hamlin, Sid McCollum and Dewey Watson. WORD ABOUT TOWN Kelly Halstead announces the opening of the Halstead Law Firm, located at 425 West Capitol, Suite 3200, Little Rock, AR. Conner & Winters, LLP announced that G. Alan Wooten has joined the firm’s Northwest Arkansas office as a partner. Corey McGaha recently joined Emerson Poynter LLP in Little Rock as an associate. Send Oyez information to: firstname.lastname@example.org.
A Guide to Arkansas Statutes of Limitations F R E E D O W N L O A D T O M E M B E R S Seventh Edition Revised March 2011
Prepared By Arkansas Bar Association Young Lawyers Section
Space available for: n Meetings n Receptions n Mediations n Arbitrations n Depositions n Visiting attorneys n Video Conferencing n Free for members
To reserve call 501-375-4606 or 800-609-5668
Arkansas Bar Foundation Mid Year Dinner Friday, February 10, 2012 Pleasant Valley Country Club
www.arkbar.com Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
Congratulations Storm Bruce Adams Lauren Elizabeth Alexander Laura Susan Avery Lauren Oswalt Baber Adam James Bailey Russell Payton Bailey Joseph Grant Ballard Melissa Leigh Bandy Kayla Michelle Barnett Colleen Ann Barnhill Robert Bradley Beach Brandon Wayne Beam Tyler Heath Benson Philip Stanley Beuth Jessica Alan Billingsley Adam Loran Bodeker Kristy Elizabeth Boehler Jessalynn Mett Born Clark Joseph Brown Alex Roberto Burgos Benjamin Neal Burns Kyle Eckert Burton Jennifer Leigh Bush Kara Lynn Byars LaTrenia DeShawn Byrd Bart Widener Calhoun Jonathan Michael Camp Jennifer Lynn Carleton Margaret Katherine Carver Walden Matthew Cash Glenn Edward Cason Kevin Daniel Christian Adrielle Lynn Churchill Jennifer Marie Cole Joshua Ryan Collums Jared Shane Cox Cory Scott Crawford Stephen Wheeler Creekmore Jacqueline Sue Cronkhite Amber M. Davis-Tanner Jeremy Joseph Disotell Justin Edward Downum Lyndsay Carol Duncan Jana Kristen Eager Megann Elizabeth Edwards Richard Martin Elliott Tai Jacquelyn Estopy Bryant Edward Ferguson Brittney Dawn Flinn Brianne Autumn Franks Kelly Micaela Freeze John Daniel Gallagher 8
The Arkansas Lawyer
to the new members admitted to the practice of law September 2011
David Louis Gershner Timothy Joseph Giattina Kenya Jurae Gordon Angela Michelle Griffith Elizabeth Marie Gunsaulis Haley Michelle Heath John Tyler Henderson Ashley Camille Henson Jacob Russell Howell William Marshall Hubbard Hannah Oldham Huegel Tyler Cole Humphries Seth Daniel Hyder Amanda Renee Jarvis Seth Ryan Jewell Amy Katherine Johnson Ronnie Scott Johnson Brian Williams Johnston Jillian Rebecca Jones Justin Kyle Kavalir Tiffany Tackett Kell James Cameron King Erin Ann Knapp Kristopher Curtis Koelemay Allison Elizabeth Koile Jennifer Morganne Lancaster Clinton Wade Lancaster Scott Michael Lar Holly Michelle Lar Shawn Alexander Latchford Hoss Cody Layne Lois Anne Lea Nicole Michelle Lecointe Victoria Leigh Laura Anna Lensing Tammy Michelle Lippert Aimie Jo Lockwood Kale Lewis Ludwig Jason Elliot Lynch George Andrew Makris Thomas Martin Marks Samuel Adam Martin Heather R. Martin-Herron Kyle Thomas Mayton Clayton Edward McCall Jonathan David McFadden Lisa Marie Medford Michael Alan Moats Angela Lee Moore Jonathan Tyler Morgan Matthew Ross Mulling Patrick Henry Murphy
John William Murry Gregory James Northen Christopher Ryan Oâ€™Quinn Robert Christopher Oswalt Chanley Shaâ€™ Painter Martinque Marie Parker Tiffany Renae Parker Brandon Heath Patterson Elizabeth Calhoun Pearce Lisa Marie Perez Rachel Elizabeth Pickett John Dorsey Pike Joshua Landes Potter Jacob Stem Potter David Lee Powell Stephen Charles Rauls Jeffery Christopher Rippy George Pierce Ritter Glenn Scott Ritter Jace Mark Roberts Joshua Michael Robles Quincey Maurice Ross Matthew Scott Runge Octavio Lopez Sanchez James Tucker Sayes Jessica Jean Schirmacher Meghan Marie Schroeder Lisa Michelle Simpson Charlcee Cay Small Stephan Craig Smith John Edward Steiner Patrick Kyle Story Noah Michael Strom Jessica Melinn Stutte Ahban David Sumler Jeffrey Martin Swann Ryan Alan Swanson Jessica Lindsey Tankersley Mary Tipton Thalheimer Diane Torres-Porter Jeffrey Troy Wall Katie Elizabeth Watson Robert Michael Wells Laura Ruth Westbrook Wesley DeWayne Whitmore Alisha Kay Williams Hunter Mark Windle Courtney Marie Witte Billy Charles Woodell David Randal Wright
Young Lawyers Section Report
by Brian M. Clary
In Need of Mentoring Most of us should appreciate the wisdom that comes from experience. This principle was not as clear during our teenage years (at least not for me) when our parents were sources of irritation, not insight. At some point in our personal lives, we recognized that our parents had travelled the road before us and that their fortunes and mistakes could help us on our own journey. The same should be true in our professional lives. As a young lawyer, I often seek out an “adult” when faced with an issue of first impression. Whether facing a grave legal matter or simply trying to choose between the circuit or county clerks, I know an adult has been there before me. These adults are my mentors. All young lawyers should have at least one. Who is a mentor/mentee and what is the mentor/mentee relationship? The dictionary defines a mentor as “a trusted counselor or guide” and a mentee “as one being mentored.” Trust is critical to the mentor/mentee relationship. Just as a client expects that her attorney will keep her confidences, a mentee should be confident that his mentor will do the same. Mentors should be ethical practitioners and serve as good examples both to the mentee and the larger legal community. At a recent American Bar Association meeting, a managing partner in a large firm suggested different types of mentors that had been helpful to him during his early career. His mentors were either “coaches” or “advocates.” The coach provided advice on a given topic, suggested alternatives, highlighted pitfalls, and sent him on his way with a word of encouragement. His coach was his immediate supervisor. His advocate, on the other hand, was a senior partner that supported his professional development, spoke up for him in a crowded board room, and came to his defense after a mistake had been made. However you describe them, mentors wear different hats and can provide insight on any number of topics. A mentee may
not find everything he or she needs in one mentor. One mentor may provide professional development, another offer work/ family balance, and yet another stop us before we go off the rails. A seasoned mentor can be of great assistance and comfort when staring an ethical dilemma in the face. Where can I find a mentor? Many of us work in an environment that provides ready-made mentors. Young lawyers in large and medium size firms may have many options. The mentee may find a mentor in the same practice group or one that shares similar community interests. He or she may also find a mentor completely unlike himself. These mentees may also be the beneficiaries of in-house mentorship programs. Others may find a mentor by chance or in court. From time to time, you may see a successful lawyer or judge and think to yourself “I want to be her when I grow up” or “he really has it together.” Jump at the opportunity to take those attorneys to lunch and pick their brain. I suspect they will enjoy the experience as much as you. The Association provides a wealth of opportunities to forge mentor/mentee relationships. Serving on a committee, volunteering at an event, or socializing at the Bar Center puts young lawyers in contact with an array of attorneys from across the state. In addition to these efforts, the Association will begin to ask for “adult” attorneys to serve as mentors to young lawyers. While this program is open to all young lawyers, it may be especially helpful for those recent graduates that are contemplating hanging out their own shingle or those moving to rural parts of the state that lack an established legal community. The program will further the Association’s goal of “fostering and maintaining on the part of those engaged in the practice of law high ideals of integrity, learning, competence and public service, and high standards of conduct.” It will also “encourage cordial relations among attorneys.”
Why Mentor? Experienced Attorneys Wanted. A successful program will require experienced attorneys to serve as mentors. It is our hope that judges and attorneys of all backgrounds will give serious consideration to those young lawyers that request assistance. The Association seeks attorneys engaged in the active practice of law, retired attorneys, attorneys from rural and urban areas, and attorneys from all areas of practice. Please share your wisdom. You are an excellent source of information and guidance. Mentors will benefit from sharing their values with a new generation of attorneys. Mentors will also appreciate the difficulty of starting a new practice in today’s economic environment. You may even learn a thing or two from your mentee. If you are interested in serving as a mentor or having a mentor, be on the lookout for more information in the Association’s newsletters and YLS In Brief. n Young Lawyers Section Chair: Brian M. Clary Chair-Elect: Vicki S. Vasser Sec-Treas: Anne Hughes White Immediate Past Chair: Brandon K. Moffitt Executive Council: District A: Ryan Pettigrew, Brian R. Lester & Vicki S. Vasser District B: Cory D. Childs, Grant M. Cox, & Tasha C. Taylor District C: Timothy R. Leonard, Susan Weaver & Ryan M. Wilson At Large Representatives: Tessica Dooley & Cliff McKinney Law Student Representatives: University of Arkansas at Fayetteville School of Law: Angela Artherton UALR William H. Bowen School of Law: S. Kate Fletcher
Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
The Arkansas Several Liability “Catch 22”: The Civil Justice Reform Act Post Johnson
by Scott M. Strauss The latest constitutional challenge to the Civil Justice Reform Act of 2003, Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135, produced a conundrum that two years later has yet to be resolved. The Arkansas Supreme Court affirmed the legislative change in substantive law from “joint and several” liability to “several” liability but struck down the procedural law implementing that change as a violation of the separation of powers doctrine. The court ruled the General Assembly’s attempt to supply a procedure by which to implement the change from “joint and several” liability to several liability was unconstitutional because the power to implement procedure is constitutionally vested in the courts, not the legislative body. The court’s decision leaves unanswered the question of how a defendant, who is a proximate cause of the plaintiff’s damages, but not the sole proximate cause, limits his liability to his own share of fault? Because the court staked its exclusive claim to procedural rule making authority, it must now exercise that authority. It must now create a procedure implementing the substantive change from “joint and several” liability to “several” liability. Otherwise, there has been no change. Stated differently, and with due apologies to Marie Antoinette, in the absence of a procedural change we may have our cake, but we may not eat it. The Arkansas Civil Justice Reform Act, Act 649 of 2003, incorporated a number of provisions concerning apportionment of both liability and damages. In general terms, Arkansas Code Annotated § 16-55-201 provided for several rather than joint and several liability. The statute, in its entirety, reads as follows: (a) In any action for personal injury, medical injury, property damage, 10
The Arkansas Lawyer
or wrongful death, the liability of each defendant for compensatory or punitive damages shall be several only and shall not be joint. (b) (1) Each defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault. (2) A separate several judgment shall be rendered against that defendant for that amount. (c) (1) To determine the amount of judgment to be entered against each defendant, the court shall multiply the total amount of damages recoverable by the plaintiff with regard to each defendant by the percentage of each defendant’s fault. (2) That amount shall be the maximum recoverable against that defendant. The next provision, Arkansas Code Annotated § 16-55-202, provided for the apportionment of fault among non-parties
and supplied a framework by which to identify those non-parties, the filing of pleadings identifying the non-parties. However, in Johnson v. Rockwell, the court ruled Arkansas Code Annotated § 16-55-202 was an unconstitutional violation of the separation of powers doctrine which reserves to the courts the sole authority to govern pleading, practice, and procedure.1 In the same opinion, the court went on to state: Clearly the law modifying joint and several liability, Arkansas Code Annotated § 16-55-201, defines the right of a party, a defendant, and is substantive. Stated simply, the Arkansas Supreme Court ruled that the procedure set forth in Arkansas Code Annotated § 16-55-202 by which one identifies and apportions fault to non-parties was an unconstitutional intrusion upon the court’s exclusive authority to govern procedure. At the same time the court recognized the change from joint and several liability to several liability set forth in Arkansas Code Annotated § 16-55-201 as a substantive change within the General Assembly’s authority, and consequently not in violation of the Arkansas Constitution. The clear impact of the court’s ruling in Johnson is to leave in place the General Assembly’s intent that any one defendant not
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Personal Injury Product Liability Medical Negligence Nursing Home Cases 1001 La Harpe Blvd., Little Rock, AR 72201 501-224-7400 1-888-4GARY GREEN (442-7947) www.gGreen.com ggreen@gGreen.com be required to pay more than its share of liability as set forth in Arkansas Code Annotated § 16-55-201.2 This of course leaves the question, in the absence of the non-party fault process contained in the now stricken § 16-55-202, of how to instruct a jury to assure that a defendant will pay only its share of fault. In other words, consistent with the ruling of the Arkansas Supreme Court reserving issues of procedure solely to the courts, the courts must now develop a procedure enforcing or enacting the substantive change from joint and several liability to several liability set forth by the General Assembly in Arkansas Code Annotated § 16-55-201. A Real Conundrum For The Courts The Arkansas Supreme Court’s decision in Johnson, supra, creates a conundrum by deeming the several liability portion of the Civil Justice Reform Act3 constitutional, but at the same time holding the non-party apportionment portion4 unconstitutional. Specifically, if juries are not allowed to apportion fault to non-parties, what steps must the court take to ensure that a single tortfeasor, with less than 100 percent of any applicable fault, pays only its several share of liability? This issue may be best illustrated by the following hypothetical: Smith, an employee of Acme, Inc., is injured by the combined fault 12
The Arkansas Lawyer
or negligence of his employer and Zenith, Inc., the manufacturer of a tool used by Smith. As noted by the Arkansas Supreme Court in Land O’Frost, Inc. v. Pledger,5 when a statute has been deemed unconstitutional, the court must treat that statute as if it had never been passed. When one combines this rule of law with the court’s holding in McCoy v. Augusta Fiberglass Coatings,6 which prevents apportionment of fault to the plaintiff’s employer, one is potentially left with a single defendant on a verdict form, the tool manufacturer, who as set forth in the hypothetical outlined above, is a proximate cause of the plaintiff’s damages, but not the sole proximate cause. The same conundrum arises when other potential tortfeasors exist who cannot be made a party defendant. These could include a foreign entity upon which service may not be had, the potential co-defendant who simply vanishes or a potential party which settled in advance of trial. This is amplified by the illustrative instructions and interrogatories found in the Arkansas Model Jury Instructions – Civil. Specifically, when a case is submitted on verdict interrogatories, consistent with the Model Jury Instructions, the jury is required to apportion fault, among those parties in the courtroom, using 100 percent as a cumulative total.7 Attention is again drawn to the plain language of Ark. Code Ann. § 16-55-201, which
provides that an entity pay only its share of fault. Attention is also drawn to the specific language in the court’s opinion in Johnson holding the non-party apportionment feature unconstitutional. The Supreme Court did not say non-party apportionment was per se unconstitutional. Rather, the court said the manner of apportionment of fault is in and of itself a procedural issue and the Arkansas General Assembly was without constitutional authority to intervene in the process. Stated differently, the court in Johnson clearly indicated the apportionment statute was constitutionally infirm only because the General Assembly attempted to create procedure. It did not state the procedure set out by the General Assembly was itself constitutionally infirm. Rather, the Supreme Court’s holding is limited to a single issue: the fact the General Assembly attempted to create law governing an issue of procedure renders the attempt unconstitutional, without regard to the contents of the statute itself. Likewise, given that the court in Johnson was not asked to rule upon or decide an issue of procedure created by the lower court, the Supreme Court’s silence on the creation of new procedure is not dispositive. This is clearly evidenced by that body of law standing for the proposition that appellate courts will decide only those issues squarely before them and will not issue advisory opinions.8 Given the Supreme Court’s silence on the proper process to utilize to effectuate the substantive change of joint and several liability to merely several liability, that task falls to the next trial court faced with the issue of several liability and apportionment.9 Given that the court in Johnson did not deem the means chosen by the General Assembly to effectuate several liability (non-party apportionment) constitutionally infirm, and in light of the court’s authority to regulate procedure, the courts are themselves free to adopt the same non-party apportionment measure the General Assembly attempted in the now stricken Ark. Code Ann. § 16-55-202. Because it is the court that adopts procedure, and because the procedure set forth in § 16-55-202 was not found to be per se unconstitutional in Johnson, this only makes sense. This claim is further supported by the black letter law that the public policy of the State of Arkansas can be found in its statutes.10 Clearly, even though the Arkansas General Assembly lacked the constitutional authority (pursuant to the separation of powers doctrine) to create a process enabling the shift to several liability, public policy can
be defined by consideration of the non-party fault provisions contained in the now stricken statute. As noted by the Arkansas Supreme Court in Barre v. Hoffman,11 and Scamardo v. Sparks Regional Medical Center,12 “Public policy is for the General Assembly to decide, not the courts.” Therefore, to the extent the court exercises its rule making authority in furtherance of public policy, that public policy is found in the language of the stricken statute. One might argue that a defendant seeking to pay only its several share of liability should itself shoulder the burden of asserting crossclaims or even third-party complaints against those whom the original defendant believes also have fault. This argument fails for the simple reason that the several liability statute, § 16-55-202, provides in clear and unequivocal terms that a defendant’s liability shall be several. The statute does not provide that a defendant’s liability shall be several if that defendant shoulders the burden of impleading additional defendants. Further, one is left to wonder precisely the nature of a potential third-party claim. Given the advent of several, rather than joint and several liability, it goes to reason there is no longer a cause of action for contribution. Indeed, the plain language of the statute provides a defendant shall only be responsible for its share of fault. By definition, a defendant has no claim for contribution unless and until it has paid more than its share of fault. Consequently, it further stands to reason that a third-party complaint for contribution must necessarily be dismissed for failing to state facts or a claim upon which relief might be granted pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure.
An alternative process by which the courts could effectuate the implementation of several rather than joint and several liability, yet at the same time avoid the hornet’s nest associated with apportionment among non-parties, is the assignment of fault only as to those parties to the lawsuit without regard to the requirement of a cumulative total of 100 percent. As discussed above, the illustrative instructions contained in the Model Jury Instructions require an apportionment of fault among those parties before the court. For example, Illustrative Instruction 5 found on page 673 of the 2010 Edition of the Civil Model Jury Instructions reads as follows:
These divergent points simply cannot be reconciled and one is reminded of the novel ‘Catch 22’ by Joseph Heller in which the fictional character Major Major issues an order that his men can see him only when he is not in. rence and any injuries or damages resulting from it to each of the parties named below. The total of the percentage of fault assigned to each party may not exceed 100 percent; but that percentage is not necessarily required to equal 100 percent. You should assign fault to each party only as determined by your review of the evidence and should you determine that persons or entities that are not parties to the current action share responsibility, then your apportionment as to the parties should, by definition, be less than 100 percent.
Using 100 percent to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible. Again, and utilizing the facts supplied in the hypothetical supra, this instruction requires a jury to apportion total fault at 100 percent even though there are tortfeasors who are not parties. This clearly violates the substantive law of several liability that, again, has been expressly found constitutional, Ark. Code Ann. § 16-55-201. Another reasonable alternative, satisfying the rule of several liability as well as avoiding the non-party issue, might be an instruction as follows: Giving due regard to the evidence and testimony presented to you during the course of trial, apportion responsibility for the occur-
In other words, the jury instruction suggested above would require the jury to assign fault only as regard to a party’s share of the blame without regard to the extent of the fault of others. It is the requirement that fault equal 100 percent that violates the rule of several liability.
Strauss continued on page 40
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Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
The Arkansas Civil Reform Act of 2003 and Johnson v. Rockwell Automation, Inc.
by James Bruce McMath With the passage of the Arkansas Civil Justice Reform Act a/k/a Act 649 of 2003 (ACJRA), the Arkansas legislature attempted to diminish recoveries for victims of tortious personal injury through a variety of mechanisms. Central among such “reforms” was the abrogation of “joint and several liability” in favor of what the legislature called “several” liability, but is more aptly called proportionate liability. Indeed, the term “several” in the phrase “joint and several” has the opposite meaning assigned to it under the ACJRA, referring to the fact that each joint tortfeasor at common law was severally liable for all the damages caused to the plaintiff where there has been a single indivisible injury. The word “joint” in the phrase refers to a procedural modification of the original common law, allowing all contributing defendants to be prosecuted in single rather than separate actions.1 At its core, joint and several liability encapsulates a simple concept: that each party defendant whose wrongful conduct contributed to cause a single indivisible injury should be liable for all the damages caused. In order to avoid double recovery and to address issues surrounding the plaintiff’s potential responsibility for his/ her own injuries, the concept of “fault” was conceived.2 While it is easy to conflate “fault” with cause, they are not the same thing. Where joint and several liability is applicable the injury involved is, by definition, indivisible as to the separate causes.3 Fault of necessity, then, is an assessment based upon culpability.4 It is a falsehood, then, that a defendant is held responsible for damages not arising from its own actions under the joint and several liability concept. A defendant may only pay less, never more, than the total damages he contributed to causing.5 Under the joint and several liability concept, the plaintiff must only show that each 14
The Arkansas Lawyer
defendant was a substantial contributor to the indivisible injury to be entitled to recover against each.6 Allocating fault and seeking and collecting contribution are issues between the defendants.7 This insulates the plaintiff from collectability issues, thereby maximizing the injured plaintiff’s potential for complete recovery, which in the eyes of the common law was a fundamental goal of tort law. Proportionate liability turns this simple concept of justice on its head, shifting the burden and the risks of collection to the plaintiff, justified by conflating “fault” with cause and arguing that it is wrong for any defendant to pay more than its share. Proportionate liability takes a concept invented to provide a means for fairly allocating the cost of a single injury between mutually guilty parties and turns it into a means to deny an injured plaintiff a complete recovery wherever fault can be allocated to financially incompetent, unavailable or immune joint tortfeasors. Institutional tortfeasors, colloquially known as “target defendants” or “deep pocket defendants,” are the obvious principle beneficiaries of such “reform.” These are typically corporate entities whose businesses inherently involve a substantial risk of causing personal harm and have the financial ability to pay for damage caused. For proportionate liability to achieve its maximum benefit for its sponsoring interests, it is necessary to facilitate the inclusion of as many
parties as possible in any division of fault, so as to dilute any one defendant’s liability. This is where the concept of non-party fault or “phantom defendants” finds its highest purpose and most fruitful expression; it is the turbo charger that gives proportionate liability its maximum utility as seen from the perspective of its principle sponsors, the institutional tortfeasor community.8 To maximize the potential for fault spreading, the ACJRA provided a procedure whereby a named defendant could bring the conduct of others into issue by doing little more than naming them as potentially responsible parties 120 days prior to trial.9 This “phantom defendant” portion of the Act places the plaintiff in the position of either adding such parties to the suit, if possible, or undertaking their defense in absentia, the latter without benefit of direct information, cooperation or the various privileges that would normally facilitate a defense. To the extent that fault is thus spread among all those conceivably at fault, it is the plaintiff’s problem to collect from each, which, of course, can’t be done with non-parties. The practical effect of this can be near immunity for an otherwise culpable defendant and an incomplete recovery for the wrongfully-injured plaintiff. In Johnson v. Rockwell Automation, Inc.,10 the Arkansas Supreme Court was presented
James Bruce McMath is a partner with McMath Woods P.A. and specializes in personal injury.
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Barring a determination that it is unconstitutional, proportionate liability is alive and well in Arkansas to the extent that potentially legally responsible parties are brought into a suit. with just such a situation. The plaintiff was injured on the job by what he contended to be a defectively designed industrial switch, made and sold by the defendant to his employer. The defendant, relying upon the ACJRA, sought to have the fault of the immune employer determined in absentia by the jury for purposes of avoiding part or all its liability. The plaintiff challenged the nonparty-fault provision of the ACJRA, codified at Ark. Code Ann. § 16-55-202, as being unconstitutional because it: offended substantive and procedural due-process, under Article 2, § 8 of the Arkansas Constitution; violated Article 5, § 32 and Article 2, § 13 of the Arkansas Constitution, by limiting recoveries for personal injuries; invaded the Arkansas Supreme Court’s constitutional grant of authority to establish the rules of pleading, practice, and procedure pursuant to Amendment 80, § 3 of the Arkansas Constitution; and violated the separation-ofpowers clause of Article 4, § 2 of the Arkansas Constitution. The court chose to resolve the case on the last two grounds, holding that the phantom defendant provisions were pro-
cedural in nature and therefore beyond the bounds of the legislature’s authority. Where does this leave us, and for counsel representing institutional tortfeasors, can any element of the phantom defendant provisions of the act be salvaged? Before addressing these issues, it seems pertinent to address two false concepts about Johnson that are sometimes promoted by those that would salvage non-party fault. First, Johnson did not find the abrogation of joint and several liability to be constitutional. The issue was not presented because it was not ripe, there being no judgment. As relates to joint tortfeasor issues, Johnson addressed only the phantom defendant element of ACJRA.11 The second is the assumption that the court was not critical of the concept of non-party fault, only finding offense in the legislative source of the procedures intended to implement it. Accordingly, so the argument goes, the concept is still alive and we need now only find ways to give substance to the concept through modification of, or creative application of, the existing rules of procedure. That the court did not discuss them does not mean that the court would not find non-party fault offensive on the other grounds asserted, nor does it justify assuming an intent to leave open subsequent implementation by other procedures.12 On the contrary, had the court been of the view that there remained viable substantive elements to the non-party fault concept, it presumably would have undertaken to discuss the other challenges raised, with the goal of articulating the constitutional limits of nonparty fault and the scope of rule changes that would be necessary to facilitate its implemen-
tation, within the constitutionally permissive limits thus articulated. The rational interpretation is that the court perceived that non-party fault, as articulated in Act 649, did not survive Johnson. So far, this seems to be the holding of most courts and the view articulated by the United States Court of Appeals for the 8th Circuit in McCoy v. Augusta Fiberglass Coatings, Inc.,13 where it held it improper to apportion fault to a nonparty employer in light of Johnson, as the effect of a finding of unconstitutionality is to revert the law to what it was before the challenged legislation. As it stands, there is no non-party fault in Arkansas and proportionate liability, if constitutional, operates only to the extent that chargeable parties are made defendants and fault is assigned to them.14 To the extent that Johnson precludes defendants from laying liability off on non-parties, it obviates the most egregious application of proportionate liability. Those who would seek some form of resurrection for non-party fault have to conjure examples where less offensive applications of proportionate liability are arguably frustrated. One such argument is that under the ACJRA, current procedural rules don’t allow defendants to bring in other parties not sued by the plaintiff, including those who have settled.15 They arrive at this by noting that Rule 14 of the Rules of Civil Procedure only allows a defendant to file a third party complaint against one “who is or may be liable to him (the defendant) for all or part of the plaintiff’s claim against him.” With the demise of joint and several liability, the argument goes, a defendant can’t liable for more than
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The Arkansas Lawyer
his share of any fault and, hence, no defendant could ever be liable to another defendant for contribution in this its classic form, and thus no third party action relative to joint tortfeasors is permitted under Rule 14. There is no merit to this argument. Originally, at common law, there was no joinder and no contribution. When the concept of contribution did evolve, it was said that a claim for it was not ripe until the complaining defendant had paid the judgment on the common liability. However, now that joint liability exists, whether a separate action for contribution is ripe does not of necessity define whether a third party action to joint defendants is ripe. Thus, while the Uniform Contribution Among Tortfeasors Act16 provides that a separate cause of action for contribution is not ripe until the complaining tortfeasor has paid a common liability,17 it also provides that right of contribution between joint tortfeasors may be tried at the same time.18 Rule 14 plainly incorporates this idea by providing “may be liable” in defining who a defendant may third party into a case. Such language implies potential future liability as sufficient for such joinder. Wright and Miller, Federal Practice and Procedure 2nd, § 1448 states, concerning this same provision in Federal Rule 14: “[I]t it is not critical that state substantive law does not recognize a right to contribution until the original defendant has paid more than his pro rata share. Any judgment on the third-party claim does not become enforceable until after the common liability has been discharged by the original defendant.” The argument in issue, then, seeks to strangle the plain intent of the Rule by means of applying a linguistic tourniquet through a hypertechnical reading of “may be liable” as synonymous with the historic concepts of contribution which is not ripe until after judgment has been satisfied. A common sense reading of “liable to” as meaning “sharing liability with” resolves the linguistic trap and permits Rule 14 to operate as it is clearly intended to do.19 Beyond the foregoing esoteric analysis, it simply is not true that contribution, in the classic sense, does not exist under ACJRA, this because the latter does not prescribe pure proportionate liability. The act allows a plaintiff to seek some limited reallocation of liability between joint tortfeasors upon a showing that some may not be financially responsible. The result, in such event, would be liability between the defendants in a classic contribution sense.20 Since any such
Carter C. Stein
James Bruce McMath
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Phillip H. McMath
www.McMathLaw.com | 711 West 3rd, Little Rock, AR 72201 | 501.396.5400 www.facebook.com/McMathWoods www.twitter.com/McMathWoods www.linkedin.com/company/mcmath-woods-p-a-
allocation cannot be predicted with certainty on the front end, the “may be” liable language is satisfied even if interpreted as meaning contribution in the classic after the fact sense. The result is not different where a party has settled. Under §16-61-205 a release of a joint tortfeasor does not release the tortfeasor from liability for contribution unless the terms of the agreement releases all remaining defendants to
the extent of the pro rata share of the fault of the settling defendant. The presence of such language obviously invites determination of the pro rata contribution. In the absence of such language a settling defendant is obviously going to demand that a plaintiff defend and hold him harmless in the event of any such McMath continued on page 41
Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
The Perplexing Problem of the Absent Joint Tortfeasor
by Brian G. Brooks Nothing in recent memory changed the legal landscape with respect to personal-injury litigation in Arkansas quite like Act 649 of 2003, Arkansas’s version of tort reform. That Act made both substantive and procedural changes to the law in Arkansas, some of which have been struck down, some of which have been upheld, and some of which have yet to be addressed by the appellate courts. Those that have not been addressed continue to wind their way through the trial courts, posing perplexing problems for litigants and trial judges that lead some judges to exclaim, “this just gives me a headache.” One of the more commonly-arising perplexing problems remaining is how to handle the absent joint tortfeasor now that the portion of Act 649 allowing a “phantom defendant” to be placed on the verdict form has been declared unconstitutional. Johnson v. Rockwell Automation, Inc.,1 of course, struck down the statute’s procedural mechanism for allocating fault to the “empty chair” or “phantom defendant.” It did not, however, establish any other procedural mechanism for dealing with an absent joint tortfeasor. It didn’t even hint at any such mechanism. This void leaves litigants and trial judges to guess at what to do. This article sets forth a simple, logical, legally-supported approach to eliminating this perplexing problem. A. Preliminary Points, Basic Assumptions and Arguments for Another Day. Some preliminary points and assumptions underlie what follows below. One fundamental point is a necessary caveat: Johnson did not declare that Act 649’s abrogation of joint and several liability is constitutionally permissible, and if it is not then no problem exists. Johnson simply held that the 18
The Arkansas Lawyer
abrogation of joint and several liability was a substantive change in the law; thus it does not run afoul of Amendment 80, section 3 of the Arkansas Constitution. Amendment 80, section 3 grants the exclusive right to make rules of pleading, practice and procedure to the Supreme Court, so procedural changes by the Legislature, like those before the court in Johnson, are invalid. Deciding whether the abrogation of joint and several liability is permissible generally or permissible as applied to a particular case was not necessary to the court’s decision in Johnson, thus it did not decide the question. It is incorrect to claim that Johnson accepted the alteration as a substantive change in the law, and substantive changes in the law by the legislature are always permissible. An act that segregates schools would be a “substantive change in the law,” but it would also be unconstitutional. But whether the abrogation of joint and several liability is constitutionally valid is another debate for another day. Article V, section 32 of the Arkansas Constitution poses a substantial problem for that portion of Act 649, and it very well may fall, particularly as applied to a case where the
absent joint tortfeasor is immune from suit. For purposes of this discussion, however, the assumption is made that the abrogation of joint and several liability is the controlling law. It is equally incorrect to assume that Johnson stands for the proposition that no procedure is needed to address absent joint tortfeasors simply because the opinion ignored the problem. Some believe that as to joint tortfeasors who cannot be sued (like immune tortfeasors or employers who benefit from the workers’ compensation bar) something akin to joint and several liability still exists because the court chose not to replace the invalid procedure the Legislature enacted with one of its own. That over-reads Johnson every bit as much as reading a blessing of the abrogation of joint and several liability does. Johnson came to the court as a certified question. The court answered the questions presented. It wasn’t asked to do anything else, and it didn’t. It saved what to do and how to do it for another day in an appropriate case. Those two points are key to this article. What follows here is an approach assuming that the court has not dealt with the correct procedure at all because that is the better reading of Johnson. It also assumes that the abrogation of joint and several liability will stand for the foreseeable future even though that question is far from settled.
Brian G. Brooks is a solo practitioner who focuses on appellate practice and advocacy for the plaintiff ’s bar.
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B. Where the Perplexing Absent Joint Tortfeasor Arises. This perplexing problem of the absent joint tortfeasor arises in various situations but three are predominant: where a plaintiff settles with one or more joint tortfeasors but goes to trial with others; where one or more joint tortfeasors are not amenable to suit (such as an immune defendant); and where the defendant claims that one or more others are at least partly responsible for the harm done and the plaintiff has chosen not to sue those others. The two intersecting problems arising with respect to this issue are how to get the absent joint tortfeasor into the case and how to instruct the jury. Those writing on this issue seem to agree on one point: a tortfeasor must be a party to the case before he can be on the verdict form. The law prior to Act 649 was that an alleged wrongdoer could not be on the verdict form if he or she was not also a party to the suit.2 The Eighth Circuit has now held that this construct of the law was revived by Johnson. Just putting an absent joint tortfeasor on the verdict form without making him or her a party is not a viable option.3 The typical tool used to bring the absent tortfeasor into the suit is to file a contribution complaint against that tortfeasor. It is appropriate, if contribution exists, to bring a tortfea20
The Arkansas Lawyer
sor in solely for purposes of a contribution action during the pendency of the underlying suit.4 The question is whether contribution is a cognizable claim by one defendant against another when joint and several liability does not exist. It is not. Section 1 of Act 649 eliminated joint and several liability except in circumstances rarely applicable, acting in concert as defined in the Act or acting as an “agent” or “servant.” The Joint Contribution Among Tortfeasors Act reads “the right of contribution exists among joint tortfeasors.”5 The converse must also be true: the right to contribution does not exist among separate tortfeasors. Some rebut this logic by noting that the Contribution statute refers to those who are liable “jointly or severally,” but that argument cannot hold. The phrase “joint and several liability” has a particular meaning. The common modern understanding is that “joint” means that multiple tortfeasors are liable for the entire harm to the plaintiff while “several” means that the same tortfeasors are liable for only a proportion of that harm, or proportionate several liability. That modern understanding could not be more incorrect. History helps clear the view. The common law had certain rigid rules. Multiple tortfeasors could not be joined in one action by a plaintiff even where their actions caused an indivisible
injury unless they were “acting in concert.”6 Those same tortfeasors had no right to contribution among one another.7 At the same time, a plaintiff could hold each of the many tortfeasors responsible for the entire damage whenever there was a single, indivisible harm, but any fault at all on the part of the plaintiff barred his claim altogether.8 With this background in mind, Professor Wright provides the following cogent summary of the common law with respect to the terms “joint” and “several.” Originally under the common law, the term “several liability” referred to the individual full liability of each tortfeasor for the entirety of the damages that were an actual and proximate result of her tortious conduct, whereas the terms “joint liability” and “joint tortfeasors” referred to the procedural permissibility of a plaintiff’s joining multiple tortfeasors together for suit in the same action. Initially in the United States, and still in England, only tortfeasors acting in concert could be joined together procedurally for suit in the same action. Independently acting tortfeasors who tortiously contributed to the same injury, who in England are called “concurrent tortfeasors” rather than “joint tortfeasors,” could not be joined in the same action.9 Thus, as one commentator has put it, “the ‘joint’ in joint and several liability referred only to a procedural device that allowed defendants to be joined in a single lawsuit when multiple tortfeasors acted in concert or when vicarious liability applied” whereas “each was still ‘severally’ (separately) liable for the entire injury.”10 Clearly, then, at common law each one of multiple torfeasors who combined to injure a plaintiff would be held liable for the entire harm. As early as 1691, the cases held that “where the defendants acted in concert, ‘the act of one was the act of all,’ and each was therefore liable for the entire loss sustained by the plaintiff, even though he might have caused only a part of it.”11 Within a short time thereafter, “the common law developed likewise a distinct and altogether unrelated principle: a defendant might be liable for the entire loss sustained by the plaintiff, even though his negligence concurred or combined with that of another to produce the result. Or, as the courts have put it, the defendant is liable for all consequences proximately caused by his
wrongful act.”12 This “several” liability for independent tortfeasors acting in concert is traced to 1771.13 So, what does this history lesson reveal? First, the argument that “several” means “separate” is just not correct. Several means liable for the entire harm. So the foundation of the argument is non-existent. Second, history reveals that contribution exists only with and because of joint and several liability. The Uniform Contribution Among Joint Tortfeasors Act14 did away with the inequity of not allowing contribution among joint tortfeasors and nothing else. The joinder rules in the Arkansas Rules of Civil Procedure allow joinder of parties whether or not they are acting in concert. It is incorrect to claim that anyone has some right to contribution without the concurrent existence of joint and several liability. Thus, a defendant filing a standard contribution action against an absent joint tortfeasor so that the absent party is no longer absent is not the answer. It wholly alters the meaning of the term “contribution.” With no joint and several liability, nothing exists to contribute because each tortfeasor’s “fault” is assessed separately.
C. Solving the Perplexing Problem. So what can be done short of the Arkansas Supreme Court overturning a series of cases that do not allow non-parties on verdict forms or making contribution mean something it does not mean? The tortfeasor who is sued and in the case as a defendant will claim that a jury cannot be adequately instructed to apportion fault if it isn’t allowed to apportion to all possible joint tortfeasors. The defendant will then circle back around and argue the same points disposed of above again, leaving the trial judge clutching her head in her hands complaining about that headache. The problem has a simple, straightforward solution. The following jury instruction alleviates the problem: Under Arkansas law, you may not allocate to [Defendant] any of the fault of any other person or entity, including [the individuals Defendant blames for some or all of the harm]. If you find in favor of the plaintiff and against [Defendant], you may only allocate to [Defendant], the degree of fault attributable to [Defendant’s] acts or omissions.15
Can it truly be said that when two tortfeasors run stop signs in opposite directions and both collide with the plaintiff’s car in the intersection and kill her that one killed 75 percent of the plaintiff while the other killed 25 percent? Of course not, but that is exactly what Act 649 requires juries to do. This instruction is designed to keep in place the abrogation of joint and several liability but tell the jury that it can allocate to that defendant only the degree of harm his fault caused. It respects Act 649’s abrogation of joint and several liability and at the same time maintains the integrity of the term “contribution” and Brooks continued on page 43
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Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
Negotiating Arkansas’s Law of Several Liability
by Joseph Falasco Life intersects art, sometimes. As a practicing lawyer, I have tried to employ rules, statutes, and laws in service of a defined and clientoriented goal. As a potter, I work to form a lump of clay into a functional piece of art. When the Arkansas General Assembly enacted the Civil Justice Reform Act in 2003, it provided a moist ball of clay. Tort reform is by nature controversial. We all knew that some of its provisions were going to be challenged—one way or another—in Arkansas’s courts. Regardless of how you feel about the Act, we can all agree that the General Assembly presented Arkansas lawyers with a new set of statutes to mold into a functional body of law. After some years of kneading by lawyers and the Arkansas Supreme Court, the Act as it exists today looks different than it did eight years ago. Yet, what remains of the Act must be further applied in a way so that it functions in a meaningful manner and does real work for all litigants. This writing provides background information on some lingering issues and suggests how the remaining clay can be put to good use by the legal potters–whether they be lawyers or judges. Through the Arkansas Civil Justice Reform Act, the Arkansas General Assembly eliminated joint-and-several liability and, subject to some minor exceptions, replaced it with several liability.1 In 2009, the Arkansas Supreme Court held in Johnson that the procedure created by the General Assembly for assessing non-party fault was unconstitutional.2 In the wake of Johnson, courts and lawyers have struggled to apply Arkansas’s law of several liability. What follows are some suggestions on how to negotiate Arkansas’s law of several liability within the confines of Johnson and the Arkansas Rules of Civil Procedure. A. Joint Tortfeasors Are Severally Liable In Arkansas. 22
The Arkansas Lawyer
The Arkansas Civil Justice Reform Act (“ACJRA”)3 changed the legal landscape for cases involving a personal injury, medical injury, property damage, or wrongful death. A central part of the ACJRA is the elimination of joint-and-several liability.4 Under the ACJRA, a defendant’s liability is several. As used by the General Assembly, this means that any judgment is calculated with reference to the particularized fault assessed by the fact finder to each separate defendant.5 B. A Brief Developmental History Of JointAnd-Several Liability In Arkansas. At their core, the doctrines of joint liability and several liability create the legal mechanism for attributing liability between plaintiffs,
defendants, and third parties. The historical trails of joint liability and several liability flow naturally from the doctrines of contributory negligence, comparative fault, and contribution. Conceptually, joint liability is the legal recognition that certain kinds of harm—like a wrongful death—cannot be divided; therefore, if Party A is a substantial contributing factor of the harm then Party A is liable for the entire harm, regardless of whether Party B, C, or D may have substantially contributed to the harm.6 In those cases of joint liability, Arkansas solved the inequities of holding one liable beyond its apportioned fault by creating a cause of action for contribution.7 The doctrine of contributory negligence provided a complete defense to an action in tort at common law.8 In 1955, Arkansas replaced contributory negligence with pure comparative fault.9 In 1957, Arkansas converted from pure comparative fault to a form of modified comparative fault.10 From 1957 through the enactment of the ACJRA the statutory language embodying Arkansas’s version of comparative fault changed slightly.11 These changes mattered. The Arkansas Supreme Court has interpreted the minor language changes in the statute as providing significant changes in the law of comparative fault. For example, in Nations Bank, N.A. v. Murray Guard, Inc., the Arkansas Supreme Court held that cases decided under the 1973 Act did not apply to cases decided under the 1975 Act.12 More specifically, under the 1973 Act, fault could be
Joseph Falasco is a member at Quattlebaum, Grooms, Tull & Burrow PLLC. His practice focuses on civil litigation and appeals.
compared “among all those responsible for the harm” but, under the 1975 Act, fault could only be compared with those from whom the plaintiffs sought to recover damages.13 With the ACJRA, the General Assembly moved from joint-and-several liability to several liability. The ACJRA makes two things clear: (1) a defendant is liable only for damages allocated to that defendant in direct proportion to that defendant’s percentage of fault; and (2) a plaintiff’s recovery is barred if a fact finder determines that the plaintiff’s fault is fifty percent or greater.14 Thus, while Arkansas still embraces modified comparative fault between a plaintiff and defendant, it also recognizes that a defendant’s liability is limited by the fault specifically apportioned to that defendant. C. Giving Substance To Several Liability The substance-versus-procedure debate surfaced in Johnson v. Rockwell Automation, Inc.15 There, the Arkansas Supreme Court ruled that the procedure provided in Ark. Code Ann. § 16-55-202(b) for assessing non-party fault was unconstitutional because it violated the doctrine of separation of powers.16 The Arkansas Supreme Court did not rule unconstitutional the General Assembly’s decision to replace joint-and-several liability with several liability. If several liability is to have substance, the fault of all those responsible for the harm must be considered. And, although the Arkansas Supreme Court held the procedure unconstitutional, § 202(b) makes undeniable that the General Assembly intended fact finders to assess non-party fault. The legislative branch endorsed the policy of giving to the jury the right to assess fault based on the
actions of all persons or entities, regardless of whether they were, or could have been, named in an action by a plaintiff.17 The point stressed here is that only the mechanism for assessing fault to all potential tortfeasors is missing in the light of Johnson. That an assessment of non-party fault can and should be done was not decided by Johnson. In McCoy v. Augusta Fiberglass Coatings, Inc.,18 the Eighth Circuit Court of Appeals questioned Arkansas’s law of several liability. In that case, the Eighth Circuit relied on Johnson and held that a jury is not allowed to assess fault to any non-party.19 McCoy was briefed by the parties before Johnson was decided but was handed down after Johnson. The Eighth Circuit did not have the benefit of briefing to address the sure and practical effect of Johnson. Moreover, the Eighth Circuit did not consider § 201(a) of the ACJRA—the substantive provision of Arkansas’s law on several liability. Relying on Belz-Burrows, L.P. v. Cameron Constr. Co.,20 the panel merely stated that, after Johnson, “the law reverts back to what it was prior to the passage of the Civil Justice Reform Act, under which the jury could not apportion the fault of non-parties.”21 In short, the analysis in McCoy falls short of establishing the law in Arkansas post-Johnson. A complete analysis requires Belz-Burrows to be put into context. That case was decided before the ACJRA was enacted, when Arkansas law provided that “a jury should not be permitted to assign a percentage of fault to a person who is not a party to the suit.”22 The Arkansas Court of Appeals explained that this rule derived “from Arkansas’s comparativefault statute, which provides that a plaintiff’s
Laws change. Just as it takes a potter to turn some mud into a useful mug, it takes lawyers to transform the stagnant words of rules, statutes, and cases into a valuable tool to effect the policies of the state of Arkansas as decided by the General Assembly. fault may be compared with the fault chargeable to ‘the party or parties from whom [he] seeks to recover damages.’ Ark. Code Ann. § 16-64-122 (emphasis added).”23 Indeed, before the ACJRA, the Arkansas Supreme Court narrowly construed Arkansas’s comparative fault statute24 as limiting the comparison of fault only between those parties from whom the plaintiff sought to recover damages; according to the Arkansas Supreme Court, a party with which a plaintiff settled was not a party from which the plaintiff sought damages.25 In 2003, the General Assembly changed the statutory language providing for assessment of fault to allow fault to be assessed to all potentially responsible persons or entities.26 It follows that the statutory basis for denying a jury the opportunity to assess fault to all responsible persons or entities—the language in Ark. Code Ann. § 16-64-122-—no longer exists. The ACJRA has changed that law in sections
Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
that are presumed constitutional. Those provisions allow a fact finder to apportion fault to all potentially responsible persons or entities. While the Eighth Circuit’s decision in McCoy properly ruled that the law reverts back to what it was prior to the passage of Ark. Code Ann. § 16-55-202, the Eighth Circuit was not asked to consider that, even without § 202, Arkansas follows the law of several liability. D. Procedures And Rules Forcing The Assessment Of Fault Of All Those Responsible. Johnson held that the procedure in § 202 was unconstitutional because it conflicted with the Arkansas Supreme Court’s rule making authority. Today, trial courts and lawyers should look first to the Arkansas Rules of Civil Procedure to fill the procedural void. 1. Rule 19 Rule 19 of the Arkansas Rules of Civil Procedure speaks to necessary and indispensable parties: (a) Persons to Be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties . . . .
The Arkansas Lawyer
(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.27 Section 19(a) addresses the issue of “necessary” parties while section 19(b) deals with whether a necessary party is an “indispensable” party.28 The provisions of Rule 19(a), which are the same as its federal counterpart, are mandatory.29 Under Arkansas or Federal Rule 19, one mechanism for ensuring that fault is appor-
tioned among all those responsible is to hold that all potential tortfeasors are necessary and indispensable parties.30 For example, in Leick v. Schnellpressenfabrik AG Heidelberg,31 the district court was confronted with a similar issue where a plaintiff failed to name a potentially responsible party under the Iowa Comparative Fault Act, which limited fault attribution to parties in the action. The district court explained that, because a jury could not assess fault of a non-party, the named parties may be assessed fault for which they were not responsible.32 Accordingly, absence of potential tortfeasors would prejudice the named defendants because they could be allocated fault for which they were not responsible.33 2. Third Party Practice—Rule 14 Rule 14(a) of the Arkansas Rules of Civil Procedure provides the mechanism for a defendant to sue a third party. It says: At any time after commencement of the action a defending party, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be Falasco continued on page 44
Lawyer Community Legacy Award Jim Crouch has devoted much of his time volunteering in pro bono cases over almost the past three decades. In addition to having a high success rate with the cases referred to him by the Washington County Bar Association’s Equal Access to Justice Panel, Jim works with the Arkansas Volunteer Lawyers for the Elderly. He works with nursing James E. Crouch home residents and is willing to represent them, even when their cases may be a challenge. He helps the infirm, the elderly and the terminally ill as well as his usual pro bono work. “In addition to his many volunteer activities, Jim is also a heck of a nice guy who never toots his own horn and who is very deserving of recognition by this organization,” said his nominator. Jim also volunteers a great deal in his community. He is chairman of the Board of the Springdale Public Facilities Board and serves on the Board of Directors of Ronald McDonald House Charities of Arkoma. He has served as President of the Arts Center of the Ozarks, the Springdale Chamber of Commerce and the Springdale Rotary Club. Jim also served as Chairman of the Single Parent Scholarship Fund of Washington County and he has been on the Boards of Directors of the Springdale Memorial Hospital and the United Way of Springdale. Jim is a partner in the law firm started by his father, which is now known as Cypert, Crouch, Clark and Harwell, PLLC. He has served on the Arkansas Bar Association House of Delegates, on the Board of the Arkansas Bar Foundation, and as Co-Chairperson of the Arkansas Bar Commission on Diversity. He has served on various bar sections and committees, including chairing the Business Law Section. He has served for years on the Third District Trial Practice Seminar Committee. He is a member of the American Bar Association and a graduate of the National Institute of Trial Advocacy. He holds membership in the National Association of Railroad Trial Counsel. Jim has been married to Cathy (formerly Monroe) for 38 years, and they have raised four children, Matthew, Elizabeth, John and Mary Catherine. Jim is active in the St. Raphael Catholic Church, serving as past chair of the Parish Council and past chair of the Stewardship Committee and he has taught religious education classes and worked with the youth. Jim graduated from Springdale High School in 1970 and earned a Bachelor of Arts Degree in Business and Economics from Hendrix College in 1974. He earned his Juris Doctorate degree from the University of Arkansas School of Law Fayetteville in 1977 and served as Associate Editor of the Arkansas Law Review.
Ruthanne Murphy, a lawyer and registered nurse, spends a great deal of her time and energy helping feed and house the homeless. “The amazing thing about Ruthanne is her ability to round up volunteers who will happily give of their money, their time, their talents, their sweat, their clothes, their food, and pretty much anything else that RuthRuthanne Murphy anne asks of them,” said her nominator. “She does not look for accolades–she simply has a spirit of giving and of helping, and expects the same of her friends.” Ruthanne fell in love with being a caretaker at the age of 14 when she became a volunteer at the small hospital in her hometown of Greensburg, Kansas. She is a graduate of Wesley School of Nursing, College of St. Francis, and the UALR William H. Bowen School of Law. Ruthanne has always had a strong love of the mission work done by her church family, St. James United Methodist Church. On May 4, 2007, the small town of Greensburg was wiped off the face of the Kansas prairie by an EF 5 tornado. Ruthanne and husband Jim have made countless trips to this little town to help clean up and rebuild. Watching the entire country pour love and money into this little community was overwhelming. Jim and Ruthanne felt it was imperative that they do something to give back to their community in Little Rock. Twice a month, Ruthanne and Jim lead a group of volunteers from their church to feed close to 100 hungry people under the Broadway Bridge. Soon they decided it wasn’t enough, and began working with a charity called “A Family Called Us.” Ruthanne is on their Board of Directors. Most recently through the warming shelter this last winter, a group of friends joined together to form “Rock of Hope” which is a group buying up run down houses and rehabilitating them. Four homeless people are placed in these houses, helped to find employment and may stay there for up to 18 months to help them put their lives back on track. They are taught interviewing skills, money management, and supported on their individual road to strength and recovery by their “Champion.” Ruthanne also sits on the Board of Rock of Hope, the Boards of Trustees and Missions for her church, and the Board of Governors for the Arkansas Trial Lawyers. Ruthanne practices law with Darryl Baker and Gerry Schulze. Husband Jim Garrett retired and now has a full time job overseeing the revision of the “Rock of Hope” houses. Ruthanne’s daughters Sarah and Rachel Murphy are active members of these mission works along with their mother. The Murphy-Garretts also have a son in Houston and a daughter in Topeka, Kansas, as well as three beautiful grandchildren.
Awards are presented bi-annually by the Association to attorneys and judges who have performed volunteer public services out of a sense of duty, professionalism, and a genuine desire to give back to the community. Recipients are selected by the Public Information/Findalawyer Committee after considering the nominations received by the deadline. Any person may nominate a lawyer or judge by completing the Nomination Form and turning the Form into the Arkansas Bar Association office on or before the nomination deadline. Nomination deadlines are January 31st and July 31st of each year. Nomination forms and guidelines for the award are available at www.arkbar.com or by contacting the Association. Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
Report from the 2011 National Conference of Commissioners on Uniform State Laws
by Lynn Foster Every summer the Uniform Law Commission (“ULC”) meets for approximately one week to consider and adopt uniform laws.1 In July 2011, the ULC conducted its 120th Annual Meeting. Phil Carroll, Vince Henderson, John Stroud, Elisa White and I represented Arkansas at the Conference. Five proposed uniform or model laws were considered for adoption by the commissioners, and five were adopted. Once adopted, the uniform and model laws are available for states to enact as they wish. It is typically the duty of state commissioners to work for the enactment of laws they deem desirable and practicable for their states. This brief article will summarize those adopted uniform and model laws. Uniform Certificate of Title Act for Vessels. Sixteen states, including Arkansas, do not title vessels. Thirty-three states require certificates of title for some vessels (and Mississippi makes certification optional), but the laws vary greatly from state to state. This act would harmonize titling requirements and will qualify as a state titling law that the Coast Guard will approve. Creating a titling system for vessels under this law facilitates transfer of ownership, deters and impedes the theft of vessels, facilitates financing of vessels, and provides consumer protection for those who purchase vessels through the Act’s “branding” initiative. Few states currently brand the title of vessels, enabling vessels with hidden hull damage to be resold after cosmetic repairs without any disclosure of the damage. This problem can be quite significant after a major hurricane or similar casualty. The model brand will allow consumers, insurers, and lenders to receive valuable information, which in turn will prompt further investigation, ensure that necessary repairs are made, and aid in boating safety.2 Harmonized Uniform Business Organization Code (“UBOC”). The ULC has adopted eight uniform laws regulating business organizations: the Model Registered Agents Act; the Harmonized Model Entity Transactions Act; the Uniform Limited Liability Company Act; the Uniform Limited Partnership Act; the Harmonized Uniform Partnership Act; the Uniform Statutory Trust Entity Act; the Uniform Limited Cooperative Association Act; and the Uniform Unincorporated Nonprofit Association Act. The ULC determined that the acts could be improved by harmonizing their wording and integrating them all into a single code of business entity laws. UBOC would be the “hub” statute, with the eight acts being the “spokes.” In 2011, the ULC adopted UBOC.3 Of the eight “spokes,” Arkansas has enacted the Model Registered Agents Act (Ark. Code Ann. §§ 4-20-101 through 4-20-118), the Uniform Limited Partnership Act (Ark. Code Ann. §§ 4-47-101 through 4-47-1302) the un26
The Arkansas Lawyer
harmonized Uniform Partnership Act (Ark. Code Ann. §§ 4-46-101 through 4-46-1207), and the Revised Uniform Unincorporated Nonprofit Association Act (Ark. Code Ann. §§ 4-28-601 to 4-28636) (this latter replaces the Uniform Unincorporated Nonprofit Association Act, currently in force, as of January 1, 2012). Uniform Electronic Legal Material Act (“UELMA”). This act is designed to solve issues caused by the increasing publication of laws in electronic form only. The act requires that official electronic legal material be 1) authenticated, by providing a method to determine that it is unaltered, 2) preserved, either in electronic or print form, and 3) accessible, for use by the public on a permanent basis. The act does not mandate any one method of compliance with these three requirements; instead, it is outcome based and technology neutral, so that states have maximum flexibility as technology standards continue to evolve. The Arkansas appellate courts no longer publish official paper versions of their opinions, and they have been in the process of developing an authenticated, accessible and lasting version of appellate opinions for some time.4 The Arkansas Code Annotated is still published officially in paper form. Arkansas’s administrative law is published partially in paper and partially electronically. If Arkansas were to adopt this uniform law, those agencies that publish only in electronic form would have to guarantee the authenticity of their online information and make sure it is preserved, as new versions are adopted. Model Protection of Charitable Assets Act (“MPCAA”). This act is intended to articulate and confirm (not limit) the role of state attorneys general with respect to charitable assets, an area of common law that is sketchy in many states. It requires registration and reporting of charitable assets by holders of such assets, in order to provide the Attorney General with an inventory of basic information without overburdening either the charities or the Attorney General. The act covers all charities, including religious organizations, and trusts. The threshold amount of charitable assets that triggers the act is $50,000. Since this is a model act, the ULC recognizes that states may not adopt the registration and reporting provisions, may exclude some or all religious organizations, and may exclude organizations
Lynn Foster is the Arkansas Bar Foundation Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law. She currently serves on the Arkansas Bar Association Uniform Laws Committee.
that have as their primary activity advocacy on issues of public or governmental policy. Amendments to Uniform Debt-Management Services Act (“UDMSA”). In October 2010, the Federal Trade Commission amended its Telemarketing Sales Rule to regulate debt-management services. Several of the provisions of the amended Rule are inconsistent with the UDMSA. To avoid inconsistency, amendments concerning the timing of fee collection and the use of powers of attorney were adopted. Other changes include clarification of disclosure and reporting requirements and removal of the option to restrict the business of debt management to non-profit entities. The original UDMSA was originally adopted by the ULC in 2005. Arkansas has not enacted it. The ULC legislative process takes years. First, a study committee is typically appointed, which submits a report to the Executive Committee as to whether a drafting committee should be appointed. Second, if the Executive Committee approves, a drafting committee is appointed. These committees meet several times a year and submit their drafts to the “committee of the whole” at the annual meetings. After several years of suggestions from the floor, the final product is voted on, state by state. Current proposed laws “in the pipeline,” or in drafting committees, are the Asset Freezing Orders Act, the Deployed Parents Visitation and Custody Act, the Hague Convention on Protection of Children implementation legislation, the International Choice of Court Agreements Act, the Manufactured Housing Act, the Powers of Appointment Act, the Premarital and Marital Agreements Act, the Prevention of and Remedies for Human Trafficking Act, and the newest drafting committee being formed now, the Revised Residential Landlord and Tenant Act. More information about the ULC, including the text of its laws and committee drafts, can be found at its website, www.nccusl.org. The author is one of Arkansas’s uniform law commissioners, along with Phillip Carroll, John Stroud, Elisa White and Vince Henderson. She thanks Elisa White for her comments on the draft of this article. Endnotes 1. For more on the Uniform Law Commission, Arkansas commissioners and uniform laws currently in force in Arkansas, see Lynn Foster, Uniform Laws, Legislation and the Arkansas Bar Association: A History and Report, Ark. Law., Winter 2011, at 10. 2. National Conference of Commissioners on Uniform State Law, Draft for Approval, Uniform Certificate of Title Act for Vessels, prefatory note, http://www.law.upenn.edu/bll/archives/ulc/ cotab/2011am_draft.htm. 3. For the text of UBOCA as adopted in 2011, see http:// www.uniformlaws.org/Shared/Docs/AM2011_Prestyle%20Finals/ HUBOC_PreStyleFinal_Jul11.pdf. 4. For an article on the history of electronic publishing of Arkansas case law, see Peter W. Martin, Abandoning Law Reports for Official Digital Case Law (2011), at http://scholarship.law.cornell. edu/cgi/viewcontent.cgi?article=1088&context=clsops_papers&seiredir=1#search=%22arkansas%20judiciary%20electronic%20publication%20decisions%22. Arkansas is at the forefront of states in this area. n
Legislative Timetable for the 2013 Legislative Session Members of the Association are encouraged to submit proposals for new laws or amendments to existing laws especially in their practice area where they are more likely to recognize the need for changes or additions. To get a proposed bill made a part of the Bar Association’s Legislative Package and thereby be sponsored by the Association and have the full support of the Legislation Committee and its lobbyist, deadlines have been established by the Association’s governing body. January 30, 2012 Initial deadline for submission of legislation to the Jurisprudence & Law Reform Committee. April 2012 Board of Governors considers the report of the Jurisprudence & Law Reform Committee and makes recommendation to the House of Delegates. June 2012 House of Delegates acts upon recommendation. Up to 10 bills selected for Association sponsorship. June - September 2012 Jurisprudence & Law Reform Committee and Legislation Committee modify package in accordance with directions from House of Delegates.
The Association encourages legislative proposals. For more information or to submit proposals, contact the Arkansas Bar Association office at (501) 375-4606 or (800) 609-5668. Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
Arkansas Supreme Court Historical Society
Sterling Robertson Cockrill: The Youngest Chief Justice, Part 2 By Michael B. Dougan [This is the second part of an article on Chief Justice Cockrill. Part 1 appeared in the Summer 2011 issue of the The Arkansas Lawyer.]
“The technical forms of actions no longer obtain,” a frustrated chief justice reminded lawyers and judges in Bentonville Rail Road v. Baker, 45 Ark. 252 (1885). This was not the first time he had made that point. In Hawes v. Robinson, 44 Ark. 308 (1884), in an appeal from a Justice of the Peace court over ownership of one sow, six pigs, and two shoats, Cockrill rejected an appeal that would make “practice in replevin under the Code… more technical than the practice in replevin at common law. This cannot be.” A year later he got more emphatic. What Republicans during the Reconstruction had attempted, Cockrill consummated. The reign of the common law in all its purity and complexity was over. From the start Cockrill was at odds with John R. Eakin, the state’s venerable equity man. Eakin’s last hurrah came in Maddox v. Neal, 45 Ark. 121 (1885), doubtless the most significant education case of the nineteenth century. A Crawford County school district with 104 white children and 40 blacks had provided whites with a three-month term but done nothing for the black children. Black parents sought a writ of mandamus to compel the board to open the black school, and Cockrill, in the strong language agreed: “No duty is imposed upon, or discretion given to the directors about schools for one race that is not applicable to the other. It is the clear intention of the constitution and statutes alike, to place the means of education within the reach of every youth.” Eakin dissented, accepting the school board’s 28
The Arkansas Lawyer
argument that since there was so little money and more white than black children, the whites should come first. “The greatest good to the greatest number is all that can be hoped,” Eakin concluded. In addition, he objected to the use of the writ of mandamus, arguing first that it was the wrong remedy and that “it is better that the old principles should be maintained,” and second that a statutory remedy existed. Cockrill and Eakin were still at odds long after Eakin’s death. In Catlett v. Railroad Company, 57 Ark. 461, 21 S.W. 1062 (1893), Cockrill, in one of his last opinions, exhumed Eakin’s differing views on evidence, concluding: “We take it, therefore, that ‘any evidence however slight’ as used by him, does not mean a scintilla merely.” Cockrill’s allies for modernization included two justices who died young: William W. Smith, whose opinions Cockrill eulogized as “models of pithy brevity,” and Monti Hines Sandels, the former federal District Attorney for the Western District of Arkansas. In remembering Sandels, Cockrill cited Apel v. Kelsey, 52 Ark. 341, 12 S.W. 703 (1889), where Sandels observed: “When we see, day after day, the inheritance of infants squandered by the dishonesty or frittered away by the incompetency of administrators, and see these actions irrevocably legitimated by the approval of facile courts, we submit that it is time to call a halt. The courts are now powerless.” Like Cockrill, who avoided judicial law-making, Sandels wanted the legislature to intervene to keep from sending “dependent widows to the workhouse.” Wrong-headed judicial restraint surfaced over the issue of religious freedom. A state law intended to stop saloons from being open on Sunday was turned into an entire ban without any exemptions for persons believing that the Sabbath fell on Saturday. In State v. Scales, 47 Ark. 476, 1 S.W. 769 (1886), Cockrill blithely ignored religious-freedom issues in upholding a law used mainly against Seventh-Day Adventists. Uriah M. Rose wrote an eloquent protest and Colonel Robert H. “Bob” Crockett fought for repeal in the legislature. The number of justices increased to five in 1888. William E. Hemingway and Simon P. Hughes, the former governor, were first
and William W. Mansfield later replaced Sandels. Per curiam opinions became common but the work load grew more rapidly, and as many as thirty cases in some terms went unreported. Cockrill wrote decisions in many of the railroad cases, upholding the fellow-servant rule that greatly limited an injured person’s ability to sue a corporation, but also respected the powers of the Justice of the Peace courts even when their record-keeping lacked full technical perfection. He upheld the right of the state to tax railroads at special rates, and in Davis v. Railway, 53 Ark. 117, 13 S.W. 801 (1890), he sustained Arkansas’s version of Lord Campbell’s Act. Liquor cases fell his way, so that we get judicial notice of “boozy” in Musick v. State, 51 Ark. 165, 10 S.W. 125 (1888), and of judicial restraint in Macowitz v. State, 49 Ark. 170, 4 S.W. 656 (1887): “It was not the province of the court to declare as a matter of law that a pint of whisky was not a quantity within reason for a youth to have.” The closest to a major political issue came in Jones v. Glidewell, 53 Ark. 161, 13 S.W. 723 (1890), where Cockrill upheld the right to fair elections: “It is a serious thing to cast out the votes of innocent electors for acts done by others, and it is the province of the courts to see that every legal vote cast is counted when the possibility exists.” A new judicial age had dawned, but Cockrill’s early retirement and premature death has kept him from receiving proper attention. Michael B. Dougan is a Distinguished Professor Emeritus in History at Arkansas State University and is widely renowned as one of the foremost authorities on Arkansas history. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society, Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201; Email: rod.miller@ arkansas.gov; Phone: 501-682-6879.
CLE CLE CLE CLECLE CLE CLE
Arkansas Bar Association 2012
Mid Year Meeting January 26-27, 2012 Peabody Hotel Memphis
January 26-27th Mid-Year Meeting/CNA Memphis, TN
Construction Industry Conference Little Rock
Natural Resources Law Conference Hot Springs
Northwest Arkansas Conference Rogers
ADR Conference Little Rock
Bankruptcy Trial Skills Workshop Little Rock
Bankruptcy Seminar Little Rock
Environmental Law Conference Eureka Springs
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Appeal (Supersedeas) Bonds by Cindi Thessing, CIC An Appeal Bond is posted to the court by the losing party in a court case to guarantee that, if the appeal is unsuccessful, funds to pay the original judgment will be available at the conclusion of the appellate process; therefore, the bond supersedes the judgment until the appeal process has concluded. To obtain an Appeal Bond, the surety markets generally require 100% collateral. This collateral may be in the form of cash or cash equivalents, such as an Irrevocable Letter of Credit provided by a lending institution approved by the surety company. In most instances, the bond limit will be higher than the judgment to include court cost, attorney fees and interest and to deter filing of frivolous appeals. Because the court will only allow a short time to post the bond, it is extremely important to contact a reliable surety representative as soon as possible. Quick response is needed in order for the surety to review the financial position of the applicant. It is important to remember that these bonds are not underwritten in regards to the merits of the case, rather only on the financial strength of the party requesting the bond. The surety submission would include business and personal financial statements and the surety would also require the party purchasing the bond to sign an Indemnity Agreement in favor of the surety. The Indemnity Agreement allows the surety to be indemnified in case of default by the purchaser of the bond. For larger appeal bonds, it may be important to look to a surety mar-
ket that can take the cash collateral funds and post them in an interest bearing account. This type of account would serve two purposes: 1) It would be used to pay the judgment if appeal is lost and 2) It would give the party posting the collateral some return on the set aside money. The cost for an Appeal Bond is usually between Â˝ to 2% of the bond limit and the premium must be paid annually until the court releases the bond obligation. Regions Insurance is staffed with experienced bond underwriters in its dedicated Surety Bond Department. Regions Insurance also represents nine of the top 10 surety markets as listed by The Surety & Fidelity Association of America and has been successful in writing Appeal Bonds up to $25 million and for as little as $5,000. If you have any questions about Appeal Bonds, Regions Insurance possesses the expertise and resources to assist you. Cindi Thessing is a Certified Insurance Counselor and Bond Underwriter for Regions Insurance with over 34 years insurance experience. For more information on Bonding please contact: Cindi Thessing at (501) 660-7149; email@example.com. Go to www.arkbar.com for more on member benefits from Regions, including Cyber Liability & Medical Insurance. Bond options for members include probate bonds, judicial/litigant court bonds and notary bonds.
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Attorney Disciplinary Actions Final actions from July 1, 2011, through September 30, 2011, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct. Full text documents are available on-line at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Attorney” link on the home page. [The “Model” Rules of Professional Conduct are prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] SURRENDER: BENJAMIN THOMAS DONATHAN, Bar No. 2008167, of Russellville, Arkansas, petitioned to surrender his Arkansas law license, which was accepted and ordered by the Supreme Court on September 15, 2011, see 2011 Ark. 366, in lieu of probable disbarment proceedings arising out of several felony forgery charges against him pending in Johnson County Circuit Court. DAVID BRUCE HAWKINS, Bar No. 2001182, of Russellville, Arkansas, petitioned to surrender his Arkansas law license, which was accepted and ordered by the Supreme Court on September 8, 2011, see 2011 Ark. 341, in lieu of probable disbarment proceedings arising out of conversion of client funds entrusted to him. KEVIN HAROLD LEWIS, Bar No. 93019, of Little Rock, Arkansas, petitioned to surrender his Arkansas law license, which was accepted and ordered by the Supreme Court on September 15, 2011, see 2011 Ark. 340, in lieu of facing disciplinary proceedings for serious misconduct arising out of felony criminal charges against him pending in the United States District Court for the Eastern District of Arkansas involving fraud causing the loss of many millions of dollars, to which charge he has entered a guilty plea. ROBERT RAGON WHITE, Bar No. 72111, of Fayetteville, Arkansas, petitioned to surrender his Arkansas law license, which was accepted and ordered by the Supreme Court on July 27, 2011, see 2011 Ark. 301, in lieu of facing disciplinary proceedings for serious misconduct arising out of a long-time shortage of funds belonging to a family member’s estate for which he was the attorney. The funds were repaid once the grievance was filed. SUSPENSION SCOTT DOUGLAS FLETCHER, Bar No. 91236, of Little Rock, Arkansas, was suspended
for sixty (60) months and fined $10,000.00 by Committee Hearing Findings & Order filed September 29, 2011, on a Complaint filed by Sam Perroni, Esq., in Case No. 2010-028, for violations of Rules 1.1, 1.2(d), 1.4(b), 1.15(b), 4.1(a), and 8.4(c), which the panel found to constitute “serious misconduct.” At submission time, no notice of appeal has been filed. Mr. Fletcher worked at Jewell, Moser, Fletcher & Holleman (JMFH), from 1991 until he left about August 1, 2002. Mildred Buck of Saline County, an elderly widow with no children, died in April 2001. Her god-daughter, Jewell Rapier, knew Fletcher through her work at a dental office. Rapier and Fletcher worked together in 2000 to provide Ms. Buck with a variety of estate planning services. After Ms. Buck died, Rapier exercised complete legal control over the Buck Estate, the Buck Trust, and the Buck limited partnership (Buck LP), of which the Buck Trust was the sole limited partner and owned 99% of the ownership units. Fletcher was Rapier’s sole legal adviser
in her various fiduciary capacities until March 2003. The Buck LP owned over 1,000 acres of rural land in Saline County. Ms. Rapier was the sole general partner of the Buck LP. In March 2001, Ms. Rapier engaged Travis Yingling who appraised a certain 561 acre tract at $500 per acre. In April 2002, Roger Parker appraised the 561 acres at $1,450 per acre for Mr. Ives. In January 2003, Dwight Pattison appraised the 561 acre tract at $1,500 per acre for the Maertens plaintiffs. The Buck Trust beneficiaries were not informed of Rapier’s acts as Trustee and for the Buck LP until late 2002. From December 2001 through August 2002, relying on legal advice from Fletcher, acting in her fiduciary capacities Ms. Rapier sold Buck Trust or Buck LP lands to (1) herself and her husband, and to a retirement trust they controlled, (2) to her brother, and (3) to friends and neighboring landowners. The Rapiers purchased about 216 acres. Ms. Rapier sold the Buck LP 561 acre tract to Ives & Associates (Ives) through a “strawman” entity,
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Business Valuation Economic Damages Litigation Support 201 S. Chester Little Rock, AR 72201 501-372-4180 Fax 501-372-1165 email@example.com www.johnsonsmithcpas.net Maumelle Properties, Inc. (“MPI”), controlled by JMFH. Acting on advice from Fletcher and JMFH, Rapier first sold the 561 acres to MPI for $280,650, the Yingling $500 per acre appraised value, and MPI then promptly resold the same land to Ives for the initially agreed $350,000. The $65,716 “net” seller’s proceeds from the MPI to Ives closing in April 2002, that belonged to the Buck LP, were unaccounted for to anyone but Rapier and Fletcher until late July 2003, when Keith Moser, a former member of JMFH, provided the information on the distribution of the funds. Neither Rapier or Fletcher disclosed to the Buck Trust beneficiaries, as major Buck LP participants, that $31,878.94 had been disbursed on May
14, 2002, from the JMFH client trust account to Jewell Rapier by a JMFH trust check signed by Scott Fletcher, and on the same day $32,832.73 was disbursed by trust check signed by Scott Fletcher to JMFH as “earned fees” in payment of the May 14, 2002, JMFH billing to the “strawman,” MPI, in connection with the land sale to Ives. Mr. Fletcher left the JMFH firm by August 1, 2002, and the other principal lawyers left soon thereafter, dissolving JMFH. Mr. Maertens, for the Buck Trust, filed a civil suit against Ms. Rapier in October 2002, asking for an inventory and accounting by her of the Buck Trust and the Buck LP. Fletcher then arranged for Steve Curry to represent Jewell Rapier, individually and as Buck Trustee. Fletcher continued to represent the Buck LP and Rapier as general partner of the Buck LP. In early November 2002, Fletcher filed an Answer for the Buck LP, but did not make any accounting, or mention the status of the $65,716. On November 3, 2002, Fletcher wrote Curry that Keith Moser had recently informed Fletcher that the $65,716 was “credited in the JMFH client trust account still and that he [Moser] will testify as the corporate designee of Maumelle Properties, Inc. I guess the $65,716.67 can be moved from the JMFH client trust account ASAP, if necessary.” Fletcher never mentioned that he signed the two JMFH trust checks on May 14, 2002, that disbursed $64,716 of the Buck LP funds. Fletcher later stated he knew this information was false at the time of his letter to Curry. On November 12, 2002, Keith Moser was deposed in the suit, and stated the Ives closing $65,716 was deposited into our trust account, those funds are still in our trust account, and those funds belong to the Buck LP. Moser stated that Fletcher handled all this, Rapier was Fletcher’s client, the proceeds of the MPI-Ives sale were still in Moser’s trust account, and had not been distributed to the Buck LP because Moser was waiting for a Buck federal estate tax “closing letter.” In February 2003, the plaintiffs filed
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an Amended Complaint, suing Ives, MPI, and Moser, stating the $65,716 difference in the Buck-MPI-Ives sales was held by Moser in his trust account and the funds should be delivered to the Buck Trust. Fletcher filed the Answer for Buck LP, denying that the approximately $65,000 was being held by Moser. In July 2003, Don Spears, now Jewell Rapier’s sole counsel, wrote Moser and Fletcher, asking for the Buck LP money from whoever had it. An exchange of letters among Spears, Moser, and Fletcher followed, but Fletcher did not disclose to Spears that Fletcher personally had disbursed $64,716 by the two JMFH trust checks in May 2002. In August 2003, Keith Moser interplead into Court $33,832.73 he stated was from his Moser trust account and belonged to Buck LP. By July 2003, negotiations with Jewell Rapier resulted in an agreement where she made certain admissions and agreed to possible future entry of a judgment of almost $1,000,000 against her for her conduct in the Buck matters. Rapier agreed to sue Fletcher for legal malpractice in connection with his earlier representation of her in her various Buck fiduciary capacities. In her suit against Fletcher, Rapier admitted that she had committed breaches of her fiduciary duties, relying upon legal advice she received from Fletcher. On July 21, 2004, Fletcher was deposed, and said the $65,716 was deposited into the JMFH trust account and a trust check of about $34,000 went to JMFH for legal fees and costs, on the firm’s statement to MPI. This was the first disclosure by Fletcher as to what happened to the Buck LP $65,716.67. Fletcher admitted that in his handwritten letter of November 3, 2002, to [Steve] Curry, he knowingly told Curry a falsehood about the statement Fletcher attributed to Moser about the $65,000 still being in the firm trust account. Fletcher explained his false statement by saying this was his way of “signaling” Curry that Curry should not accept Fletcher’s knowing false statement about the whereabouts of the Buck LP funds.
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Attorney Disciplinary Actions Rapier’s suit was settled in September 2004, in a confidential agreement within Fletcher’s $1,000,000 policy limit, and without Fletcher admitting any wrong-doing. Mr. Fletcher responded that he provided competent counsel to Jewell Rapier; the sales by Rapier as general partner of Buck, LP were authorized by the partnership agreement and the law; no property was purchased below fair market value, based on the Yingling appraisal; there was no reason for either Rapier or Fletcher to believe that the Yingling appraisal was not valid; the Buck LP 561 acres was sold to Ives for above the Yingling appraisal amount; Fletcher approved of the use of the “straw man” transaction based on Moser’s advice; Ms. Rapier earned the “fee” funds she received, as did JMFH, and Rapier authorized payment of all these fees. Fletcher stated that at no time did he know MPI to be a client of JMFH, and he did not give Spears any false information in July 2003, because Rapier was Spears’ client and she knew about the $64,000 at the time. NEWTON DONALD JENKINS, JR., Bar No. 94231, of Van Buren, Arkansas, was suspended for 24 months and fined $5,000.00, by Committee Hearing Findings & Order filed September 8, 2011, on a Complaint filed by Brian Foster in Case No. 2010-054, for violations of Rules 1.1, 1.3, 1.7(a), 3.4(b), 4.4(a), 8.4(c), and 8.4(d), and that Mr. Jenkins engaged in “serious misconduct.” Jenkins has filed a notice of appeal, but his motion for a stay pending appeal has been denied. Brian Foster, a friend, managed the dental practice of Dr. Conine while she was unavailable in part of 2005. A dispute arose and Conine sued Foster in Pulaski Circuit Court in 2006. Foster answered pro se. Conine filed an Amended Complaint. In October 2006, Foster paid a fee and employed Donald Jenkins, an acquaintance from having lived in Jonesboro. Jenkins claimed that in November 2006 he mailed for filing his Entry of Appearance for Foster and a First Amended Answer and Counter-Claim. There is no documentary evidence presented showing these pleadings were received or filed in Pulaski County. At a hearing on January 4, 2007, Foster and Jenkins did not appear and defend, and judgment was granted to Dr. Conine for over $45,000 against Foster. In early April
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2007, Foster first learned of the judgment and contacted Jenkins, asking what had happened. Dr. Conine actively pursued collection of the judgment against Foster. In late April 2007, Jenkins filed a motion to set aside the Conine judgment, basically admitting he dropped the
ball legally for his client Foster in the matter. At a hearing on August 14, 2007, Jenkins stated to the Court that the pleadings his office sent in November 2006 to the Pulaski County Circuit Clerk for filing were never received back in his office, indicating any non-delivery. Foster’s
Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
Attorney Disciplinary Actions
Motion to Set Aside Judgment was denied. Dr. Conine continued her active collection efforts, using attorney Paul Herrod. Foster employed Little Rock attorney Robert Cortinez II to negotiate with Herrod and Conine on relief from her judgment. In September 2008, Cortinez wrote Jenkins and put Jenkins on notice that Foster was asserting a claim for legal malpractice against Jenkins arising out of the Conine judgment against Foster. Jenkins responded in a letter a week later that Foster was an old friend, Jenkins had no insurance or assets to address Foster’s negligence claim, and Jenkins offered to do a pro bono bankruptcy for Foster to discharge the Conine judgment debt, which was Foster’s only substantial debt. Foster’s efforts through Cortinez to negotiate a settlement with Conine were not successful. On December 12, 2008, Jenkins
filed a Chapter 7 petition for Foster in Fort Smith, but Jenkins failed to list the claim Foster had earlier asserted against Jenkins for potential malpractice arising out of the 2007 Conine judgment against Foster. In early 2009, Dr. Conine, using attorney Charles Embry, sought to protect her judgment from dischargeability by Foster in bankruptcy. After learning of Jenkins’ failure to list the malpractice claim that had been asserted by Cortinez for Foster against Jenkins, and for other reasons, Embry filed an “adversary proceeding” (“AP”), No. 09-ap-07076, in bankruptcy court in May 2009 to determine dischargeability of Foster’s debt to Conine, based on claims of fraud and other issues. Jenkins answered in the “AP” case for Foster on May 28, 2009, stating “Debtor denies he has a claim against his attorney [Jenkins].” The Court ordered Foster to file new and
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corrected schedules and other reports. Late on July 23, 2009, Jenkins filed additional schedules for Foster, which again did not disclose the Foster malpractice claim asserted against Jenkins. On July 24, 2009, at a “341(a)” first meeting of his creditors, Foster was careful in his response to the Trustee about Foster’s possible malpractice claim against Jenkins, and Jenkins specifically denied that such a malpractice claim existed. On July 24, 2009, starting at about 4:27 p.m., Jenkins faxed Embry eighteen (18) pages of materials in the Foster “AP” case. Jenkins later described these materials faxed on July 24, 2009, as Foster’s responses to Requests for Admissions Embry had earlier propounded to Foster. The materials Jenkins actually faxed to Embry on July 24, 2009, were Foster’s responses to Interrogatories and Requests for Production of Documents, and not Foster’s responses to Requests for Admissions from Embry/Conine. The issues about what documents were actually sent by Jenkins to Embry became the subject of a “show cause” proceeding in bankruptcy court that led to a one year practice suspension order against Jenkins being issued by that Court on September 12, 2011. Jenkins has filed a notice of appeal, but his motion for stay pending his bankruptcy suspension appeal has been denied. In mid-August 2009, Embry filed a motion to disqualify Jenkins as Foster’s counsel in both cases. On September 2, 2009, the Court agreed, and removed Jenkins as Foster’s counsel in both cases due to Jenkins’ “obvious conflict.” Foster has since proceeded pro se in his bankruptcy case and has filed amended schedules now listing his malpractice claim against Jenkins. In January 2010, Foster filed suit in Pulaski County Circuit Court against Jenkins over Foster’s “Conine” malpractice claim, and that suit is pending. Embry claims Jenkins abused the legal and court process and unnecessarily burdened Embry and his client Conine by failure to give notice to Embry when Foster and/or Jenkins were not going to appear for bankruptcy hearings in Fort Smith. This cost Embry, and his client Conine, unnecessary time, expense, and aggravation in fees and by Embry driving from North Little Rock to Fort Smith for several scheduled meetings of creditors, only to learn the hearing was not to go forward due to the absence of Foster or Jenkins or both.
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REPRIMAND JOHN D. “JAY” ELDRIDGE III, Bar No. 74043, of Augusta, Arkansas, was reprimanded and fined $5,000.00 by Committee Findings & Order filed July 19, 2011, on a Complaint filed by Ima Jean Lindsey in Case No. 2011-022, for violations of Rules 1.1, 1.3, and 8.4(d). Eldridge represented the Estate of Ernest Coles and the personal representative, Ima Jean Lindsey, starting in 2002. Ms. Lindsey gave Eldridge $90,000 in 2003, which he used to pay state and federal taxes. Thereafter Eldridge failed to file timely state and federal tax returns on behalf of the Estate. Ms. Lindsey learned of this in June 2006, and employed new counsel to handle the matter. In 2008 the Estate was notified by the IRS that it had incurred penalties and interest in the amount of $21,148.93. The Estate made demand on Mr. Eldridge, who paid $25,000 to settle the tax matter. The sanction was mitigated by the absence of any prior disciplinary history. RICHARD M. GRASBY, Bar No. 85060, of Little Rock, Arkansas, was reprimanded, fined $1,000.00 and ordered to pay restitution in the amount of $140.00, by Committee Findings & Order filed September 21, 2011, on a Complaint filed by Randy Price in Case No. 2011-049, for violations of Rules 1.1, 1.3, 1.4(a)(4) and 8.4(d). Grasby represented Randy Price in a case involving two traffic offenses in Conway County District Court. After being found guilty in District Court, Mr. Price requested an appeal to Circuit Court, and in February 2007 provided Grasby with a $140 cashier’s check for the appeal filing fee. Mr. Grasby failed to file a request for appeal with the Circuit Court within thirty days of the judgment as required by Rule 36(b) of the Arkansas Rules of Criminal Procedure. As the request for appeal was not timely, Mr. Price’s right to an appeal as guaranteed by the Arkansas State Constitution was denied. Mr. Price requested information about the status of his appeal but Mr. Grasby failed to respond to the requests. Mr. Price did not know of the failure of his appeal, and later learned an arrest warrant had been issued for him for failure to pay his fines. When Price attempted to renew his driver’s license, a condition of his employment, he was unable to do so because he had been removed from the system as a result of his District Court convictions. In January 2009, Price was arrested on the road on an
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RICKEY H. HICKS, Bar No. 89235, of Little Rock, Arkansas, was reprimanded by Committee Consent Findings & Order filed September 22, 2011, on a Complaint filed by Felicia P. Daniel in Case No. 2010-070, for violations of Rules 1.3, 1.15(a)(1), 1.15(b) (2), and 8.4(d). In July 2008, Ms. Daniel
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Attorney Disciplinary Actions for filing a Notice of Appeal had already expired. Mr. Hicks advised that he verbally told Ms. Daniel about the dismissal of the litigation in ample time for her to pursue an appeal, but acknowledged that he did not do so in writing and therefore had no proof he had so notified her. PAUL A. SCHMIDT, SR., Bar No. 67048, of Cabot, Arkansas, was reprimanded and fined $1,000.00 by Committee Findings & Order filed September 21, 2011, on a Complaint filed by Dr. Joe Abrams in Case No. 2011-040, for violations of Rules 1.3, 3.4(c) and 8.4(d). Dr. Abrams’ business, Abrams Enterprizes, LLC, was represented by Mr. Schmidt in a bankruptcy proceeding beginning in 2009. Mr. Schmidt filed a Statement pursuant to Rule 2016(B) which disclosed that attorney’s fees of $3,561 had been paid in the case. Mr. Schmidt did not disclose that the attorney’s fees had been paid by Dr. Abrams, and not by the debtor, Abrams Enterprizes, LLC. Following a show cause hearing subsequent to a hearing on Mr. Schmidt’s Application to Employ Attorney, Debtor’s Motion to Sell and Application to Employ Real Estate Broker, Judge Taylor entered an Order on July 29, 2009, directing Mr. Schmidt to disgorge all fees paid to him back to Dr. Abrams. As of the date of the filing of the formal disciplinary complaint, almost two years later, Mr. Schmidt had not delivered those fees to Dr. Abrams. In responding to the formal disciplinary complaint, Mr. Schmidt advised that the unintentional errors made in the Rule 2016(B) Statement were caused because of the urgency of the situation with regard to a sale date for certain property and a pending foreclosure on property owned by Abrams Enterprizes, LLC. Although not ordered to do so by the Committee, Mr. Schmidt, through counsel, delivered the fees to be returned to Dr. Abrams during the pendency of the formal disciplinary matter.
hired Mr. Hicks to represent her in a pending federal litigation. Mr. Hicks was paid $3,800 as a retainer, which he did not place in his IOLTA trust account. The $3,800 was for services to be rendered in the future and also any costs and expenses associated with the representation. Mr. Hicks failed to keep Ms. Daniel’s funds separate 36 The Arkansas Lawyer www.arkbar.com
in a trust account until Hicks either earned the fee or paid the expenses. Ms. Daniel’s lawsuit was dismissed on March 23, 2009. According to her, Mr. Hicks did not tell Ms. Daniels of the dismissal until a brief phone call on April 1, 2009. He had a more in-depth conversation with Ms. Daniel in May 2009, when the time
JIMMIE L. WILSON, Bar No. 73128, of West Helena, Arkansas, was reprimanded and fined $1,500.00 by Committee Findings & Order filed July 13, 2011, on a Per Curiam Order Complaint in Case No. 2010-043, for violations of Rules 1.2(a), 1.4(b), 3.4(c), 5.5(a), and 8.4(d). Mr. Wilson represented Clarence Richardson on criminal charges in Phillips County. The third appeal of Richardson’s
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Attorney Disciplinary Actions
Tom M. Ferstl, MAI, SRA, J.D. J.T. Ferstl, MAI, J.D. 621 E. Capitol Ave. Little Rock, AR 72201 Phone: 501-375-1439 or 501-376-1439 Fax: 501-375-8317
Expert Witness Testimony Real Estate Related Matters •Tax Appeals •Court Testimony •Condemnation •Divorce 40 Years Experience See Web Site for References www.arkansasappraisers.com email: firstname.lastname@example.org case, No. CR 09-952, resulted in an Opinion issued May 6, 2010, in which the Court referred Mr. Wilson to the Committee on Professional Conduct. Mr. Wilson’s Arkansas law license was suspended from March 2-26, 2010, for his failure to pay his 2010 license fee. On March 19, Wilson requested from the Court an extension of time to file his client’s brief, but that extension was denied. From March 20 until stayed on March 29, Wilson’s law license was also suspended for failure to comply with the Court’s CLE requirements. Wilson tendered his brief on March 22, 2010, but his license was still suspended so his brief was not accepted for filing. Wilson failed to file any brief for his client between March 29, the date both of his license suspensions were lifted or stayed, and May 6, the date the Opinion was issued. The Opinion, issued without the benefit of a Brief for Richardson, was adverse to his client’s position, dismissing the State’s appeal because the Court held the trial court’s favorable order granting Richardson’s motion to dismiss on a “speedy trial” rule violation after trial was a nullity. CAUTION RONALD E. BUMPASS, Bar No. 74020, of Fayetteville, Arkansas, was cautioned and fined 38
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$250.00 by Committee Consent Findings & Order filed August 19, 2011, on a Complaint filed by Ronald Lay in Case No. 2011-030, for violations of Rules 1.3 and 8.4(d). In August 2007, Ron Lay hired Mr. Bumpass, after Mr. Lay was injured in an accident inside the Northwest Arkansas Airport. Mr. Lay spoke with Mr. Bumpass by telephone and Mr. Bumpass agreed to represent Mr. Lay. Mr. Lay was a resident of New York and depended on Mr. Bumpass to handle this matter for him with TSA, since the accident occurred in Arkansas. Mr. Bumpass routinely advised Mr. Lay to wait and the matter would be handled. Mr. Bumpass did not submit the claim to TSA in a timely fashion and it was denied. Mr. Bumpass did not stay in contact with Mr. Lay and failed to advise him when the claim was denied. Mr. Bumpass attempted to have the matter reconsidered but that request was denied as well. JOHN SKYLAR TAPP, Bar No. 76123, of Hot Springs, Arkansas, was cautioned and fined $2,500.00 by Committee Findings & Order filed September 22, 2011, on a Per Curiam Order Complaint in Case No. 2011038, for violations of Rules 1.1. 1.3, and 8.4(d).
Mr. Tapp represented Ronald Collins in the attempt to set aside the adoption by Mr. and Mrs. Fason of Caden Fason. Collins was the biological father of Caden. After a hearing, the trial judge found the Petition to Set Aside should be denied; a companion paternity case for Collins against Mrs. Fason should be denied and dismissed; and the adoption of Caden by the Respondents Fason should remain intact. Tapp filed his first Notice of Appeal in the adoption case on November 9, 2010, appealing the ruling announced earlier, but the actual final Order was not filed until November 18, 2010. Rule 4(a), AR Rules of App. P. - Civil, would automatically treat Tapp’s Notice of Appeal as having been filed on the day after the judgment was filed on November 18. On November 18, 2010, Tapp filed a Motion to Strike Notice of Appeal, which was granted by Order of the trial court on November 30. Tapp then filed a new Notice of Appeal on November 29, from the final Order filed on November 18, claiming he thus had a new ninety (90) days, or until February 28, 2011, to file his appellate record. Tapp tendered his record on February 29, 2011, but the Clerk determined that the trial court did not have authority to strike the first Notice of Appeal and notified Tapp that he needed to file a Motion for Rule on the Clerk, which he did on March 7, 2011. Tapp asserted that the trial court retained jurisdiction of the case until the record was actually filed with the Supreme Court and that the trial court could vacate or set aside his original Notice of Appeal, allowing him to file a second one later. Tapp’s Motion to Strike Notice of Appeal was not joined in on by all parties by joint stipulation, as required by Rule 3(b), AR Rules of App. P. - Civil (2010), adopted in 2005. On April 7, 2011, the Supreme Court denied Tapp’s Motion. On April 12, 2011, Tapp filed a Motion to Reconsider, citing the same proposition as he did in his original Motion, and cited Stahl v. State, 328 Ark. 106, a criminal case, for the proposition that the trial court can dismiss a notice of appeal upon motion to dismiss by the appellant. He did not cite Rule 3(b), Ark. R. App. P. - Civil (2010), which governs civil appeals. This motion was also denied. Mr. Tapp has been a counsel of record in about fifty-six (56) reported state appellate cases, both civil and criminal. Mr. Collins has lost his right to appeal the trial court decision affirming the adoption by another man of a child he claims to be his son. n
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Irreconcilable Differences The current state of the law, post Johnson, is at best confusing and can be summed thusly: A defendant in Arkansas is liable only for his portion of fault; though, a jury may not apportion fault to non-parties and an apportionment among parties must equal 100 percent of the total fault. These divergent points simply cannot be reconciled and one is reminded of the novel “Catch 22” by Joseph Heller in which the fictional character Major Major issues an order that his men can see him only when he is not in. Clearly, following the court’s ruling in Johnson, it is incumbent upon the court to craft a procedure carrying forth the substantive law of several liability.
7. See, e.g., Illustrative Instruction 5, p. 666 and Illustrative Instruction 5, p. 673 Model Jury Instruction – Civil, 2010 Edition. 8. See, e.g., Arkansas Department of Correction v. Williams, 2009 Ark. 523, 2009 Ark. Lexis 676. 9. Ark. R. Civ. P. 81(c). 10. Rockefeller v. Rockefeller, 351 Ark. 145, 1998 Ark. Lexis 640 (1998). 11. 2009 Ark. 373, 326 S.W.3d 415. 12. 375 Ark. 300, 289 S.W.3d 903 (2008). n
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Endnotes 1. Ark. Const. amend. 80, § 3. 2. Subject of course to the post-judgment shifting based upon a defendant’s ability to satisfy its share of the verdict as set forth in Arkansas Code Annotated § 16-55-203. 3. Ark. Code Ann. § 16-55-201. 4. Ark. Code Ann. § 16-55-202. 5. 308 Ark. 208, 823 S.W.2d 877 (1992). 6. 593 F.3d 737 (8th Cir. 2010)
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claim for contribution, thereby substituting the plaintiff for the defendant in the action. In either event, the net effect is to leave the fault of the settled party in the case for determination.21 Barring a determination that it is unconstitutional, proportionate liability is alive and well in Arkansas to the extent that potentially legally responsible parties are brought into a suit. In the absence of non-party fault, proportionate liability has changed nothing under Arkansas law that implicates a rule change, this because all it does is destroy several liability, which concept operates only at the point in time when a verdict is translated into a judgment. Only the constitutionality of proportionate liability remains unresolved. Endnotes 1. See, Richard W. Wright, The Logic and Fairness of Joint and Several Liability, in Symposium, Comparative Negligence, 23 Memphis State U. L. R. 45, 70 (1992). A skeptical mind might suspect that the misapplication of the word “several” is an intentional element in promoting the view that joint and several liability is flawed because it holds defendants liable for damage they
did not cause. Perhaps, however, it merely reflects the legal scholarship of those who drafted the language. The word is properly employed in Arkansas’s version of the Uniform Contribution Among Tortfeasors Act. See, Ark. Code Ann. §16-61-202(4). 2. Comparative Fault, Ark. Code Ann. § 16-64-122, and Contribution Among Tortfeasors Act, Ark. Code Ann. § 16-61201 et seq. 3. Woodward v. Blythe, 462 S.W.2d 205 (Ark. 1971). 4. Larsen v. Nissan Motor Corp. in U.S.A., 194 Ariz. 142, 144-50, 978 P.2d 119, 121-27 (Ariz. App. Div. 2, 1998) (holding proportionate liability did not alter plaintiff’s burden of proof as to causation). 5. See, City Electric v. Conery, 61 Ark. 381, 33 S.W. 426 (1895). See also, Troop v. Dew, 150 Ark. 560, 234 S.W. 992 (1921); McGraw v. Meeks, 326 Ark. 285, 930 S.W.2d 365 (1996); and Applegate v. Riggall, 229 Ark. 773, 318 S.W.2d 596 (1958). 6. Woodward, supra. 7. Ark. Code Ann. § 16-61-201 et seq.; Merrill, Lynch, Pierce, Fenner and Smith, Inc. v. First National Bank, 774 F.2d 909 (8th Cir. 1985). 8. There are three general groups that non-
party fault facilitates being brought into the fault apportionment process that would not otherwise be included if they had to be sued: those who are immune or have no duty (state, employers, charities, volunteers etc.), those who are bit players and likely judgment proof (such as individual employees), and those which on balance the parties, perhaps for different reasons, would normally determine are best left out. Non-party fault, then, encourages the plaintiff to throw the widest possible net, and grossly expands the complexity and expense of litigation by interjecting non-liable and non-present parties into the fault assignment process. The payoff for institutional tortfeasors comes in spreading fault and hence reducing liability to those that do have duties and aren’t immune. 9. Prior to Johnson, the author was involved in one case where the defendants named 35 nonparties on the deadline. Implicit in the process is that legal responsibility need not exist. A jury may be sold, then, on the idea that a regulatory agency was at fault, even if the law would place no liability on it or a bystander was at fault for failing to provide aid, even though there was no duty to do so. Once you reach outside the normal processes for determining and assigning liability, it becomes unclear what, if any, limitations there may be to the process.
Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
10. 2009 Ark. 241, 308 S.W.3d 385. 11. In pertinent part, the court noted: “Clearly the law modifying joint and several liability, Ark. Code Ann. § 16-55-201, defines the right of a party, a defendant, and is substantive. However, after reviewing section 16-55-202, it is clear to this court that the legislature has, without regard to this court’s ‘rules of pleading, practice and procedure,’ established its own procedure by which the fault of a nonparty shall be litigated.” Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 248. This is a statement made to contrast the nature of diverse parts of the act. To say that something is substantive is not to say that it is constitutional. 12. At least two other courts have struck down similar statutes on more substantive grounds. In Plumb v. Missoula County Dist. Ct., 927 P.2d 1011 (Mont. 1996), the Montana Supreme Court struck down a similar phantom defendant statute on grounds that it violates principles of substantive due process as guaranteed by that state’s constitution. In Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Ill. 1997), the Illinois Supreme Court struck down a similar act, including the abolition of joint and several liability, finding that the act violated the state’s prohibition against special legislation. 13. 593 F.3d 737 (8th Cir. 2010). 14. On a fundamental basis it seems that the concept of non-party fault is so inherently procedural that it would be impossible for the legislature to formulate it so as not to run afoul of separation of powers. In tort, substantive law deals with duties, immunities and defenses. Non-party fault does not seek to change these things but to change the means by which they are implemented in the courts; ways which are
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inimical to the most fundamental concepts of due process by judging, for purposes of determination, the conduct of non-parties. The legislature could, of course, by lifting the various immunities and extending concepts of duty make all those it would have be non-party defendants into actual defendants and thereby extend the scope of fault allocation through alterations in the substantive law. That, of course, is not the goal. 15. Plaintiffs seeking to avoid having a settled joint tortfeasor’s fault placed on the verdict form have advanced this same argument. 16. Ark. Code Ann. § 16-61-201 et seq. 17. Ark. Code Ann. § 16-61-202(2). 18. Ark. Code Ann. § 16-61-202(4). 19. If one adopts the linguistic problem as real one must then accept the applicability of Rule 81(c), which allows for implementing ad hoc procedures in situations not specifically addressed in the Rules. Rule 81(c), under such an interpretation, would seem to allow the third party action intended by Rule 14 but arguably no longer addressed by it on the rigid linguistic grounds noted. 20. It is worth noting that any plaintiff wishing to preserve the argument that proportionate liability is not constitutional should not object to action on the basis of the argument noted herein, as it assumes proportionate liability to be valid, this on top of likely being fatal error. 21. Bailey v. Stewart, 238 Ark. 666 (1964); Sainato v. Swerdlow, 62 F.R.D. 329 (U.S. Dist. Ct. W. Dist Fayetteville Div. 1974). In practice, the remaining defendants are entitled to the greater benefit of the reduction based upon the pro rata share or set off as provided by Ark. Code Ann. § 16-61-204. n
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cases like Belz-Burrows that do not allow nonparties on verdict forms. Of course, getting the instruction requires more than just “blaming” someone else. The defendant who wants it must make a submissible jury question as to some other alleged tortfeasor’s “fault.” This allocation of “fault” is an affirmative defense that the defendant relying on it must prove. The instruction does what the abrogation of joint and several liability does but never owns up to. Joint and several liability assumes the existence of an indivisible injury caused by more than one actor more or less concurrently. It exists, at least in part, because a plaintiff should be entitled to recover the entire harm from anyone who caused it. Contribution exists to allow the various tortfeasors to redistribute the costs of their behavior to one another. The abrogation of joint and several liability does not pretend to alter this causation fact. Rather, it adds a layer to the equation, namely the egregiousness of the actions of the various joint tortfeasors, and then places the risk of the inability to recover on the injured plaintiff. By claiming to allow one joint tortfeasor to be allocated more fault than another, the abrogation of joint and several liability says that tortfeasor is a “worse” actor than the other and forces the plaintiff to recover from both if he can. This instruction coupled with the standard “fault” instruction accomplishes that goal, however dubious it may be. Many plaintiff’s lawyers do not like the instruction. They do not want to tell the jury that it can consider the fault of absent parties at all. However, assuming joint and several liability does not exist and a jury must take fault as a piecemeal notion, juries must be given some guidance. This instruction or something similar to it provides it. Defendants likewise dislike the instruction. They argue that the absent joint tortfeasor must be on the verdict form for Act 649 to be given effect. As explained, however, no legally-legitimate mechanism exists to bring the absent joint tortfeasor into the case, and simply putting him or her on the verdict form is not the answer. Telling the jury that it can only do what the abrogation of joint and several liability allows is. This instruction does just that. D. Conclusion. What is at the root of this problem? It is that the Legislature chose to abrogate an age-old and
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To submit your application online, please visit us at: bbb.org/us/Dispute-Resolution Training Training in 2012 sponsored by the Better Business Bureau of Arkansas, Inc. Questions? Contact Lori Plant at firstname.lastname@example.org or call (501) 664-4888, ext. 102 tested legal principle, joint and several liability, that was grounded in the common-sense notion that juries cannot divide the indivisible. Can it truly be said that when two tortfeasors run stop signs in opposite directions and both collide with the plaintiff’s car in the intersection and kill her that one killed 75 percent of the plaintiff while the other killed 25 percent? Of course not, but that is exactly what Act 649 requires juries to do. Simply instructing the jury that the tortfeasor before it can only be held liable for the degree of harm his “fault” caused allows the jury to do so. Endnotes 1. 2009 Ark. 241, 308 S.W.3d 135. 2. Booth v. United Indus., 583 F. Supp. 1561 (W.D. Ark. 1984); Belz-Burrows, L.P. v. Cameron Constr. Co., 78 Ark. App. 84, 78 S.W.3d 126 (2002). 3. McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737 (8th Cir. 2010). 4. Martin Farm Enterprises, Inc. v. Hayes, 320 Ark. 205, 895 S.W.2d 535 (1995). 5. Ark. Code Ann. § 16-61-202(1). 6. Prosser, Joint Torts and Several Liability, 25 Cal L. Rev. 413, 414 (1937) (hereafter Joint Torts); Wright, The Logic and Fairness of Joint and Several Liability, 23 Mem. ST. U. L. Rev. 45 (1993) (hereafter Logic and Fairness);
Marcus, Phantom Parties and Other Practical Problems with the Attempted Abolition of Joint and Several Liability, 60 Ark. L. Rev. 437, 438 (2007) (hereafter Phantom Parties). “Acting in concert” had a much broader meaning at common law than it does under Act 649. 7. Joint Torts at 523; Logic and Fairness at 37. 8. Joint Torts at 418; Logic and Fairness at 70, 74; Phantom Parties at 439. 9. Logic and Fairness at 70. 10. Peck, The Development of the Law of Joint and Several Liability, 55 FDCC Quarterly 469 (2005). So where did the idea that “joint” means joint liability and “several” means proportionate several liability come from? Apparently from those who want to “reform” the common-law tort system because it did not come about until the post-tort-reform era. Peck, The Development of the Law of Joint and Several Liability, 55 FDCC Quarterly 469 (2005). 11. Joint Torts at 418. 12. Ibid. 13. Phantom Parties at 438 (citing Restatement (Third) of Torts: Apportionment of Liability § A18 cmt. A reporter’s note (2000)). 14. Ark. Code Ann. § 16-61-201. 15. Source: Act 649 of 2003; Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135. n
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liable to him for all or part of the plaintiff’s claim against him.34 Before the ACJRA modified joint and several liability, a defendant could file a claim for contribution against a third party even before discharging a common liability or paying more than his or her pro rata share of liability.35 However, contribution is a creature of statute and exists only where there is joint liability. Under Arkansas’s Uniform Contribution Among Torfeasors Act, a joint tortfeasor is not entitled to contribution until he or she has discharged the common liability by payment or has paid more than his or her pro rata share of the common liability.36 Under the ACJRA, however, a defendant is only liable for the amount of damages allocated in direct proportion to that defendant’s percentage of fault.37 Accordingly, a defendant held to several liability only will never pay the common liability or more than his or her pro rata share of liability. As a result, the enactment of several liability under § 16-55-201 arguably precludes any potential claim for contribution under § 16-61-202. It follows that, because a typical claim of contribution will not result in a thirdparty being liable to a defendant for all or a part of the plaintiff’s claim against that defendant, the plain language of Rule 14(a) fails to provide a mechanism to bring into the action a third-party tortfeasor.38 It may be time for Rule 14 to do more work. Faced with a similar problem created by the conflict between several liability and contribution, Alaska developed a theory of equitable apportionment under Rule 14.39 In fact, the
Alaska Rules of Civil Procedure were amended to provide for a third-party claim of equitable apportionment.40 Although Arkansas has not endorsed a claim of equitable apportionment, it can be argued as a basis for asserting a thirdparty claim and as a solution to the conflict between Arkansas’s contribution statute and several-liability statute. 3. Rule 81 As a third potential tool for assessing fault to all responsible, a defendant may ask the trial court to develop a mechanism to allow a fact finder to apportion fault to a non-party. Because the Arkansas Supreme Court only held unconstitutional the procedure provided by the General Assembly for assessing nonparty fault, a party is conceptually free to ask a circuit court to carry out, in some manner, the substantive provisions of Ark. Code Ann. § 16-55-201 under the Arkansas Rules of Civil Procedure.41 The Arkansas Rules of Civil Procedure “govern the procedure in the circuit court in all suits or action of a civil nature with the exceptions stated in Rule 81. They shall be construed and administered to secure the just, speedy and inexpensive determination of every action.”42 In addition, “when no procedure is specifically prescribed by [the Rules], the court shall proceed in any lawful manner not inconsistent with the Constitution of this State, these rules, or any applicable statute.”43 Our circuit courts are empowered to carry out the substantive provisions of Ark. Code Ann. § 16-55-201 by employing a procedural mechanism to assesses fault. As a guide, trial courts may look to the procedure set in Ark. Code Ann. § 16-55-202.
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4. Jury Instructions Proper jury instructions and arguments of counsel may also provide an adequate method to apportion several liability under Ark. Code Ann. § 16-55-201. In Reed v. Malone, for example, the United States District Court for the Western District of Arkansas explained that the issues of allocating non-party fault “are best addressed by properly drafted jury instructions.”44 Arkansas Model Jury Instructions provide an illustrative instruction for apportioning fault in a multiparty action: Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.45 To animate Arkansas’s law of several liability, the jury should be instructed that the total responsibility need not total 100%. The model illustrative instruction could be modified to provide: If you have determined that any one of [the defendants] was the proximate cause of damages to [the plaintiff], then, understanding that the total fault cannot exceed 100%, but can be less than 100%, apportion the fault between the parties that you have found to be responsible. Following this model allows the jury to assign fault directly to the parties before them without creating the artificial paradigm of requiring allocation of 100% responsibility. And, when a court sits as the fact finder, AMIs also act as guide. Conclusion Laws change. Just as it takes a potter to turn some mud into a useful mug, it takes lawyers to transform the stagnant words of rules, statutes, and cases into a valuable tool to effect the policies of the state of Arkansas as decided by the General Assembly. As a policy-making body, the General Assembly concluded years ago that liability in Arkansas should be several and that, in rendering a fair verdict, a fact-finder must be able to consider the fault of all potential responsible tortfeasors. Given the Arkansas Supreme Court’s holding in Johnson—that the General Assembly overstepped its bounds in creating the procedure for assessing non-party fault—lawyers must now help reform the law using the Arkansas Rules of Civil Procedure, ACJRA, and Johnson. Whatever form it ultimately takes, Arkansas law should allow several liability and the concomitant ability of a fact finder to assess fault to parties and non-parties.
Endnotes 1. See Ark. Code Ann. § 16-55-201. 2. Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135. 3. Ark. Code Ann. §§ 16-55-201 et. seq. 4. See Ark. Code Ann. § 16-55-201. 5. Ark. Code Ann. § 16-55-201(b)-(c). 6. See, e.g., Restatement (Second) of Torts § 433A. 7. See Ark. Code Ann. § 16-61-202. 8. See Miller v. Hometown Propane Gas, Inc., 86 Ark. App. 189, 199, 167 S.W.3d 172, 179, n.3 (2004). 9. 1955 Ark. Acts 191. 10. 1957 Ark. Acts 296. 11. Compare 1957 Ark. Acts 296 with 1973 Ark. Acts 303 with 1975 Ark. Acts 367 codified at Ark. Code Ann. § 16-64-122. 12. 343 Ark. 437, 36 S.W.3d 291 (2001) (distinguishing Riddell v. Little, 253 Ark. 686, 488 S.W.2d 34 (1972)). 13. Id. 14. See Ark. Code Ann. §§ 16-55-201 and 216. 15. 2009 Ark. 241, 308 S.W.3d 135. 16. Id. 17. See, e.g., 2003 Ark. Acts 649, § 26 (“It is found and determined by the General Assembly of the State of Arkansas that in this state, existing conditions, such as the application of joint and several liability regardless of
percentage of fault, are adversely impacting [the State.]”). 18. 593 F.3d 737 (8th Cir. 2010). 19. Id. 20. 78 Ark. App. 84, 78 S.W.3d 126, 129 (2002). 21. Id. at 744. 22. 78 Ark. App. at 89, 78 S.W.3d at 129. 23. Id. 24. Ark. Code Ann. § 16-64-122. 25. See Nations Bank, N.A. v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001). 26. See Ark. Code Ann. § 16-55-201. 27. Ark. R. Civ. P. 19. 28. See Reporter’s Notes to Rule 19 (citing Wright v. First Nat’l Bank, 483 F.2d 73 (10th Cir. 1973)). 29. Arkansas State Med. Bd. v. Bolding, 324 Ark. 238, 920 S.W.2d 825 (1996); see also Reporter’s Notes to Ark. R. Civ. P. 19. 30. See, e.g., Estate v. Alvarez v. Donaldson Co., Inc., 213 F.3d 993 (7th Cir. 2000) (holding that tortfeasors were indispensable under Indiana’s Comparative Fault Act because nonparties must be assessed fault). 31. 128 F.R.D. 106 (S.D. Iowa 1989). 32. Id. 33. Id; see also Stat-Rite Indus., Inc. v. Allstate Ins. Co., 96 F.3d 281 (7th Cir. 1996) (holding that, under Rule 19, a responsible party must
be joined in the absence of joint and several liability “to fully and accurately allocate liability”). 34. Ark. R. Civ. 14(a) (emphasis added). 35. See Ark. Code Ann. § 16-61-207. 36. Ark. Code Ann. § 16-61-202. 37. Ark. Code Ann. § 16-55-201. 38. See also Reed v. Malone, Case No. 09-2061, W.D. Ark., Docs. # 37, 57 (June 4 and July 8, 2010). 39. See McLaughlin v. Lougee, 137 P.3d 267 (Alaska 2006). 40. See Alaska R. Civ. P. 14(c); see also Benner v. Wichman, 874 P.2d 949, 956 (Alaska 1994) (“Now that the voters have eliminated contribution through the [modification of joint and several liability], equity requires that defendants have an avenue for bringing in others who may be liable to the plaintiff.”). 41. See, e.g., Mercury Marketing Technologies of Delaware, Inc. v. State ex rel. Beebe, 358 Ark. 319, 189 S.W.3d 414 (2004) (Hannah, J., dissenting) (explaining that circuit courts follow judicially created procedure when no rule or statutory procedure exists). 42. Ark. R. Civ. P. 1. 43. Ark. R. Civ. P. 81(c). 44. Reed v. Malone, Case No. 09-2061, W.D. Ark., Doc. 57 (July 8, 2010) (Dawson, J.). 45. See AMI-Civil, Ch. 36 § II at Interogatory 5. n
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Ralph Edwin Wilson, Sr. Ralph Edwin Wilson, Sr., of Osceola died September 13, 2011, at the age of 89. He attended the U.S. Naval Academy and graduated from Union University in 1946. He earned his Juris Doctorate from Vanderbilt University in 1949. He served as a navigator and achieved the rank of lieutenant in the U.S. Merchant Marine in World War II, USNR, 1943-45, according to an obituary in the Arkansas Democrat Gazette. He practiced law in Osceola from 1949 until 2011. He was the first city attorney for Osceola and served as deputy prosecuting attorney for the Second Judicial District from 1950-53. He was joined in partnership of Wilson & Wilson by his son Ralph from 1975-1989. He briefly served by gubernatorial appointment as Osceola Municipal Judge. He served as special assistant to the Arkansas Attorney General from 1956-60. He was a longtime Sustaining Member of the Arkansas Bar Association. He was a Fellow of the Arkansas Bar Foundation. He was a member and past president of the Osceola Bar Association and a member of the Arkansas Trial Lawyers Association. He was admitted to the Bar of the United States Supreme Court. He is survived by his wife of 62 years, Mary Ann Murray Wilson; children, Ralph and his wife Sally Wilson, Don Wilson, and Terry Wilson Shafer. Truman H. Smith, Jr. Truman H. Smith, Jr., of Fayetteville died August 27, 2011, at the age of 73. He earned his Juris Doctorate from the University of Arkansas. He was a veteran of the United States Navy serving in the Vietnam War. He was a member of the Arkansas Bar Association where he served on the Lawyers Assisting Military Personnel Committee. He was a past president of the Washington County Bar Association. 46
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Judge Knox Cracraft, Jr. Judge Knox Cracraft, Jr., of Helena died August 28, 2011, at the age of 88. He earned his Bachelor of Arts degree from the University of the South in Sewanee, TN, and earned his Juris Doctorate from Harvard Law School in 1947. During World War II, he served with the rank of First Lieutenant in the United States Army Air Force as Aircraft Commander in 1942-1945 flying B-17 bombers on 35 missions over Germany, according to an obituary in the Arkansas Democrat Gazette. He served in Korea with the rank of Captain in the United States Army on the staff of the Judge Advocate. He returned to Helena after law school to begin his law practice. He was city attorney for Helena from 1949-1951, Deputy Prosecuting Attorney of Phillips County and served on the City of Helena Planning Commission. He served as a judge on the Arkansas Court of Appeals from 1981-1992. He was a member of the Arkansas Bar Association. Thorp Stockton Thomas Thorp Stockton Thomas of Little Rock died September 17, 2011, at the age of 88. He earned his Juris Doctorate from the University of Arkansas. He was an assistant attorney general in Arkansas in 1953 before beginning a private law practice in 1963. He was a member of the Arkansas Bar Association.
Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Acknowledgements are sent by the Foundation to the family advising them of the contribution. The Foundation also receives and acknowledges gifts honoring individuals for a special event in their lives. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundationâ€™s work in making scholarship funds available for law students, projects that assist in improving and facilitating the administration of justice and other lawrelated charitable efforts. Contributions may be sent directly to: Arkansas Bar Foundation, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Please feel free to call the Arkansas Bar Foundation at 501.375.4606 for further information.
Arkansas Bar Center Contributions This hand crafted sketch was produced by local artist Richard DeSpain. It is displayed in the Arkansas Bar Foundation Executive Directorâ€™s office at the Arkansas Bar Center. The Bar Center celebrates its fiveyear anniversary at its new location on Cottondale Lane this November.
The Arkansas Bar Foundation expresses its appreciation to the following individuals whose generous contributions made the purchase of the Arkansas Bar Center artwork entirely possible: Thomas A. Daily Charles L. Harwell Frank B. Sewall
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Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period July 1, 2011 through September 30, 2011: In Memory of Missy Wright Anderson Roscopf & Roscopf, P.A. Fred and Sharon Ursery In Memory of Judge Carol Crafton Anthony Cathi Compton In Memory of Judge George K. Cracroft, Jr. Justice Robert L. Brown Judge James G. Mixon* W. Frank Morledge Judge John M. Pittman Roscopf & Roscopf, P.A. In Memory of Lynn Davis B. Jeffery Pence In Memory of John C. “Jack” Deacon Kay and Bill Allen Mr. and Mrs. Philip S. Anderson Ben F. Arnold Mr. and Mrs. Donald H. Bacon Caroline S. Bednar Suzanne and David Blair Justice Robert L. and Charlotte Brown C. Joseph and Sue Calvin Mr. and Mrs. Murray Claycomb Judge Lawrence E. Dawson Phillip B. Farris David M. Fuqua Hamilton, Colbert & Scurlock, LLP Samuel Highsmith Marina B. Jacks Jim and Patti Julian Robert L. Jones III and Cheryl Jones Philip E. Kaplan Peter and Trudy Kumpe Laser Law Firm William A. Martin James and Sally McLarty Kirby and Rosalind Mouser Don and Lynn Parker Ed and Evelyn Penick The Perkins Law Firm Hayden and Gordon Rather Roscopf & Roscopf, P.A.
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In Memory of Ray A. Goodwin W. Kelvin Wyrick
In Memory of Gwendolyn D. Hodge Ken Reeves
In Memory of H. Maurice Mitchell Bill and Betty Stringfellow
In Memory of Judge Henry Woods, Designated to the Henry Woods Scholarship Fund John F. Courtway Judge Bill Wilson and Cathi Compton In Memory of Ann Bramley Wynne Don A. Eilbott *Designated to the Ernest G. Lawrence, Jr. Scholarship Fund
Honorariums In Honor of Judge Bobby F. Fussell Ken Reeves
Vol. 46 No. 4/Fall 2011 The Arkansas Lawyer
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The Arkansas Lawyer magazine Fall 2011