The Grunge Pilgrimage

Growing up as the younger brother, I was exposed to whatever my older sibling listened to as he was coming of age in the early ‘90s. MTV still had music (who remembers Headbanger’s Ball and Alternative Nation), and NewsBreaks were brought to you by Kurt Loder. This was the heyday of grunge music, and the epicenter of it all was in Seattle, WA.

The musicians of the era had a way of expressing themselves through music that meant something to me, as if certain songs were written with me specifically in mind. Everyone else I know who loves this music feels similarly.

So when I had the chance to go to Seattle for the 2022 AAJ Summer Convention, I wanted to explore a little deeper into the grunge scene, or what was left of it. A daily hive website suggested the following places:

1. Central Saloon, 207 1st Ave S, Seattle, WA 98104;

2. Re-bar, 1114 Howell St, Seattle, WA 98101;

3. Viretta Park, E. John Street at 39th Avenue E, Seattle, WA;

4. Marco Polo Motel, 4114 Aurora Ave N, Seattle, WA 98103;

5. El Corazon, 109 Eastlake Ave E, Seattle, WA 98109;

6. London Bridge Studio, 20021 Ballinger Way NE suite a, Shoreline, WA 98155;

7. Linda’s Tavern, 707 E Pine St, Seattle, WA 98122; and

8. The Museum of Pop Culture, 325 5th Ave N, Seattle, WA 98109.

Two fellas from Alabama took the pilgrimage with me. We had no idea what to expect. Our first stop was Viretta Park, which is an unofficial Kurt Cobain memorial. What we didn’t know, was that Cobain lived next door and wrote several songs on the benches in the park, seen below:

This is one of the Alabama fellas who made the pilgrimage with me.

Another similar bench was dedicated to Layne Staley, the Alice in Chains frontman who passed on April 5, 2002:

Our next stop was London Bridge Studio. When we got there, the outside looked like a bleak industrial building, and was closed. So word to the wise: don’t go on your grunge pilgrimage on a Sunday. We later found out the studio gives tours for $60.00, but we didn’t have time to make it back. The significance of the studio is the many albums it recorded there, including:

• Demo # 1 - Alice in Chains (1987);

• Shine EP - Mother Love Bone (1989);

• Louder than Love - Soundgarden (1989);

• Apple - Mother Love Bone (1990);

• Facelift - Alice in Chains (1990);

• Temple of the Dog - Temple of the Dog (1991);

• Ten - Pearl Jam (1991);

• Sap - Alice in Chains (1992);

• Singles: Original Motion Picture Soundtrack (1992);

• Blind Melon - Blind Melon (1992);

• Dirt - Alice in Chains (1992); and

• Jar of Flies - Alice in Chains (1994).

Andrew Wood was the frontman for Mother Love Bone. When he passed on March 19, 1990, the Temple of the Dog album noted above was recorded as a tribute to Wood. The remaining members of Mother Love Bone formed “Mookie Blaylock,” which later became known as “Pearl Jam.” El Corazon was where Mookie Blaylock first performed, but it is not there anymore.

Re-bar is where Nirvana got kicked out of their own watch party when Nevermind was released. I went to the address but never found it.

Soundgarden and Alice in Chains were frequently in the rotation at Central Saloon, which is also where Sub Pop Records allegedly first heard and signed Nirvana. I was not able to make it over there.

The Marco Polo Hotel is one of the last places Cobain was seen alive. So was Linda’s Tavern. I did not make it to the hotel, but did get a chance to go to Linda’s Tavern. It was my kind of hole-in-the-wall, with low ceilings and an outside back porch.

The conference had an event at the Museum of Pop Culture, which was the final stop on the pilgrimage. At the time the article was written in February of 2021, a Pearl Jam exhibit was displayed. That night, the museum featured Jimi Hendrix and Nirvana.

Both exhibits were must sees; simply incredible.

I thought about this post a lot on the way home. I kept coming back to one conclusion. These individuals and bands personified in their music what it means to be misunderstood, giving an outlet to millions who feel the same way, which I suppose we all do at some point. That kind of connection is timeless.

Public Protection Law

At the Chaney Law Firm, we believe in public protection law. What on earth is public protection law, you ask? It’s a process in which all of us are involved in some form or fahsion, most of us in the form of jury service.

I recently tried a case where I thought the Judge had an excellent explanation to the jury of their role. He explained in no other branch of government, except the judicial branch, does the average person play a role outside of election day. He explained we elect legislators to act on our behalf in the legislative branch to make policy. But, the Judge explained, if you express your concerns to your legislator, the legislator does not necessarily have to listen, or do anything you ask. The same holds true for our elected executives. The Judge explained it is only in the judicial branch, where the average person has the ability to sit on a jury, that regular everyday people can decide what conduct is acceptable, and have their voice heard loud and clear.

Public protection law involves public safety, changing reckless and purposeful misconduct, providing access to justice, and maintaining the independence of the judicial branch of government.

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PUBLIC SAFETY

Our society operates smoothly because we share a common set of rules everyone follows so all of us are safe. For example:

• We have a right to trust other drivers to follow traffic safety rules so people aren’t hurt in motor vehicle collisions.

• We have a right to trust trucking companies will do their due diligence when hiring drivers, and properly train and supervise them.

• We have a right to trust doctors will follow the safety rules when performing medical procedures.

• We have a right to trust attorneys to follow safety rules so we are informed of our options that will better help us decide our legal matters.

• We have a right to trust manufacturers will spend a little more money to make their products safe rather than put their profits over us.

• We have a right to trust insurance carriers will follow good-faith claim handling rules to ensure policyholders are adequately protected.

• We have a right to trust businesses and other landowners will build and keep their premises safe for their customers.

When someone is harmed because these safety rules aren’t followed, the wrongdoer commits a “tort,” which is a civil wrong. The purpose of tort law is to make an injury victim whole, and to deter wrongdoers from similar conduct. [1] There are typically four things that must be shown in court to hold these wrongdoers accountable. These include whether the safety rule applied to the wrongdoer, whether the wrongdoer violated the safety rule, and whether the safety rule violation caused harm. These three concepts are known as “liability.” [2] The last thing that typically must be shown is amount of the harm.

One aspect of public protection law is about enforcing safety rules to prevent future harm. A rule violator who does not cause harm, like running a stop sign with no other people around, while punishable by criminal law, cannot be held civilly responsible since there is no harm involved. In this respect, the Arkansas Supreme Court has stated as follows:

“Actionable negligence itself is a relational concept. There is no such thing as ‘negligence in the air.’ Conduct without relation to others cannot be negligent; it becomes negligent only as it gives rise to an appreciable risk of injury to others. Acts done in a vacant field or by a lone traveler on a highway may not be negligent; the same acts done in a crowded city or in heavy highway traffic may well be negligent. The concept of actionable negligence is relational because an act is never negligent except in reference to, or toward, some person or legally protected interest.”

— Hill v. Wilson, 216 Ark. 179, 183, 224 S.W.2d 797, 800 (1949).

The risks from the wrongdoer’s action defines how careful they should be in doing the action; so when the wrongdoer’s conduct creates a more dangerous situation toward other people, they must be more careful to prevent harm. [3] Since the purpose of safety rules is to protect us all from harm, the injured party must show the wrongdoer’s action created possibilities of danger so many and apparent that the safety rule should have protected the injured party against the wrongdoer’s conduct, even when the harm was unintended. [4]

This is public protection law. Local juries get to decide how much harm could have been caused by safety rule violations as part of the relational evaluation required in every case. This is a decision on the value of our societal rules on a case-by-case basis in which juries use their “common sense, common experience, and [apply] … the standards and behavioral norms of [their] community.” [5] What a country we live in that allows our local communities to decide which societal rules are important to us.

CHANGING PURPOSEFUL AND RECKLESS MISCONDUCT

Public protection law is also about changing purposeful and reckless misconduct for the public good. While the law allows juries to return verdicts to make injury victims whole, it also allows juries to return verdicts for the purpose of punishing and deterring wrongdoers from reckless or purposeful misconduct. [6] These type of verdicts are known as “punitive damages,” which are allowed since big businesses and corporations cannot be put in jail.

In this respect, the Arkansas Supreme Court acknowledged simply making a policyholder whole from insurance carrier fraud in an occasional lawsuit would not deter the carrier, or others, “from seeking a wrongful gain by similarly victimizing hundreds of other policyholders. Punitive damages will have a deterrent effect in a case of this type.” [7] For example, a punitive damages verdict was upheld where a carrier attempted to shut down a Little Rock physician’s physical therapy practice by decreasing the amount of claims the carrier had to pay. The evidence supporting the verdict included the carrier’s claim practices and use of a computer program, illustrating a program of “economic warfare” against people making claims for connective tissue injuries, part of which included low-ball offers and the threat of protracted litigation to discourage these claims. [8] Putting a stop to such purposeful and reckless misconduct is public protection law.

Likewise, in a case where State Farm refused to settle a claim made against one of its policyholders, a Utah jury returned a $145 million punitive damages verdict, which was upheld on appeal by the Utah Supreme Court in 2001. You can read about the State Farm’s conduct leading up to this verdict here. State Farm appealed to the U.S. Supreme Court, and argued the punitive verdict violated State Farm’s 14th Amendment due process rights. The Court agreed and decided punitive verdicts most likely conform to due process when they are single digit multipliers of the verdict to make the injury victim whole. This case changed the way State Farm does business because it now has a company business practice of paying verdicts over its at-fault insureds’ policy limits. Changing such purposeful and reckless misconduct is the purpose of public protection law.

Many politicians, big businesses, as well as the State and National Chamber of Commerce have been trying to impose a cap on punitive damages for years, if not decades. You can read more about this here. The effect of such caps will allow big business and corporations to factor in harming people as a cost of doing business. The threat of punitive damages serves as an incentive for big business and corporations to not harm people in the pursuit of profit. Thus, a purpose of punitive damages is public protection.

There are already rules in place to measure whether punitive damages are too much in any given case, which make caps unnecessary. These rules include the following:

1. The degree of reprehensibility;

2. The ratio between the harm or potential harm sustained and the punitive damages verdict; and

3. The difference between the remedy in factor #2 and comparable civil penalties authorized or imposed in similar cases. [9]

Factor #1 looks at the enormity of the misconduct, as some conduct is more blameworthy than others. Intentional conduct designed to economically harm someone, targeting financially vulnerable people, and whether the wrongdoer is a repeat offender are relevant considerations. [10]

Factor #2 addresses whether there is a reasonable relationship between the amount it took to make the injury victim whole, and the amount of the punitive damages verdict. A relevant consideration is not only the harm that resulted, but also the harm likely to result from the misconduct. Reasonableness is always part of this factor’s decision-making formula. [11]

Factor #3 looks at statutes imposing fines for the misconduct. The purpose of this factor is to determine whether less drastic remedies are available to deter the misconduct in question. [12]

These three factors are considered by courts to protect wrongdoers from excessive punitive verdicts. A cap on punitive verdicts is a form of corporate welfare having the effect of giving businesses the ability to pencil in how much it will cost them for intentionally hurting people.

Consider the following the example, which is an excerpt from the Arkansas Insurance Department’s 2017 Annual Report for property and casualty insurance:

Topping the list with a nearly 10% market share, the report indicates State Farm’s property and casualty insurance company made over $485 million dollars in premiums in Arkansas for 2017. Do you really think a punitive cap of $1 or $5 million dollars, which represents 0.20% and 1.03% of State Farm’s annual revenue in 2017, is going to deter them from doing business as usual? While $1 or $5 million dollars may be a lot of money to you and me, it is a slap on the wrist for a company making $485 million dollars per year in the state of Arkansas alone. The same analogy holds true with any company.

In addition to the above, any type of one-size-fits-all damages cap restricts the local control juries have to decide what conduct is acceptable within their own communities. Since all cases are different, imposing a cap takes away a jury’s right to determine the facts of the case before it. A damages cap is another way of bureaucrats, who will never hear the facts of an individual case, telling you facts don’t matter, and your jury service doesn’t matter. This undermines the ability of regular everyday people to protect themselves from purposeful and reckless misconduct, and significantly weakens public protection law.

ACCESS TO JUSTICE

In 2003, the Arkansas Bar Association petitioned the Arkansas Supreme Court to form the Arkansas Access to Justice Commission. Since then, the Commission has undertaken initiatives about the following topics:

• Expanding pro bono recruitment and participation;

• Implementing court assistance projects;

• Effecting changes to statutes and court rules that impact access to justice;

• Educating the public about the need for civil legal aid; and

• Increasing financial resources available to provide legal assistance to low-income Arkansans.

One of the changes to court rules impacting access to justice was a change to the Arkansas Rules of Professional Conduct, which allows attorneys to provide short-term legal services without an expectation of continued representation. The purpose of the rule change was to permit attorneys to represent under served communities with their legal issues and give them access to justice. [13] Improved access to justice is public protection law.

One of the ways people have access to justice is through the method by which attorneys are paid. In tort cases, attorneys are paid through a contingency fee, which provides access to justice to regular everyday people who otherwise would not be able to afford an attorney who charges by the hour. The way it works is fees and expenses come out of a percentage of a clients’ total recovery, if any. So attorneys working on a contingency fee rise and fall together with their clients.

The contingency fee keeps the courthouse doors open for people hurt through no fault of their own by safety rule-violating wrongdoers, because it allows everyday hard-working people to stand toe-to-toe with multi billion dollar corporations in a courtroom. Thus, limiting contingency fees limits access to justice, and limits public protection law. If you believe the attorney you’re talking to is charging too much, we encourage you to shop around. This is a better option than imposing a one-size fits all rule limiting the contingency fee for all attorneys, since it would also limit access to justice, the communities’ ability to seek redress for wrongs, and public protection law.

INDEPENDENCE OF THE JUDICIARY

According to the framers of the Constitution, judicial independence from the other branches of government was a critical part of the separation of powers. One federal judge described judicial independence in this way:

“The Framers were particularly concerned about guarding against a too powerful Legislative branch, not an overreaching Executive. They also wanted to ensure that the rights of the minority were protected against a tyranny of the majority. Their answer was to provide for an independent federal judiciary that would keep the other two branches in check. The Framers believed an independent judiciary was central to a republican form of government and critical to fairness and impartiality.”

— Honorable Paul Friedman, U.S. District Judge for the District of Columbia

In this manner, an independent judiciary is by definition public protection. These concepts were described in an article in the American Bar Association Journal a few years back, as follows:

“Characteristic of an independent and strong judiciary is that its courts are free of and unfettered by politics and political interference, and its decisions are based on legal merits rather than what is popular or politically expedient. Indeed, when to do so is consistent with the rule of law, courts must resist and withstand the pressures of political and public opinion in order to remain fair and impartial.”

— Honorable Robert M. Bell, Maryland Court of Special Appeals, ret.

The most extreme example I can think of where a court was subject to the pressures of political and public opinion was in Nazi Germany. In 1934, Hitler decreed only members of the Nazis party could be judges. Do you really think these judges were impartial?

The above picture is meant to be Roland Freisler, and if you were before him, you had a 90% chance of being sentenced to life in prison or death. Wikipedia uses Freisler’s court as the definition of a “Kangaroo Court.” While the example is extreme, it makes the point of why judicial independence is so important in a free society.

Judicial Independence Under Attack in Arkansas

In 2000, Arkansas voters approved Amendment 80 to the Arkansas Constitution, which confirmed our judicial branch’s authority to make rules of “pleading, practice, and procedure.” All this means is our Supreme Court is in control of regulating the procedural rules of our court system, including the rules of evidence, professional conduct, civil procedure, etc. These procedural rules are not matters of public policy; our elected state senators and representatives are in charge of making public policy by enacting laws.

In 2003, the Arkansas General Assembly passed Act 649, which was known as the Civil Justice Reform Act (“CJRA”). The Arkansas Supreme Court struck down many provisions of the Act because it sought to enact procedural rules, rather than public policy. [14] The Court held other parts of the CJRA were unconstitutional because it violated the Arkansas Constitution’s prohibition on damages caps to persons or property. [15]

These holdings prompted the State Chamber of Commerce, the nursing home industry, and other big business leaders to take away Amendment 80’s rule-making authority from our Supreme Court. In the 89th General Assembly in 2013-14, the joint subcommittee responsible for referring out constitutional amendments voted against referring an amendment that would have put a price on life, and taken rule-making control away from our Supreme Court.

Undeterred, the same interest groups gathered signatures in a ballot initiative with the same goal after the 90th General Assembly in 2015-16. This proposed amendment, known as “Issue No. 4,” would have imposed an arbitrary cap of $250,000 on “non-economic” damages in medical injury lawsuits (including suits against nursing homes), imposed a cap on the contingency fees attorneys could charge, and taken away the Arkansas Supreme Court’s exclusive ability to make procedural rules governing our court system. In a challenge to the sufficiency of the ballot title, the Arkansas Supreme Court held a critical term in the ballot title, “non-economic damages,” was left undefined. Accordingly, the Court ordered the Secretary of State from counting or certifying votes for the proposed amendment.

In the 91st General Assembly in 2017-18, legislators referred a more aggressive constitutional amendment to the voters. This time, the amendment would have changed the Arkansas Constitution in the following ways:

1. A cap of $500,000 for non-economic damages in any lawsuit resulting in injury or death. "Non-economic" damages were defined as "damages that cannot be measured in money, including without limitation any loss or damage, however characterized, for pain and suffering, mental and emotional distress, loss of life or companionship, or the visible result of injury;

2. A cap of $500,000 for punitive damages unless the facts showed a wrongdoer intentionally pursued a course of conduct causing injury or damage, and the intentional conduct caused damage to an injury victim;

3. Give the General Assembly the authority to enact laws amending, repealing, or adopting on its own initiative rules of pleading, practice, or procedure, which supersede such rules adopted by the Arkansas Supreme Court. This section explicitly stated these rules include the presentation and admission of evidence; and

4. A cap of 33 1/3% for contingency fees of an injury victim's attorney of the net amount recovered, regardless of how the recovery is obtained.

A legal challenge to the amendment was ultimately successful. The Arkansas Supreme Court held the amendment violated the requirement in Article 19 § 22 of the Arkansas Constitution that referred constitutional amendments be single subjects so voters don’t have to choose between parts of an amendment they like, and parts they don’t.

All of these amendments, if passed, would have significantly weakened public protection from corporate wrongdoing, put a price on life, restricted access to justice, and taken away the independence of our judiciary. It reminds me of the following quote:

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

— Benjamin Franklin, 1755

Weakening public protection law accomplishes exactly what Benjamin Franklin was trying to say. Public protection law is the core of our civil justice system, and is designed to hold wrongdoers accountable for their actions. Weakening the civil justice system in the guise of “safety,” takes away both liberty and safety, regardless of how it is accomplished, whether it be through damages caps (which limit people’s ability to decide what conduct is acceptable within their communities), limiting access to justice, or taking away the independence of the judiciary. This is because when big businesses can harm people as a line-item cost of doing business, none of us are safe from their conduct. Examples abound, and here is a great one. [16]

Regular everyday Arkansas people have plenty of common sense to decide our civil disputes. Based on the information before them, they know when something is right or wrong, and act accordingly. The public is only protected where the public has a say in the type of protection it desires. There is no need to overhaul the entire system, limit access to justice, jeopardize the independence of our judiciary, and limit the role average people play in our government by having big brother unilaterally decide what conduct is acceptable within our own communities.

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[1] See City of Monterey v. Del Monte Dunes, 526 U.S. 687, 727, 119 S. Ct. 1624, 1647, 143 L. Ed. 2d 882, 917 (1999) (Scalia, J., concurring); Minneci v. Pollard, 565 U.S. 118, 127, 132 S. Ct. 617, 624, 181 L. Ed. 2d 606, 614 (2012).

[2] See e.g., Jones v. McGraw, 374 Ark. 483, 486, 288 S.W.3d 623, 626 (2008).

[3] Palsgraf v. Long Island R. Co., 248 N.Y. 339, 344, 162 N.E. 99 (1928).

[4] Cobb v. Indian Springs, Inc., 258 Ark. 9, 23, 522 S.W.2d 383, 390 (1975) (Fogelman, J., concurring) (quoting Palsgraf, 248 N.Y. at 345, 162 N.E. at 101).

[5] W. Jonathan Cardi, ARTICLE:  Purging Foreseeability:  The New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739, 799 (April 2005).

[6] Bayer CropScience LP v. Shafer, 2011 Ark. 518 at 12-13, 385 S.W.3d 822, 831.

[7] Empl. Equit. Life Ins. Co. v. Williams, 282 Ark. 29, 30, 665 S.W.2d 873, 874 (1984).

[8] Allstate Ins. Co. v. Dodson, 2011 Ark. 19 at 21, 376 S.W.3d 414, 428.

[9] BMW of N. Am. v. Gore, 517 U.S. 559, 575, 116 S. Ct. 1589, 1598-99 134 L. Ed. 2d 809, 826 (1996).

[10] Id. at 575-80, 116 S. Ct. at 1599-1601, 134 L. Ed. 2d at 826-829.

[11] Id. at 580-83, 116 S. Ct. at 1601-03, 134 L. Ed. 2d at 829-31.

[12] Id. at 583-85, 116 S. Ct. at 1603-04, 134 L. Ed. 2d at 831-32.

[13] Ark. R. Prof. Conduct 6.5.

[14] Johnson v. Rockwell Automation, Inc., 2009 Ark. 241 at 8-10, 308 S.W.3d 135, 141-42 (holding non-party fault and medical cost provisions of the CJRA unconstitutional because these provisions were procedural, but upholding the CJRA’s end to joint-and-several liability).

[15] Bayer CropScience LP v. Shafer, 2011 Ark. 518 at 13, 385 S.W.3d 822, 831-32 (holding the CJRA’s punitive damages cap unconstitutional in violation of Ark. Const. Art 5 § 32, prohibiting damages caps for injuries to persons or property).

[16] See Schmidt v. Ramsey, 860 F.3d 1038 (8th Cir. 2017) (where a child was born with severe brain damage, the parents of the child brought suit against the doctors and hospital responsible for the child’s injuries, which resulted in a jury returning a verdict in the amount of $17 million dollars based on the needs of the child throughout her life. After the jury verdict, the trial court reduced its amount to $1.75 million according to the Nebraska Hospital Medical Liability Act (“the Act”), and the parents appealed the decision to the U.S. Court of Appeals for the 8th Circuit. The Court upheld the reduction, reasoning that 1) the hospital did not have to post an opt-out notice to patients who may fall under the Act; 2) the Act’s cap on damages did not violate the 7th Amendment of the U.S. Constitution because the Act did not determine damages in the first instance, it just imposed an upper limit on the determination; 3) the Act did not deprive the child of a vested property interest under the 5th Amendment to the U.S. Constitution; 4) the child failed to show medical malpractice victims will have difficulty in obtaining access to justice because of the Act; 5) the Act had a rational basis when passed and does not violate equal protection even though it treats catastrophically injured people differently than those without such injuries; and 6) the Act did not violate principles of substantive due process). For more information, see Hot Coffee, a documentary that came out in 2010 about these and other similar topics.

Protecting Policyholders from Insurance Carrier Fraud: Organizations That Can Help

What is the first image that pops into your mind when you hear the phrase “insurance fraud?” Is it someone committing arson, or damaging covered property to get insurance money? If it is, you’re not alone.

We’ve been conditioned to think of “insurance fraud” only occurring from people making claims. The National Association of Insurance Commissioners (“NAIC”) says “insurance fraud” occurs when “an insurance company, agent, adjuster or consumer commits a deliberate deception in order to obtain an illegitimate gain.” So the other side of the coin is also true: insurance companies also commit insurance fraud.

One example, explained below, spawned the birth of the American Policyholder Association, who’s mission is to promote honesty, integrity, and best practices for insurance carrier claim handling.

While you don’t hear about insurance carrier fraud as much, it happens. What follows is just a few examples:

• In 1990, the chief executive of a large Texas insurance carrier was arrested in Barbados (shown below) for insurance fraud exceeding $50 million by continuing to rake in premiums with no ability to pay claims.

• In 1991, a carrier got caught shaving off an average of $5,800 on each claim per year on over a million claims that resulted in millions of revenue because the carrier refused to pay legitimate claims.

• In 1998, the FBI raided a carrier’s headquarters and found the carrier altered engineering reports to systemically underpay claims resulting from the Northridge earthquake in southern California. The photo below shows a small part of the damage. A former carrier employee joined a civil suit against the carrier, and said altering reports was a standard practice, “not isolated occurrences,” according to a statement published by the Los Angeles Times. The former employee complained about the alleged practice to carrier officials, who later denied it had occurred.

• On June 3, 2000, it was reported a carrier’s former employees came forward after the suicide of one of their co-workers to hold the carrier accountable for its actions that led to co-worker taking her own life. The allegations against the carrier included:

  • Being told by management to “take that route,” referring to suicide after the employees reported an out-of-control workload;

  • Piling more work onto one employee after the carrier’s own doctor diagnosed her with carpel tunnel syndrome;

  • Being fired for reporting to management the carrier was paying less than fair value on certain claims; and

  • A program fraudulently discouraging people from hiring attorneys to help them with claims, which instructed adjusters to lie to people by telling them the same amount of money would be paid regardless if an attorney was involved, when in fact, the carrier’s own research showed the opposite.

• In 2003, the United States Supreme Court reversed a $1 million compensatory and $145 million punitive damages verdict on behalf of policyholders due to a carrier’s failure to settle claims made against the policyholders arising out of a motor vehicle collision in which the carrier failed to settle. The Court held single digit ratios between punitive and compensatory damages are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution, than awards with ratios in a range of 500 to 1 or 145 to 1. After being remanded to the Utah Supreme Court, a $9 million punitive damages judgment was entered in favor of the policyholders. The carrier’s conduct leading to the original verdict included the following:

  • The carrier challenged the admissibility of evidence in its direct appeal to the Utah Supreme Court (and lost), including the carrier using predictable experts, engaging in hardball litigation tactics, and discrimination on the basis of sex and race. Campbell v. State Farm Mut. Auto. Ins. Co., 2001 UT 89, 70, 65 P.3d 1134, 1155 at n. 13 (“Campbell”);

  • Despite assurances from the attorney hired by the carrier to represent the policyholders their assets were safe and did not need to retain separate independent counsel, the attorney informed the dismayed policyholders after the verdict “you may want to put a for sale sign on your property to get things moving.” Id. at 7, 65 P.3d at 1142;

• There was also evidence the carrier instructed its attorneys and claim representatives to employ “mad dog defense tactics,” and use the carrier’s resources to “wear out” opposing attorney’s by prolonging litigation, making merit-less objections, claiming false privileges, destroying documents, and abusing the law and motion process. Id. at 31, 65 P.3d at 1148;

• The Utah Supreme Court also noted the difficulty of changing decades-long policies of fraudulent and dishonest claim handling that had become ingrained corporate culture, and also noted the harm perpetrated by the carrier was extreme in light of the statistical probability the carrier would likely pay such damages only once in 50,000 cases; Id. at 62, 65 P.3d at 1154.

• The U.S. Supreme Court noted the carrier implemented a “Performance, Planning, and Review” (“PP&R”) policy in 1979 with the explicit objective of using the claims process as a profit center on 1st and 3rd party claims, which functioned as an unlawful scheme to delay benefits owed to consumers by paying out less than fair value in order to meet preset, arbitrary payout targets designed to enhance corporate profits. Campbell, 538 U.S. 408, 431, 123 S. Ct. 1513, 1527-28, 155 L. Ed. 2d 585, 610 (2003);

• The carrier attempted to insulate itself from liability by systemically destroying internal company documents that might reveal its scheme, even though it had a historical department containing a copy of all past manuals on claim-handling practices and the dates each manual was changed. Other evidence showed claims management ordered the destruction of a wide range of damaging material in past bad-faith litigation, and went through great lengths to stop the creation of these documents in the first place. Id. at 435, 123 S. Ct. at 1529, 155 L. Ed. 2d at 612.

• Other common tactics used by the carrier included falsifying or withholding evidence in claim files, unjustly attacking the character, reputation, and credibility of a claimant, and making notations to that effect in the claim file to create prejudice in the event the claim ever came before a jury. Id. at 432, 123 S. Ct. at 1528, 155 L. Ed. 2d at 610; and

• Testimony from former employees demonstrating the carrier put them under “intolerable and recurrent pressure to reduce payouts below fair value,” and at times “forced [them] to commit dishonest acts and to knowingly underpay claims.” Ample evidence showed the carrier’s policy was purposefully designed to “prey on consumers unlikely to be able to defend themselves,” such as the elderly, the poor, and those least knowledgeable about their rights. Id. at 433, 123 S. Ct. at 1528, 155 L. Ed. 2d at 611.

• In 2004, a carrier generated nearly $4.32 million of $4.8 million dollars in campaign contributions to an Illinois Supreme Court candidate. In 2005, after the Judge won the election, he was the deciding vote to overturn a billion dollar class action judgment against the very same carrier. In 2018, while denying any responsibility, the carrier settled a racketeering suit against it for 25% of the original judgment. Full details can be found here.

• In 2008, the United States Supreme Court decided a West Virginia case under similar circumstances as the Illinois judge described above, and held due process under the 14th Amendment requires a judge to recuse where a serious, objective risk of actual bias is present, such as a litigant before the judge contributing such a high percentage toward the judge’s election campaign.

• In 2006, a three-month investigation into an auto carrier’s claims practices revealed the carrier was systemically deceiving policyholders from hiring attorneys to represent their interest in the hope the carrier would save money. As a result of this conduct, the Washington Supreme Court ruled the carrier was engaged in the unauthorized practice of law, and held the carrier to the same standards as a practicing attorney.

  • Similarly, in 2002, the Arkansas Supreme Court held discouraging policyholders from hiring an attorney was sufficient evidence of “ill will.”

• In 2007, an 18-month investigation found injury victims who challenged carriers’ offers in motor vehicle collisions with little property damage would be left with no option but to go to court and be drug “through the wringer.” This became known as the “MIST” defense from the following slide that was one of the 12,500 documents referred to below:

The investigation revealed part of the carrier’s overall strategy was to make fighting the carrier so expensive and time consuming attorney’s helping injury victims would give up. One such injury victim gave her experience of being in one of these collisions and sustaining a herniated disc and muscle tears resulting in medical expenses and lost wages totaling about $15,000. Due to the carrier’s attorney emphasizing the MIST defense and the jury assuming the injury victim had already been compensated by the carrier (which she had not), the jury returned a verdict in the amount of $1,500.

The investigation found the MIST defense was carefully developed to make injury victims look like they are trying to defraud the carriers, rather than the other way around. The scientific validity of using a “no damage, no injury” type argument has been tested and found to be a myth. There are a number of risk factors for short and long-term consequences predictive of whether someone is hurt in a collision, which cannot be accurately applied in a one-size-fits-all manner as the carrier’s strategy implemented. Other results of this investigation are included below:

• In 2008, several executives were convicted on charges of conspiracy, mail fraud, and securities fraud for improperly inflating the financial numbers of a carrier.

• From 2008-2010, a carrier’s license to sell insurance in Florida was suspended for failing to comply with a subpoena from the Florida Office of Insurance Regulation (“OIR”). The Florida Court of Appeals noted the carrier’s potentially criminal failure to provide the OIR with the requested documents prevented an investigation into whether the carrier was defrauding its policyholders. This resulted in the carrier making public nearly 12,500 documents produced in an overhaul of the company’s claims department in the mid-1990s, which showed the carrier adopted a “zero sum economic game” whereby the carrier aggressively pursued increased profits at the direct expense of its policyholders. A national market conduct examination followed the release of these documents.

  • As a result of this investigation, the Consumer Federation of America (“CFA”) reported in 2012 carriers manipulate data by using computer claims evaluation software to broadly underpay claims, and thereby increase corporate profits. The report found the software program utilized by carriers, which generates a dollar figure for intangible elements of damages based on similar claims, is capable of being manipulated based on how much revenue the carrier wants to make.

  • In 2011, the Arkansas Supreme Court described this conduct as “a program of economic warfare regarding regarding small soft-tissue-bodily-injury claims” that showed “a willingness on the part of [the carrier] to use low benefit offers and the threat of protracted litigation as tools to discourage these small claims.”

• In 2010, a Rutgers Law Professor wrote a book titled “Delay, Deny, Defend,” detailing the systemic fraud committed by carriers, which gives the complete picture of how carriers cheat (including several of the examples given herein), and what you can do to protect yourself.

• In 2013, several of the nation’s largest mortgage insurance carriers agreed to a $15 million dollar fine to resolve allegations from the Consumer Financial Protection Bureau (“CFPB”), who found homeowners’ mortgage insurance was inflated in some instances due to back-room deals struck between banks and the carriers. The carriers were paying the banks a portion of their profits, which violated the federal Real Estate Settlement Procedures Act, which the CFPB is in charge of enforcing. The effect of these kickbacks was found to raise the price of insurance.

• In 2015, an executive of a significant engineering firm was arrested for the firm generating sham reports so the insurance carrier who retained it could purposefully deny or underpay claims as a result of hurricane Sandy, seen below:

This resulted in the government getting involved, and questioning how Federal Emergency Management Agency (“FEMA”) was overseeing flood insurance. When the Vice President of Claims for the carrier was compelled to testify whether he knew the reports were shams, he took the 5th Amendment. A FEMA adjuster admitted to being pressured to systemically underpay claims. The carrier’s lawyers were even fined more than $1 million dollars for the cover up. 60-Minutes covered the story, as follows:

• In 2015, a carrier agreed to pay $44 million to settle allegations by the federal government the carrier had issued fraudulent crop insurance policies ineligible under the U.S. Department of Agriculture’s federal crop insurance program (which is in place to protect farmers suffering crop losses due to natural disasters). Other allegations included the carrier backdated policies, forged farmers’ signatures, accepted late and altered documents, whited out dates and signatures, and signed documents after relevant deadlines.

• In 2016, 60-Minutes reported 25 of the nation’s largest life insurance companies agreed to pay $7.5 billion in back death benefits, but 35 carriers refused to pay anything, and remained under investigation for not providing benefits when the beneficiary was unaware of a policy (which is common). The Florida insurance commissioner led a national task force investigating the industry, and found the carriers had actual knowledge in their files people had passed away, yet the carriers’ neglected to initiate an investigation and pay claims.

• In 2018, a CBS investigation found up to 66% of the funds in the National Flood Insurance Program (run by FEMA), which is to pay claims, goes instead to private insurance companies and their hired attorneys to fight flood claims.

• In 2019, a report showed auto carriers are using law enforcement to intimidate their own policyholders to keep claims costs down, even for Vietnam veterans. Financial incentives provided to to scores of police departments, prosecutors, and other public agencies by carriers encourage these departments to focus on insurance fraud, a crime that has traditionally not been a priority for local law enforcement. In some cases, these giant carriers even cover the salaries of dedicated prosecutors, detectives, and investigators whose caseloads consist primarily of referrals from those same companies, which results in dozens of premium-paying customers across the country facing jail time for doing nothing more than filing a claim for damage to their property.

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The widespread fraud in the claims process after Hurricane Sandy resulted in the formation of the American Policyholder Association, a nonprofit watchdog group who’s mission is to protect policyholders from insurance carrier fraud.

The APA is a non-partisan organization that transcends party lines. The executive director is a Marine Corp veteran who was a financial advisor when hurricane Sandy displaced his family. Despite having enough flood insurance for the loss, it took seven years for him to get his family back in their home because of the carriers’ fraud described above. He realized there were thousands, if not more, who were worse off financially than he who were being victimized by unscrupulous and immoral insurance carriers. That is when he decided to do something about it for all the policyholders unable to stand up for themselves against the vast financial strength of the carriers, which resulted in the APA being established, further explained below:

If you’re interested in joining the APA’s fight against insurance carrier fraud, click here.

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Another great insurance consumer organization is United Policyholders, which was co-founded in 1991. The spark for UP was an urban area wildfire that destroyed 3,000 homes in Northern California. In the aftermath of the disaster, the residents struggled with serious and unexpected gaps in their insurance coverage and a claim process that was often adversarial (which is against industry standards, customs, and practices). Similar to the APA, UP was formed to help level the playing field between carriers and policyholders.

UP’s work is threefold. First, it provides tools and resources for solving insurance problems after a loss or other adverse event. Second, it promotes disaster preparedness and insurance literacy through outreach and education in partnership with civic, faith based, business, and other non-profit associations. Third, it advances pro-consumer laws and public policy related to insurance matters. Their website has a large collection of studies, reports, and articles on insurance issues and industry practices, a few of which can be found below:

• Essential Protections for Policyholders, which discusses a roadmap every state can follow in improving homeowners insurance;

• Underinsurance in mature economies: reasons and remedies, confirming many behavioral factors can actually be influenced or even reshaped by the insurance industry’s actions;

• Shining a Light on Insurer Misconduct, discussing an NAIC model act and its design to illuminate how the cloak of secrecy in a carrier’s disclosures in civil litigation, which would also provide compelling evidence of information whose existence carriers have long denied;

• The Regulation of Insurance Claim Practices, describing the failure in the insurance market for claim practices, the failure of the regulatory responses to that failure, and the ways in which litigation can provide a partial corrective;

• (You’ve got to) fight for your right (to independent counsel). Who’s defending who?, discussing the “tripartite relationship” between an at-fault policyholder, their attorney, and the insurance carrier;

  • In 2011, the Arkansas Supreme Court decided in our firm’s favor in a pro-bono appeal on this issue. A liability carrier employee, who was also a lawyer, attempted to represent its at-fault driver in a lawsuit brought by one of our clients for injuries sustained in a motor vehicle collision. The Court held the carrier’s in-house counsel’s representation was prohibited by statute because it would have allowed the carrier to unlawfully practice law, and recognized the inability “of any person to faithfully serve two masters.”

• 50 State Survey of Bad Faith Insurance Laws and Remedies, discussing the law in all 50 states that defines rules that apply to carriers’ claim practices and the available remedies for when these rules are violated;

• The Truth About Car Insurance, discussing research about factors that raise rates and what you can do to keep yours low;

• Insurance Law as Public Interest Law, suggesting that insurance laws and regulations serve the public interest by enabling insurance to assist the very same unrepresented and underrepresented groups that public interest lawyers are often concerned with: the poor, minorities, the elderly, consumers, employees, and other marginalized groups;

• Low Ball: An Insider’s Look at How Some Insurers Can Manipulate Computerized Systems to Broadly Underpay Injury Claims, discussing how insurance carriers use computer programs to reduce the market value of claims;

• Punitive Damages Against an Insurer for the Bad-Faith Handling of a First-Party Claim, discussing a categorical list of articles and case studies related to punitive damages against a carrier for the bad faith handling of a first-party insurance claim; and

• Demonstrating and Preserving the Deterrent Effect of Punitive Damages in Insurance Bad Faith Cases, illustrating the social desirability of the punitive damages doctrine by demonstrating its efficacy in reforming unfair insurance claims practices.

Here are UP’s resources for Arkansas. If you aren’t an Arkansas resident, you can access UP’s state-by-state database here. If you’re interested in supporting UP’s fight against insurance carrier fraud, click here.

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Stop and think about the need for these two organizations for a second. It is against the law to not have certain types of insurance, such as liability car insurance. Since the law requires every driver to have insurance, a carrier will get your premium dollars or you’ll be breaking the law seen below:

You realize others may not comply with compulsory liability insurance laws, or may not have bought enough insurance, so to be careful you purchase your own personal insurance. You realize another carrier may not treat you well, but are sure your own carrier is honorable enough to keep its word. After all, they’re “like a good neighbor,” and since you have their coverage, you’re in “good hands” and are adequately “protected from mayhem.” But when mayhem arrives, you discover the good hands of your good neighbor spent a lot of effort building a fence instead of a pathway to help. Your disintegrating peace of mind makes you wonder what your premium dollars purchased.

You never thought it would be you, but you find yourself in the position of needing an attorney to protect you from your own insurance company. As if being run over once was not bad enough, which altered your ability to enjoy your hobbies, work, and care for your family, you discover the litigation process is like being run over a second time. The integrity of everyone helping you is consistently challenged as the carrier’s lawyers make it seem like you’re a liar, cheater, faker, and what is wrong with America. As you get more discouraged by the litigation process, you wonder if this is really what the Civil Justice System looks like?

And then it hits you like a ton of bricks. The carrier does this to everybody in the hope policyholders or other claimants just give up. At that point you realize your case is bigger than just you. You realize by standing toe to toe with the carrier and proceeding to a jury to decide your case, you’re standing up for all of those other people the carrier bullied into giving up who might not have had the stamina or wherewithal to stand up for themselves.

You become thankful to live in a country where your state and federal constitutions give you, a person with average to limited means, the ability to stand up to a carrier making revenue in the billions of dollars per-year, by having a jury hear your case.

And rather than accepting the carrier’s insulting low-ball offer, you know its better for a jury to tell you the value of your claim rather than accepting an offer systemically designed to be underpaid. Because all you want is a fair shake, you can live with whatever the jury decides, know the Civil Justice system should work this way, and hope it does.

The 6 Pioneers: an addendum to the Impact of Attorneys in the Civil Rights Movement

A few years ago we made a post about the impact of attorneys in the Civil Rights movement. I recently attended a function at the University of Arkansas School of Law, where a professor mentioned the room of the 6 Pioneers on the first floor of the law school. The event was on a Saturday, and the room was locked, but it got me interested in looking into it further.

A few days later on January 20, 2020, I read an excellent article in the Democrat-Gazette about Scipio Africanus Jones. The article talked about our current congressional delegation seeking to have a post office named for Mr. Jones, who was a trailblazing black attorney. Mr. Jones represented five African American men convicted of murdering a white man in the Elaine Massacre, which occurred on September 30/October 1, 1919. Experts believe about 200 people were killed, five of which were white, after a shooting at a black sharecroppers’ union meeting on the night of September 30.

Mr. Jones’ case, Moore v. Dempsey, went all the way up to the United States Supreme Court in 1923. 261 U.S. 86, 43 S. Ct. 265, 67 L. Ed. 543. Perhaps one of, if not the most famous United States Supreme Court Justice, Oliver Wendell Holmes, wrote the opinion. The appeal argued the convictions of the five men were the result of the pressure from a lynch mob, and thus the men were not afforded due process of law.

Portrait of Oliver Wendell Holmes, who served on the U.S. Supreme Court from December 4, 1902 to January 12, 1932

According to Judge Holmes’ opinion, which restated the facts as sought in the petition to the Court, the Arkansas Governor appointed a Committee of Seven to investigate the Elaine Massacre and the following events. Newspapers published daily inflammatory articles. The only thing preventing a lynch mob from murdering the five men was the Committee’s promise to the community “the law would be carried out.” In doing so, the Committee tortured black witnesses until they agreed to testify the five men were guilty of the murder. A grand jury, including one member of the Committee, returned an indictment based on the coerced testimony. No African Americans were permitted to participate on the grand jury or the petit jury.

While the five men had appointed legal counsel, the mob threatened anyone interfering with five men being found guilty. No change of venue was sought, no juror qualifications were challenged, and no request for separate trials of the five men were made. No preliminary consultation with the accused occurred, and no witnesses were called in defense of the accused, including the accused themselves. The entire trial lasted about 45 minutes, and the jury returned in less than five minutes with guilty verdict. Moore, 261 U.S. at 88-90, 43 S. Ct. at 265-66, 67 L. Ed. at 544-45. In the appeal, Mr. Jones argued on behalf of the the five men that nobody on the jury could have voted for an acquittal and continued to live in Phillips County, and if for some reason an acquittal occurred, none of the five men would have escaped the lynch mob.

Judge Holmes’ found the facts as alleged by the five men were corroborated by requests to the Governor a year after the convictions from several organizations in Philips County urging him not to interfere with the execution of the men. The five men argued the Governor appeased the mob’s spirit by not halting the executions. Moore, 261 U.S. at 91, 43 S. Ct. at 266, 67 L. Ed. at 545.

Relying on Frank v. Mangum, 237 U.S. 309, 335, 35 S. Ct. 582, 590, 59 L. Ed. 969, 983 (1915), Judge Holmes’ stated as follows:

“[I]f in fact a trial is dominated by a mob so that there is an actual interference with the course of justice, there is a departure from due process of law; and that if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law.”

Moore, 261 U.S. at 91, 43 S. Ct. at 266, 67 L. Ed. at 545.

The authority for a violation of “due process of law” Holmes referred to was the 14th Amendment (as opposed to the 5th Amendment). Judge Holmes dissented in the Frank case, as follows:

“Whatever disagreement there may be as to the scope of the phrase ‘due process of law,’ there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard. Mob law does not become due process of law by securing the assent of a terrorized jury. We are not speaking of mere disorder, or more irregularities in procedure, but of a case where the processes of justice are actually subverted. In such a case, the Federal court has jurisdiction to issue the writ [of habeus corpus]. The fact that the state court still has its general jurisdiction and is otherwise a competent court does not make it impossible to find that a jury has been subjected to intimidation in a particular case. The loss of jurisdiction is not general but particular, and proceeds from the control of a hostile influence.”

Frank, 237 U.S. at 347, 35 S. Ct. at 595, 59 L. Ed. at 988. The Frank Court found no violation of the 14th Amendment’s due process guarantee under similar circumstances as Mr. Jones’ clients.

Returning to the five men represented by Mr. Jones, Judge Holmes concluded the whole proceeding against them was a mask: an irresistible wave of public passion swept counsel, jury, and judge to a fatal end, and the State Courts failed to correct the wrong. Judge Holmes concluded “neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing to the petitioners their constitutional rights.” Moore, 261 U.S. at 91, 43 S. Ct. at 266, 67 L. Ed. at 545. Accordingly, Judge Holmes remanded the case to the lower federal court to find whether the facts, as alleged by the five men, were true and whether they could be explained in order to leave the convictions undisturbed.

The legal precedent established by the work of Mr. Jones and others, i.e., application of the 14th Amendment to prohibit state action in conflict with the Federal Constitution, later became a major building block of the Civil Rights Movement that eventually led to the U.S. Supreme Court to abolish the “separate but equal” doctrine in Brown v. Bd. of Educ., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). Our prior post detailed the work of other prominent African American attorneys between Mr. Jones’ case and the Brown decision.

According to Judith Kilpatrick, it was Mr. Jones and another African American attorney who encouraged L. Clifford Davis to enroll at the University of Arkansas Law School following World War II. Judith Kilpatrick, Desegregating the University of Arkansas School of Law: L. Clifford Davis and the Six Pioneers, 58(2) The Arkansas Historical Quarterly 123, 125 (Summer 2009). I cannot do Ms. Kilpatrick’s work any justice in a blog post, and encourage any reader of this post to click on the link above. A few points from Ms. Kilpatrick’s work are found below.

Ms. Kilpatrick details the events of how Mr. Davis, while not attending the school himself, opened the door for Silas Herbert Hunt to become the first African American in the south to attend an all-white institution of higher learning since Reconstruction. Ms. Kilpatrick also details the experiences of Mr. Hunt, Jackie Lamond Shropshire, George Howard, Wiley A. Branton, Sr., George W.B. Haley, and Christopher Columbus Mercer in becoming the 6 Pioneers to integrate the UA law school. Parts of the legal careers of Mr. Howard and Mr. Branton were explored in our prior post.

University of Arkansas School of Law, 1940.

Law schools teach by the Socratic method, whereby the professor calls on students to explain cases to illustrate a specific legal point. Professors expect the students to be able to recall the facts of each case, and the court’s analysis in reaching its conclusion. All professors are different, but typically have a method for calling on students. For example, in a class of 100, each student may know the date of when it’s their turn to be called on, depending on the specific professor’s teaching methods, which thereby makes it easier on the student to be prepared for their day. It is possible to discuss 5-10 cases per class period, possibly more depending on the professor.

One of the conditions of Mr. Hunt’s enrollment was having to be taught in a segregated classroom. Mr. Shropshire followed Mr. Hunt in 1948. By comparison to today’s standards, due to being segregated, Mr. Hunt and Mr. Shropshire had to be able to discuss every case in every class period and in several different classes. Mr. Shropshire recalled having to study until 3 or 3:30 am to be prepared for each class period. The individualized attention from professors led Mr. Hunt’s white counterparts to join him by the end of his first semester. Kilpatrick, Desegregating the University of Arkansas School of Law: L. Clifford Davis and the Six Pioneers, at 133-34. The segregated classrooms ended in the fall semester of 1949. Ms. Kilpatrick did an excellent job detailing other difficulties of the six pioneers.

Ms. Kilpatrick explained the motivation behind each man’s decision to go to law school in Arkansas. All but one of the six was a World War II veteran. Mr. Haley recalled seeing white prisoners of war eating in a part of a restaurant he and his friends had been asked to leave; Mr. Branton had been charged and convicted of voter fraud after teaching uneducated African Americans how to exercise their right to vote. Kilpatrick, Desegregating the University of Arkansas School of Law: L. Clifford Davis and the Six Pioneers, at 147.

Just as anyone might, the six just wanted to go to school close to home, which was cheaper than going out of state, and they got to learn the law alongside those whom they would be practicing. For anyone wanting to practice law, these considerations should be given a tremendous amount of weight as they are just as relevant today as they were in the late 1940s and early 1950s. For other reading on African American attorneys in Arkansas, Ms. Kilpatrick wrote another outstanding article detailing the efforts of these attorneys before 1950. We highly encourage reading both of Ms. Kilpatrick’s works for a greater understanding of how African American attorney’s impacted the Civil Rights Movement.

Union Pacific's Big Boy No. 4014 comes through Arkadelphia

When they were little, my nephews were obsessed with the Thomas & Friends series, which gives personalities to all types of steam engines. If you’re wondering whether I watched it without them, I confess I did. The Alec Baldwin and George Carlin narrator episodes were the best.

Based on my experience with trains growing up, and then my nephews interest in the Thomas & Friends series, I got really excited when I heard about a real-life steam engine coming through town. On November 13, 2019, Union Pacific’s Boy Boy No. 4014 steam engine came through Arkadelphia as part of the 150th anniversary of the completion of the transcontinental railroad. If you really want to treat yourself on learning about the challenges of the transcontinental railroad, watch Hell on Wheels, which is available on Netflix. This show does an excellent job depicting the political, physical, and safety challenges of extending the railroad from coast to coast. Here is a ton of good information on the transcontinental railroad.

There are only seven Big Boy steam engines left around the country, and No. 4014 is the only one operational. This train was delivered to Union Pacific in December of 1941, and was in service until December of 1961. Seen below is No. 4014’s arrival and departure from Arkadelphia on its way to North Little Rock.

Crowds of people have lined the railroad tracks to see No. 4014, and Arkadelphia was no different. Our office manager and I met a couple from Huntsville, Alabama on the old Ouachita River Bridge in Arkadelphia who told us they were also willing to travel several hours to see the enormous steam engine.

Getting to see a real-life steam engine up close felt like a bygone era to me when presidents campaigned from the back of a train as seen below.

If you’re wanting to see No. 4014 in person, keep these safety tips in mind:

• Stand at least 25 feet away from the railroad tracks;

• Railroad tracks, trestles, railroad yards, and and right-of-ways are private property; do not trespass;

• Never assume railroad tracks are inactive; always expect a train.

You can track where No. 4014 is headed next by clicking on this link.

I tried to enlist help to determine whether No. 4014 fit the mold for Edward, Gordon, Murdoch, or Neville. Can you help determine which Thomas & Friend train fits the mold?