Behrens and Casolaro Address Significant Developments Affecting Civil Justice Reform Legislation in Arkansas

The Federalist Society has published a November 2015 report by Shook Public Policy Co-Chair Mark Behrens and Associate Christopher Casolaro discussing challenges to Arkansas' Civil Justice Reform Act of 2003 (CJRA), which made changes to the law regarding (i) joint and several liability, (ii) punitive damages, (iii) protecting the right to appeal, (iv) "phantom damages" or collateral source, and (v) medical liability. According to the report, the Arkansas Supreme Court initially struck down many CJRA provisions—including those addressing nonparty-fault allocation, medical costs evidence and a cap on punitive damages—before adopting amended Arkansas Rules of Civil Procedure that sought to “fill the procedural void resulting from procedural aspects of [the CJRA] that were struck on separation-of-powers grounds.”

In light of these rulings, however, the authors argue that "policymakers could consider reforms that do not involve court pleadings, practice, or procedure, and that do not limit damages for personal injury and property damages outside the employment relationship." They also urge the General Assembly to consider amending the Arkansas Trade Practices Act in addition to addressing the state's high post-judgment interest rate and strengthening the jury system. 

The core components of the CJRA reflected mainstream changes that have been made in many other states. In the post-amendment 80 environment, however, the Arkansas Supreme Court has declared rules regarding pleading, practice, and procedure to be beyond the General Assembly’s authority. The court has also used the Arkansas Constitution’s prohibition against limits on personal injury and property damages outside the employment relationship to strike down a punitive damages cap. Some of those issues have been addressed by the Arkansas Supreme Court, which has used the rules amendment process to address procedural aspects of the CJRA that were struck down and to supersede other procedural elements of the CJRA. The General Assembly, however, can continue to identify reforms that would pass constitutional muster in Arkansas, including permissible changes to the Arkansas Deceptive Trade Practices Act, the state’s post-judgment interest rate statute, and jury service improvements.