WHAT WILL WE DO ABOUT THE "TERRORISTS"

IN OUR BACKYARDS?

by

Frederick S. "Rick" Spencer
Attorney at Law
www.rickspencer.com

[Published article in "The Docket" which is the official magazine of the

Arkansas Trial Lawyer's Association]

     While on an extended trip to the Ivory Coast in western Africa about five years ago, we learned from the locals the first day we arrived that the very last person we would want to see was a policeman or official of the Ivorian government. Almost without fail, any "officer" would insist on a bribe to let your car pass by his temporary nail-studded barricade-on-wheels. It reminded me of the fairy tale about the "old troll under the bridge" abusing anyone who would dare "cross over his bridge". But this time, it wasn't a funny story for children. It was reality! In fact, some missionary friends of ours were recently beaten and robbed one night in their home by Ivorian soldiers carrying automatic weapons.

     But on the first day we arrived, we were also advised by the Ivorian people that if we were ever attacked, loudly yell out the French word for "help" or "thief" and all native bystanders within the sound of our voices would without fail immediately come running to our defense. We were very thankful that the Ivorian society had this unwritten, unspoken but very powerful "law" that all would uphold - even when it may result in their own injury or death.     It was obvious to everyone that notwithstanding the "words" of protection guaranteed by Ivorian law, the Ivorian government had failed its people. The Ivorian law that applied to everyday life was the "law of the jungle" (i.e. only the strongest survive at the expense of the weakest).

     Not surprisingly, we also found the typical Ivorian citizen extremely gracious and helpful to us foreigners - even foreigners like myself who could only manage one or two words of French. The Ivorian people instinctively knew that this "law" of helping others without fail was essential to keep alive the little sanity still left in their society.     Yet I'll never forget the surprise we all felt when we deplaned in New York and passed under the American flag in the airport's customs hallway. There was at once a unified sigh of relief because we were "home" where there was this palpable sense of safety.

     Last year, that security was challenged on September 11th, 2001, when we witnessed thousands of Americans die at the hands of terrorists. Yet just like those common Ivorian people, when most of us in Arkansas Trial Lawyer's Association [hereinafter referred to as "ATLA"] and other like-minded Americans witnessed the horror and cries of our fellow Americans, many Americans - and especially our membership - rose to the occasion. ATLA members immediately began offering free legal advice and helping victims without any thought of a fee and at considerable expense to themselves personally.

     Those acts by our brothers and sisters in the law should make us all proud to be associated with ATLA. Yet history teaches us that disasters and injustices have typically brought out the very best in lawyers just as it brought out the best in most Americans. ATLA has from its inception deemed itself the "voice of the people" that have no effective voice. ATLA members typically represent the indigent, the weak and the dispossessed who but for their lawyers would have no one to come to their aid.     As a member of the Board of Governors of Arkansas of ATLA since 1983, I have listened and watched my successful peers "level the playing field" representing the destitute against such corporate giants as, for example, AllState Insurance Company - a company that continues to abuse so many personal injury victims in their "good hands". And may God bless these lawyers for their efforts!     My grandfather was one of the few legal experts in Arkansas on insurance law at the turn of the last century when insurance was the exception rather than the rule. And even that long ago, my grandfather warned of the grave potential for abuse by insurance companies because of their huge coffers with potentially unlimited funds to wreck disaster on anyone who dared get in their way.

     But those few of us who still handle worker's compensation claims in Arkansas know that AllState's present false and illegal assurances to victims of their insured's negligence that "you need no lawyer" is nothing compared to the pain and injury to our State's citizens daily occurring in our own backyards because most Arkansas injured workers have no lawyer. This happens because there are not enough ATLA members - typically those lawyers who frequently help victims - willing to become a part of the solution. We are the ones who should help these victims of corporate greed and legislative and judicial abuse of power.

     Truthfully, some of us have forgotten the roots of ATLA and - more importantly - our oath of office taken before the Supreme Court the day we were licensed in Arkansas. We all swore to follow the "rule of law" and defend the U.S. and Arkansas Constitution and "the indigent without thought of lucre".     We have always known that any man or woman because of greed or malice who wanted to become a dictator or a tyrant or a terrorist must first seek to destroy the freedom of men. And how do "terrorists" who worship either Mohammad or money do this? Their first target - as President George W. Bush said - is always the legal foundations and "rule of law" of the society. And but for the brave souls on September 11th who said in unison "Let's roll", the first targets of terror would have included the capitol building - the very fountain of our legal system.

     Those terrorists were willing to die to kill innocent people for their false "faith" in order to destroy the seat of what they perceived as an "evil" government. Our government was to them "evil" only because they perceived America as it is portrayed by Hollywood in movies and television sagas such as "Dallas". And they believed we represent an "evil" government because America supports Israel and was founded on Judeo-Christian principles.     But they knew they could only destroy our nation by attacking and decapitating the head of this huge giant called "America". They sought to destroy our nation's capitol - the very foundation of our nation's laws and the basis of our legal profession¹. Of course, there is nothing new about this approach to wealth and power - whether for religious or personal gain.

     Not surprisingly, another terrorists, Adolf Hitler, said: "I shall not rest until every German sees that it is a shameful thing to be a lawyer."² Hitler also knew that lawyers "guard the bridge between freedom and tyranny";³ that lawyers bridge the gap between "haves and have nots"; and that lawyers gap the tunnel between injury and compensation. Good lawyers are really revolutionists, freedom fighters, and "equalizers."⁴ They are avengers who redress wrongs, guardian angels who protect us, and equalizers who level the playing field for the weak and innocent.     And lawyers are responsible as officers of the court and "knights of the rule of law" to protect all individual rights and freedoms - yes, as much as it turns our stomachs - even the rights of those terrorists and others probably guilty.⁵ Lawyers do this because they believe that the "rule of law" will ultimately create a more just and responsible society in the end. Lawyers are always challenged to give form and meaning to liberty, justice, and equality. And the desire of any lawyer should be to restore hope and human dignity to any victim of abuse and greed - whether they get paid for it or not. Yet lawyers are not only enforcers, they are also architects.

     Lawyers build a freer, fairer, and more open society. In the final analysis, if they do their jobs right, they create a safer world. Unquestionably, some lawyers have caused manufacturers to make safer products, industry to provide safer work places, insurers to be aware of good faith requirements, governments to follow laws, and even professionals to be aware that negligence and violations of trust will not be tolerated. As a result of their efforts on behalf of victims, our air is cleaner, our water more drinkable and our children better protected from unsafe toys and products. These results occurred not because polluting industries or tobacco companies charitably changed their ways. It was because lawyers successfully forced these changes in courtrooms throughout America.     And lawyers representing consumers today now exercise more clout than ever. More importantly, lawyers who are truly "knights of the rule of law" have never been concerned for their own welfare in our legislatures as statesmen or on the various benches as truly unbiased judges. These champions of justice have always changed our precious America and our great State of Arkansas for the better. Consequently, ATLA at least annually does its best to honor these great men and women who serve our State.

     Yet we must all be students of history. We must realize the importance of encouraging more successful, qualified and experienced lawyers (who are not desperately in need of a job) to become our champions as legislators or judges. And at a minimum, lawyers in our organization should take on indigent injured workers in Arkansas. We must remember that the ability to make such dramatic improvements was not always as true as it is today in our "open" society. Once upon a time not too long ago, things were much different.     For example, in the early 1900's when my grandfather, now deceased, was actively practicing law in El Dorado, Arkansas, lawyers representing consumers had little recourse for their clients. Then jury verdicts and court judgments devastated many victims who deserved but did not obtain a fair and just compensation for their losses.  A case in point: we now know that the sinking of the Titanic was caused by unwarranted pride and gross violations of the most basic rules of safe seamanship. In fact, one of my ancestors, then a young man with a bright future, had just married and taken his young bride for a honeymoon cruise. It turned out to be the Titanic's last voyage. Both were lost at sea and never found.     But did you know that after 1,517 innocent people died, each of the victims' families to this day have only received an average of about $64.00 as compensation for their loss? So what happened to cause such a terrible injustice to those innocent people? The injustice occurred because of a phenomenon that continues now to grow in our State if allowed to go on unchecked.

     Huge corporate power (such as we see in Wal-Mart today), and monopolies and trusts then ruled the political powers and judicial framework of those early days of the industrial revolution. Lawyers such as my grandfather were good Americans who believed in a democratic form of government as Abraham Lincoln said "of the people, by the people and for the people". They cared about our blessed America and loved their country as shown by their dedication and loyalty in the world wars they fought side-by-side with other Americans - my grandfather in WWI and my father in WWII.     But the truth is: the lawyers of that day were not doing an effective job. They were not consistently forcing fair accountings for gross negligence and abuses of power brought about by the greed of big businesses. These businesses were allowed to put in office their "political hacks" and "judicial appointees" without much of a challenge.     These political and judicial servants of big business were men who could not otherwise make a decent living on their own and needed those jobs - even at the price of their own integrity. The disaster of the Titanic is an example where ordinary men and women paid the ultimate price for gross negligence. And their families were not fairly compensated.

     Of course, it was not because lawyers of that day were not trying. They just were not effectively able to rid society in that day of a scheming evil. They had no ATLA or other sources of "helping hands" available to assist them and encourage them. Likewise, unless we are willing to pick up the mantle and take on the challenges of today, the same evils will again escalate in "The Natural State".

     I'll never forget as a young teenager missing my father for a number of months when he was working sixteen hour days. During that time, my father single-handedly took on one of the largest and most powerful corporations in Arkansas - the Arkansas Louisiana Gas Company. ARKLA Gas's huge monopolistic practices of manipulating the rates for gas charged to consumers disturbed him. And as the young city attorney of El Dorado, Arkansas, he was going to try to do something about it. Through litigation and discovery, Dad found that ARKLA was clearly unreasonably manipulating their formulas to increase their profits from gas without regard to the actual expenses and without regard to the hardships that those high prices caused the average homeowner.

     However, my father - now deceased - lost this case before the Public Service Commission after a long and hard-fought battle. Soon after this loss, just months before he had his first heart attack in 1965, one of the members of the Public Service Commission who originally heard the case complimented him on the excellent job that he did. But this Commissioner also told him in private that his vote for ARKLA was in large part because he did not care to withstand any opponent sponsored and funded by the then Chairman of the ARKLA Board, Mr. Whit Stevens. He told Dad, "I'm just too old to start another career and I need this job." You may feel distain for that commissioner. But how do you feel about politicians and judges today who refuse to do what is right because they "need this job"?

     Years ago when I had the privilege of serving as President of the National Organization of Social Security Claimant's Representatives (i.e. NOSSCR), I warned the national membership in the "President's Letter" section of our magazine of the numerous books and business articles then plainly displayed on many airport bookshelves blatantly suggesting that businessmen should target judges and politicians and buy their favor in order to gain advantages and stop what they perceived were "unjust results" in the legal system. These "unjust results" were simply requiring them to fairly account for their wrongs.     Just a few years later, we all saw big business insisting on "tort reforms" throughout the United States and openly backing various judges and political candidates who would never forget "who'd brung 'em to the dance".     But for our unusually effective and tireless Executive Director, Carol Utley, and others like her in our organization going to the Arkansas legislators during sessions and always insisting on being the "voice for the voiceless", we would now have tort "deformity". These "reforms" were intended to keep the indigent and innocent out of the personal injury courtroom and limit their rights without any just cause. The only reason for this "reform" was to allow the businesses to "better compete against foreign countries" that have no protection for its citizen workers. They wanted to increase their profits at the expense of workers. They did not want to have to account for victims of their negligence.⁶

     But there is another group of people that need our help today besides personal injury victims - Arkansas injured workers. The "terror" that Arkansas workers must face if injured on the job has caused just as many deaths and pain over the years as the "9-11 tragedy". And why are so many unwilling to come to the aid of these victims of a "terror" just as significant - albeit over a longer period of time. Surely you also have heard from some of the thousands of honest workers daily injured in unsafe factories or sweatshops wanting your help. But they can't find effective and competent counsel. If they find one, they will have to wait at least eight weeks or so to see a lawyer already inundated with the needs of these victims.     If you listened, you would have heard their frustrations with adjusters who keep interfering with effective medical help and who continue to "doctor shop" until their "medical expert" finally "sings the music placed before him or her" and "confirms" this injured worker really doesn't need surgery or medical help. Or if he does need surgery, their "expert" is willing to say that the worker's problems really relate to previous arthritic conditions. The fact that the injured worker never had any symptoms previously is irrelevant to them.

    Consequently, these workers are justifiably terrified of an on-the-job injury because they know from their observations of earlier injuries of other employees that their employers will get rid of them "as fast as a used Dixie cup". Because of this fear of financial ruin, they many times don't even report their injuries and "tough it out" or minimize their injury so that they won't risk being mocked by their employer or an adjuster or worse. Their greatest fear is that the employer will find an "excuse" to fire them. And then they will be blackballed by other employers because of their injury and have no job whatsoever.     Because they have no one to help them, these honest men and women in our State are at the mercy of insurance adjusters who are trained to act as though they were "gods". These adjusters continue to "short-change" workers and interfere with effective medical care by "doctor-shopping" until they find a doctor who will release the worker back to work. Or the adjuster may simply stop the meager WCC benefits just because they have "control of the purse-strings" and wish to force the injured worker living check-to-check back to work.

     Companies such as Wal-Mart and other self-insured companies have found that there is little reason to be concerned even though the Arkansas Worker's Compensation Commission has a legal duty to protect workers from their abuses.     Even though it's "mission statement" (like Ivorian law) says they want to "serve the people" of Arkansas,⁷ we have seen the Commission under its present Chairman is more interested in serving the proverbial "900 pound gorilla" i.e. the nickname of Wal-Mart in financial circles because of its ruthlessness toward any competition.

     For example, Eileen Harrison, an administrative law judge, was fired without any cause and barely was allowed to clean out her desk. Yet our State newspaper reported that the State of Arkansas had to pay $125,000 last year to settle a federal lawsuit filed by Judge Harrison because discovery disclosed that she was terminated when Wal-Mart's attorney, Steve Carter, "pressured commission Chairman Eldon F. Coffman of Fort Smith to fire Harrison, one of ten administrative law judges, who hear worker's claims."⁸ The "real message" being sent by Chairman Coffman to the other administrative law judges was clearly the "message of the jungle". That message was plainly as follows: "If you want to keep your jobs, you'll forget the little working man or woman with no political power or voice and bend to the wishes of large companies like Wal-Mart when deciding cases." That is the real message being sent by Chairman Coffman. What other reason could there be for some lawyers who have a large volume of worker's compensation cases never winning a single case for as long as one year.     Unfortunately, Judge Harrison dared to faithfully adjudicate and follow her oath of office without concern for the political strength of the party in order to follow the written "mission" of the Commission. She found out the hard way that our State Commission is really bent toward following the "law of the jungle" - i.e. helping our State's big businesses at the expense of what is perceived as politically insignificant workers.

     Further, neither adjusters nor many of our State Legislators nor even some remaining judges care that the injured persons are victims of their employer's safety violations or negligence. Indeed, our State laws have no relevant provisions that really result in protection for workers from safety violations. In fact, there is no longer even any possibility for an employee to exact any accounting whatsoever for their employer's gross safety violations and wrongdoings.⁹ This "terror" happened in our recent past with the passage of Act 796 of 1993 and it will surely continue to grow unless we are willing to become part of the solution rather than continue as part of the problem.

     Do you realize that the original organization which later became our American Trial Lawyers' Association was at first just a group of lawyers representing injured worker throughout the United States? Perhaps we need to look again to our roots and enlist ourselves in the fight for those who have no ability to defend themselves.

     The original Arkansas worker's compensation Act in this state was passed by initiative act by labor. For years, our "one man" Commission¹⁰ and the courts incorrectly interpreted the Act to require "computer justice" to injured employees. For example, if the injured worker's doctor assessed an impairment rating of 10% for a broken back, the court would award the worker 10% of 450 weeks. That would equate to the worker getting only 45 weeks of permanent partial disability - a weekly check 66.66% of his normal weekly earnings. This amount did not take into account the effect of the injury on his or her ability to earn. Therefore, a professional whose income would be affected little - if at all - would get the same amount of money as the illiterate man working in the log woods in south Arkansas unable to make any living from the day of his back injury.

     My father, James V. Spencer, Jr., now deceased, challenged this misreading of the statute in the case of Glass vs. Edens.¹¹ As a result of his efforts, the courts finally recognized that you must look at "disability" beyond the mathematical formulae that the insurance industry insisted upon and look to the person's age, education, past relevant work and transferable skills.     Unfortunately, however, our laws still favor "computer justice" for what is called "scheduled injuries" such as carpal tunnel.¹² Employers in their rush to be able to compete with foreign cheap labor push workers to the brink requiring such speed and endurance that bilateral carpal tunnel and other devastating injuries to limbs are now a common problem. Yet we still give them "computer justice" no matter what their age, education, past relevant work or whether or not they have transferable skills to a lighter job or can do any job. The only exception to this rule is the worker's ability to prove themselves permanently and totally disabled - a rare occurrence that happens only if the worker is almost confined to a bed.

     Why? Wal-Mart and others hire expensive investigators who will "snoop" with their video cameras into the personal lives of workers taking such dramatic footage as, for example, the worker getting in and out of their vehicles going to stores and other activities required to live. Supposedly, this proves they can work. Truthfully, it only proves that they are not yet dead. Yet great significance is placed upon these required activities by some judges.

     I was asked to write an article which could be used as a primer on Arkansas Worker's Compensation practice. Hopefully, that will be forthcoming later if I am allowed the privilege. But there are so few of us handling worker's claims that my first purpose must be to challenge my brothers and sisters in the law here in Arkansas to "wake up" and become a part of the solution to this "terror" to our State's workers. If we do not, we will watch the pendulum continue to swing back again to that unfortunate condition once a part of our blessed State at the turn of the last century - the "law of the jungle". My article, therefore, must be a plea and a challenge to you the Arkansas lawyer to remember these victims of "terrorism" by such abusive companies as Wal-Mart, Inc.

     After twenty-seven [27] years of practice in this area, I believe that just as many deaths and painful experiences have happened here in Arkansas as were witnessed on September 11th in New York. The only difference between New York and Arkansas "terrorism" defined above is that the deaths and injuries have happened over a long period of time. And since there are no cameras and little attention to their plight, many in powerful positions have only given "lip service" to the victims involved.

     In fact, most corporate and self-insured employers during their seminars mock all injuries as being fake or exaggerated. In a recent case of mine, for example, an insurance company spent approximately $15,000 on investigators and over $50,000 on a defense lawyer when the case could have settled for half of that amount. The medical records in this case clearly portrayed objective basis for a favorable finding and the shoulder injury was stipulated as compensable. So why would they spend so much money to "win"? Because they know that the worker has no money for either lawyers nor "experts" and they desperately want to inflict "terror" on any worker in their plant or company who would dare file a claim or report an injury. The also want to discourage and drive claimant's lawyers still "hanging on" to their worker's compensation practice. If you honestly think about it, nothing could be as devastating to the average worker in Arkansas than to totally lose his or her home and car and sense of financial security and independence.

     Do our laws offer the worker any protection from an Arkansas injury? The answer lies in the fact that our State consistently ranks first in safety violations because of the horrible state of our worker's compensation laws. The safety laws on the books in reality protect and encourage sweatshops and unsafe working conditions in our State.¹³

     We need to be reminded that if we are to be called "guardian angels" or "knights of the rule of law", we must stand for the many unfortunate workers who are injured and then abused by our system. Even though we might make more money in a private practice or in other areas of law, we must attack these injustices. We must run for the Legislature and for judicial positions. And at the very least, we must begin and continue to practice in this area of the law.     No one will say that it is easy. It is difficult when some of the few lawyers who still represent claimants have never won a single case before certain administrative law judges for as long as a year at a time.   But we must not fail in our sworn duty as officers of the court and yes even as Christian men and women who believe in defending the innocent.¹⁴ We must not allow our distain for these judges and politicians (who should have difficulty sleeping at night as they continue to court the affections of the rich and powerful at the expense of the poor and needy) to "win".

     Although there are many exceptions to this observation by one who has practiced in this area of law for 27 years, the average Arkansas worker is many times at the mercy of corporate and insurance "terrorists" who wish to treat the injured worker as just another disposable commodity and allow their disabilities to fall upon the shoulders of all federal taxpayers instead of abusing wrongdoers who caused the injury in the first place.¹⁵   But if we fail to meet this challenge to represent these needy people, you and I are just as guilty as the persons we despise. If we fail to meet this challenge, we no longer should have standing to criticize the health care professionals who either refuse injured workers his or her care or give opinions known to him or her to be slanted in favor of a finding of no compensable injury in order to guarantee future referrals and income security.   To do nothing as a lawyer because there is little income in this type of practice is just as immoral as the desperate judge who finds against the claimant in order to preserve his or her job security.¹⁶

     It is my hope and prayer that you will join the few of us still representing these people and refuse to give up to the "official bullies". Just like the Ivorian people, we may be injured or even killed (at least financially) in the process. But as a group, we hope to preserve the little sanity that still remains for the injured worker in Arkansas.   We continue to pray for strength to tear down the typical mockery and "law of the jungle" mentality common among those men and women in high places who should know better. These unfortunate victims of corporate greed and abuse are truly foreigners to the very complex and frustrating laws. There is no way for the injured worker in this State to understand the language of worker's compensation laws. There are so many built-in pitfalls for workers in a system which calls itself created for "humanitarian objectives".¹⁷ They need an experienced interpreter like you. If they are to have any chance to win, they desperately need us.

     Behind the veil of protection given by the present worker's compensation laws,¹⁸employers are literally getting away with murder. The written words in our State's compensation laws are no better than the Ivorian governments assurances of safety and justice.     Surely you have also heard these cries for help from those injured and killed in our State. Why can't we - like the Ivorian people - rid our State of the "old trolls under the bridges" who would abuse the very people they swear to serve in order to benefit the very rich and powerful. Otherwise, we have no right to complain about the "law of the jungle" presently growing in our State. We who still refuse to quit pray that you will join us in this honorable fight to correct these common injustices. After all, it really is the right thing to do.

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