Over the past two years, the average media consumer would be under the impression that the nation is awash with lawsuits, greedy trial lawyers and out of control juries eager to punish corporate America with million-dollar verdicts. The airwaves and newspapers have been flooded with hundreds of stories on the legal system, with common references to the justice system as a lottery for the undeserving and most lawsuits as “frivolous.” And many of the stories carry glaring factual errors. A few examples:
In November 2002, viewers of “60 Minutes” learned that Mississippi was the nation’s capital of “jackpot justice,” where “plaintiffs’ lawyers have found that juries in rural, impoverished places can be mighty sympathetic when one of their own goes up against a big, rich, multinational corporation.” In the story, Morley Safer interviewed a local florist who had received a multi-million dollar settlement in a lawsuit over the diet drug Redux. The unnamed florist alleged that trial lawyers were bribing jurors to give big awards. “The jury awarded these people this money because they felt as if they were going to get a cut off of it,” he told Safer.
At the time of the episode, the U.S. Chamber of Commerce was spending $100,000 on an advertising campaign in Mississippi to push for a cap on damages in lawsuits against corporations. That fact wasn’t included in the story even as it quoted the chamber’s recent “warning” to businesses to avoid Mississippi because of its legal climate. Several Mississippi jurors sued CBS for libel over the broadcast. Meanwhile, the florist, Beau Strittman, retracted his comments about the payoffs, saying, “I just said it as a joking statement.”
In June 2003, publishing mogul Morton Zuckerman wrote a column in U.S. News and World Report that bemoaned the state of litigious America. He wrote, “A woman throws a soft drink at her boyfriend at a restaurant, then slips on the floor she wet and breaks her tailbone. She sues. Bingo – a jury says the restaurant owes her $100,000. A woman tries to sneak through a restroom window at a nightclub to avoid paying the $3.50 cover charge. She falls, knocks out two front teeth, and sues. A jury awards her $12,000 for dental expenses.” Zuckerman had to issue a correction because both lawsuits were whole-cloth fabrications that had been circulating in other media outlets for more than a year.
That same month, based on data provided by the American Medical Association, Time magazine’s cover declared that lawsuits were forcing thousands of doctors to leave the profession. “To doctors…the main problems are frivolous lawsuits and multimillion-dollar judgments awarded for tragic but sometimes unavoidable outcomes.”
In August 2003, a General Accounting Office study found many of the media reports and the AMA’s claims about doctors quitting the profession because of the “malpractice crisis” were false. For instance, in Nevada, one of the AMA’s “crisis” states, the GAO found that of the 34 ob/gyns reported to be closing shop due to malpractice concerns, eight were still practicing and three stopped practicing due to reasons other than malpractice. Researchers concluded there was no evidence that doctors nationally were abandoning their practices at all much less for reasons related to malpractice suits, which had actually declined over the past few years.
A December Newsweek cover story warned: “Lawsuit Hell: Doctors. Teachers. Coaches. Ministers. They all share a common fear: being sued on the job.” The article claimed that the country is suffering from an “onslaught of litigation” that costs Americans $200 billion a year.
The article failed to mention, among other things, that in 1997, Congress passed the Volunteer Protection Act, immunizing volunteers such as Little League coaches from lawsuits for negligence, making the featured coach’s fears largely unfounded. The $200 billion figure cited as the cost of the legal system comes from a discredited insurance industry “study” that defines the legal system as everything from medical bills and lost wages of people forced to miss work because of injuries to insurance industry salaries, overhead and investments.
Newsweek also failed to disclose that its parent company had a financial interest in seeing lawsuits restricted. Post-Newsweek Stations Inc. has been sued a number of times for employment discrimination and had been hit with an $8.3 million verdict in 1999. The primary source for the “Lawsuit Hell” story, Phillip Howard, works for the law firm of Covington & Burling, which represents Newsweek in those suits.
Academic researchers have done a tremendous amount of empirical study that contradicts many of the claims of a “lawsuit crisis,” but none of it made it into the stories cited above. For instance, despite the alarmist headlines, tort lawsuit filings nationally actually have decreased 9 percent since 1992, according to the National Center for State Courts. The numbers are even more pronounced when stacked up against population growth. In Texas, where the population jumped 23 percent between 1990 and 2000, the rate of tort filings fell from 233 to 164 per 100,000 residents, a 30 percent decline. In California, the rate of filings plummeted 45 percent. As for the “legal lottery” described in Newsweek, a Bureau of Justice Statistics report found that in 1996, the “jackpot” really isn’t very large. The median punitive damage award was only $27,000.
Steve Brill first wrote about litigation myths back in 1986, when he traced several examples of the allegedly “frivolous lawsuits” for the American Lawyer magazine and found that many of them were simply urban legends. He says, “I had gone back through the archives of magazine, and every ten years, Time declared a “litigation crisis. But there was no crisis.” Reporters’ perpetuation of the litigation myths has become one of Brill’s pet peeves, even though, as a business owner himself, he supports legal changes that would protect businesses. “Reporters are basically lazy,” says Brill. “You can always find a ridiculous lawsuit to make the system look crazy.”
The skewed coverage of the legal system represents a victory in a sustained, 25-year public relations assault on the civil justice system by a highly organized movement funded by the insurance industry, tobacco companies and other corporate giants seeking to limit their liability for wrongdoing. The insurance industry launched the first concerted PR campaign in the early 1980s, with a series of ads in Newsweek and Time magazine designed to promote the idea of the lawsuit crisis. Under the heading “We all pay the price,” the ads claimed that lawsuits were driving ob/gyns out of business, shuttering local school sports programs, and scaring the clergy out of counseling their flocks. Then, as now, many of the lawsuit horror stories that turned up in the major media proved to be fabrications.
Since then, the rhetoric has only gotten more sophisticated as business groups have funded more than 100 think tanks and “grassroots” organizations devoted to portraying the legal system as out of control. Much of their message has been crafted with focus groups and sophisticated polling so that the results are tailor-made for mass media consumption. Web sites like the Manhattan Institute’s Overlawyered.com have made it even easier for reporters to find examples of crazy lawsuits (in fact, several of those featured in the Newsweek story are highlighted on the site). Tobacco companies alone spent $15 million in a single year during the industry’s campaign to push the “lawsuit abuse” message while fighting off smokers’ lawsuits, according to documents uncovered through the tobacco litigation and published by the Center for Justice and Democracy. Since 2002, the U.S. Chamber of Commerce, through its Institute for Legal Reform, has spent more than $60 million lobbying for lawsuit restrictions. The highly coordinated advertising campaigns and subtle media manipulation ensure that most Americans now take as a given that the legal system needs an overhaul.
Republican leaders have also recognized that legislation that would limit the earnings of trial lawyers would not only benefit the chronic defendants in corporate America. It would also strike a blow against the Democratic Party, for which trial lawyers represent the second-biggest group of donors. In 1997, pollster Frank Luntz coached Republican members of Congress, “Unlike most complex issues, the problems in our civil justice system come with a ready-made villain: the lawyer. Few classes of Americans are more reviled by the general public than attorneys…. It’s almost impossible to go too far when it comes to demonizing lawyers.”
The PR campaign has been highly effective. Between 1986 and 1999, according to the American Tort Reform Association, 30 states enacted restrictions on punitive damages capping the amount that can be awarded, and seven states had also capped noneconomic damage awards. Last year alone, 20 states passed more laws restricting citizens’ ability to hold corporations and other individuals accountable in court. Despite these fairly radical changes and ample evidence of the corporate media strategy behind it, reporters continue to perpetuate many of the myths about the legal system. In doing so, they have helped interest groups change the focus of public debate.
Rather than run stories about the predatory lending practices of finance companies that generate class action lawsuits, for instance, news outlets lead with stories about the size of jury verdicts and the portion that might go to the plaintiffs’ lawyers. Rather than write about the lack of health insurance that leads injured people to seek compensation through the courts, reporters focus upon the poor, rural juries that want to bankrupt honest doctors and businesses. Instead of focusing on the indifference of McDonald’s corporate management to customer injuries, the press has questioned whether Stella Lybeck was at fault for her injuries because she was dumb enough to try to drink hot coffee in a moving vehicle.
Michael McCann, director of the University of Washington’s Comparative Law and Society Studies Center, believes these stories catch on because the corporate backed “tort reformers” have done a spectacular job of creating a compelling narrative from lawsuits that fit reporters’ conception of conventional wisdom. He says that because reporters rarely cover civil trials, they are susceptible to the abstract stories of irresponsible litigants egged on by greedy lawyers. “That’s why Americans respond to this, because it’s a morality tale about the loss of personal responsibility,” McCann says. The coverage is not so different from the stories in the early 1980s about the welfare queens that turned out to be largely apocryphal but were part of a concerted assault on government programs for the poor. The welfare queen has simply been replaced by the irresponsible plaintiff.
One of the consequences of this kind of news coverage is that it may be creating a self-fulfilling prophecy. Americans may believe that the country is too litigious, not because of personal experience, as with the people featured by Newsweek (none of whom had ever been sued) but because of the media coverage telling them about the lawsuit crisis. Ironically, too, some academic researchers suspect that the skewed news coverage might actually then be making Americans more litigious even as they support measures making it harder for them to pursue legitimate cases in court.
In a 1997 article for the University of Wisconsin’s Institute for Legal Studies, Herbert Kritzer and J. Mitchell Pickerill wrote, “The effect of this rhetoric is to make people think that if anything goes wrong they can get significant compensation. The result is that lawyers spend many hours explaining to potential clients that this is simply not true.” Marc Galanter, a law professor at the University of Wisconsin, put it well when he wrote in a 1998 law-review article tracing litigation myths, “As in the case of chemical weapons, it is hard for those who launch media distortions to keep them away from their own troops.”
©2004 Stephanie Mencimer
During her Patterson year, Stephanie Mencimer, a Washington Monthly contributing editor, is investigating the myth of the frivolous lawsuit.