Annual JLAP dinner scheduled for October 30

The annual Arkansas Judges & Lawyers Assistance Program Advocates Dinner is October 30 at 6 pm at the Governor's Mansion.

Hilary volunteers for Arkansas JLAP, which provides free treatment for lawyers, judges, and family members suffering from mental illness, addiction, and a variety of other illnesses.

We'd love to see you there.

A lawyer's take on the proposed amendments to the Arkansas Constitution

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Today marks the first day of early voting. As a lawyer, I think I have a duty to discuss with my friends the meaning and implications of proposed changes to the law on the ballot.

The short version: NO on Issues 1 and 2; YES on Issues 3, 4, and 5.

Now for the long version. The legislature has the right to propose 3 constitutional amendments every 2 years, as follows:

Proposed Amendment No. 1 (referred by the Legislature):

Proposed Amendment No. 1 provides for review and approval by the Legislature of administrative rulemaking. I am voting no. I think legislative interference with administrative rulemaking takes power away from professionals and makes it part of the political process. This will further slow down the administrative process, which is already slow because it requires notice of proposed rulemaking by the legislative body that in turn permits public comment. Besides, if the Legislature doesn't like the way its laws are interpreted through administrative rulemaking, it means the law needs to be rewritten with greater clarity. I think this is a legislative power grab and, as such, is unwise. I voted no because there is no upside unless you're a legislator.

Proposed Amendment No. 2 (referred by the Legislature):

Proposed Amendment No. 2 sets additional limits on citizens who try to petition for constitutional or legislative amendments. Petitioning is the very first right reserved to the people in the Arkansas Constitution (see below for examples – 2 citizen proposals are on the ballot). It is the way the citizens propose new laws when they don't like what the government is doing. Here, the legislature is trying to limit citizens' access to government. Like Issue No. 1, I believe this is an unwise legislative power grab. I voted no.

Proposed Amendment No. 3 (referred by the Legislature):

Proposed Amendment No. 3 is really several issues in one. It contains much needed campaign finance reform, like prohibiting gifts from lobbyists and restricting legislators from becoming lobbyists for two years after elected service. It creates an independent commission to set salaries of elected constitutional officers (e.g., governor, legislators, secretary of state, judges, etc.). Finally, it extends term limits for the legislature. This amendment was a compromise between several different factions in the legislature. I voted yes because I think campaign finance reform was needed, and after speaking with legislators on both sides of the aisle, I think having legislators with additional institutional knowledge may be beneficial to the Legislature as a whole.

Proposed Amendment No. 4 (by petition of the people):

As indicated above, citizens have petitioned to get two issues on the ballot. The first is Proposed Amendment No. 4, a proposed amendment to the Arkansas Constitution that repeals initiated acts from 1935 and 1942, which established the procedure for making counties wet or dry with respect to alcohol sales. According to USA Today, in 2009 Arkansas was dead last in clarity of alcohol laws. This amendment would eliminate dry counties altogether, but would maintain laws and regulations about alcohol sales and service (e.g., liquor stores at least 1000 feet from churches and schools). I voted yes, even though part of my practice involves helping counties make the transition from dry to wet.

Proposed Issue No. 5 (by petition of the people):

Proposed Issue No. 5 deals with the minimum wage. It will increase from $6.25/hour now to $8.50/hour in 2017. Like the alcohol issue, Arkansas lags behind the rest of the nation on minimum wage. I voted for it, because more money in the pockets of working Arkansans means fewer people on public assistance.

These are just my views. Even if you disagree, please go vote. It's the most important right we have as Americans.

MRIs in motion show what happens on the inside

I've previously written on the benefit of MRIs taken under real-world conditions, where the patient is sitting or standing upright during the MRI. These types of MRIs are invaluable for explaining why some patients experience certain types of pain patterns, even when recumbent (lying down) MRIs can't always explain pain.

Here's an interesting video compilation of MRIs images set to motion (warning — brief clip of sexually explicit content):

Perception versus Reality: the jury can't hear everything

I caught a lucky break last weekend when one of my college roommates at the SAE house put his Razorback tickets up on Facebook. He has an infant and won't be making many games this year. We planned on going to Fayetteville for the game, so I stopped in Little Rock and got his tickets. To the delight of my son and I, the tickets were front row south end zone seats. Great seats for a great game. The Hogs capped off a dominating performance against Northern Illinois with a touchdown sprint by Korliss Marshall late in the 4th quarter. This happened right in front of our seats, and my whole family could have reached out and touched the players. The photo is a screen grab from the ESPNU coverage of the game.

My oldest son's perception of what it means to go to a Razorback game is forever changed. At 6, he'll probably always remember that moment on the front row. (My earliest memory of a game is from the age of about 4, most of the way up the grandstands. I was terrified of Big Red, the mascot.) In reality, it is rare to have those types of seats, even for big boosters. As I said before, I simply got lucky. (So did my friend — they volunteered to change seats when the south end zone seats were installed.)

Perception versus reality has its place in the courtroom, and juror feedback is a great thing for identifying the difference between the two. I've tried cases in three states in both federal and state court. Every judge does something a little differently about talking to the jury. Many times, juror feedback is limited by the Court. For example, in most federal courts, the judge won't permit any contact with jurors until after any appeals are finalized, and then only if the juror puts his or her name on a list. In state court in Arkansas and Texas, the custom is for the judge to tell jurors that want to discuss the case with the attorneys to leave through the courtroom; other jurors go out a different door.

After unfavorable jury verdicts (which any plaintiff's lawyer who tries many cases have had), jurors almost always report that they would have liked to see more information — more medical records, more tax returns, any information about car or health insurance, more witnesses from different parts of life. Courts have limited resources, and so attorneys must make choices about what evidence to present to the jury within a limited time frame. Attorneys for injury victims also can't present any evidence relating to insurance, which is a law we believe should be changed. This is the case even when the defendant has insurance to pay any judgment, or the medical bills actually paid by health insurance are far less than the rate charged by a hospital.

So the reality is that people have many more medical records and witnesses than could ever be presented to tell a complete story of a life-changing event. Court rules also limit what types of evidence can be shown to the jury. So, the jury's perception is shaped by constraints on time and by laws created by lobbyists to limit references to insurance and other matters that almost always interest the jury.

If you were on a jury, how would you handle the difference between perception and reality? How would you want an attorney to explain the difference to you?

Nathan Publishes Article in the Arkansas Law Review

The summer 2014 edition of the Arkansas Law Review is out, and I wrote one of the feature articles. The article is about the Arkansas Deceptive Trade Practices Act (ADTPA). The ADTPA permits any citizen who has been the victim of a deceptive trade practice to bring suit against the bad actor. The act is very broad and consumer-friendly. We most often see it when the Arkansas Attorney General uses it to stop wrongful practices, like very high interest check-cashers.

The Act contains an exemption for conduct "authorized" by federal and state laws and regulations. Some Arkansas courts apply the exemption as written. For example, when the Environmental Protection Agency approved an estimated mileage sticker for the Toyota Prius, an ADPTA claim against Toyota for misleading mileage estimates failed. The conduct was "authorized" by the EPA. When the ADTPA exemption is limited like this, it is known as an application of the "specific conduct" rule.

Some Arkansas courts have interpreted this to mean that all "regulated" conduct is exempt from the ADPTA. For example, some insurance companies argue that their claims practices are regulated and any ADTPA suit against them must fail, even though the insurance code defines certain insurance practices as deceptive (like failing to give you a reason for denying your claim). Primarily, the federal district courts for the Eastern District of Arkansas apply the rule this way; it is known as the "general activity" rule.

The Arkansas Supreme Court hasn't specifically ruled on this exemption. However, many courts around the country have ruled on similar exemptions.  My article surveys 50 other states, and concludes that most states having a rule similar to ours apply the specific conduct rule.

The full citation for the article is: Nathan P. Chaney, The Arkansas Deceptive Trade Practices Act: The Arkansas Supreme Court Should Adopt the Specific-Conduct Rule, 67 Ark. L. Rev. 299 (2014). I'll post a link when it becomes available.