A Tort Protector’s Must Read: “Distorting the Law”
A Tort Protector's Must Read: "Distorting the Law"
It focuses on the tort "reform" movement's tactic of using "pop torts" or "oversimplified, moralistic characterizations of cases such as Stella Liebeck’s suit against McDonald's" to push their agenda of limiting access to the courts.
It is a must read for anybody who would like to understand exactly how and why the tort "reform" movement is misleading people about lawsuits and our civil justice system.
Luckily, instead of having to read the entire 346 page book, you can read a summary of the major points as chronicled in just a few pages in an interview with McCann by Tom Duffy for Lawyers Weekly USA (Nov. 22, 2004).
If you care about this issue, or are just curious what all the fuss is about, take ten minutes and read this article's sumamry of "Distorting the Law."
It's well worth your time.
Battle over tort reform is often fueled by media's misinformation
By Tom Duffy
Now in its second decade, the battle over tort reform continues to rage on - often fueled by misinformation that creates faulty public impressions, according to the authors of a new book that analyzes the way press coverage influences popular opinion of the civil justice system.
Spurred by the enduring legend of the McDonald's coffee case, the two professors - Michael McCann of the University of Washington and William Haltom of the University of Puget Sound - have conducted an in-depth analysis of press coverage over a 20-year period from 1980 to 1999. What they found was that there has been a measurable explosion in the coverage of civil litigation, but there does not appear to have been commensurate growth in the actual number of cases.
Their research also casts a spotlight on popular misperceptions of several high-profile lawsuits that have served as poster boys for tort reform. They found that legal information gets to the public largely through the lens of the mass media, and that the lens often has a distorting effect.
"Even when lawyers have been polled about where they learn what is going on in the legal system, they invariably say television and newspapers," said McCann, director of the Comparative Law and Society Studies Center at the University of Washington.
To describe this phenomenon, the pair have coined a new term: "Pop Torts," the oversimplified, moralistic characterizations of cases such Stella Liebeck's suit against McDonald's. They claim these tales are often far from accurate and are widely disseminated by the media in a way that dovetails neatly with the agenda of tort reformers.
The result, said Haltom and McCann, is that perception and reality are widely separated when it comes to the state of the civil litigation system, making rational debate about the topic nearly impossible.
McCann recently spoke to Lawyers Weekly USA about the findings presented in the new book.
Can we start by defining the litigation crisis?
The term litigation crisis refers to something that is very murky and very vague. There have been increasing allegations from politicians and pundits and editorialists that litigation is spinning out of control in American society. The verbs often used are "skyrocketing," "exploding," "mushrooming." The focus is on personal injury litigation, employee claims, discrimination claims. Wrongful discharge claims are often brought into that same charge.
Within this there are a whole variety of sub-claims. One is that frivolous litigation has exploded. And then there is the claim that the United States is the source of more litigation than any other country in the world. That's a very different kind of claim that is rarely backed up by any actual studies.
But clearly there are frivolous lawsuits.
The claim that there is too much frivolous litigation is difficult to address and I'll tell you why. One high-level national leader in the tort reform movement said to me, "If there is one frivolous lawsuit, that's too many." Well, who could possibly disagree? Of course there are frivolous lawsuits. There are unwarranted acts of greed and opportunism in every part of our life.
The point is that all these claims blur the larger question of whether personal injury litigation has increased dramatically in the last couple of decades. And is that a symptom or a cause of big problems in American civic life? The claim is that it reflects a breakdown in civic life, and that it's the result of excessive greed, lack of discipline, and opportunism by individual plaintiffs and attorneys and it's economically very costly.
Why study this area if a lot of academics have already gone over the same territory?
What we wanted to do is look at why is it these claims are so powerful, even when there is good evidence that provides solid reason for skepticism. What gives the allegations such resonance and endurance in American public life?
The book was inspired by the McDonald's coffee case. (See accompanying story.) We were interested in why it has such resonance, such endurance. We did a case study to see what people read about it, how often it showed up in the news and what people learned.
What we found was the stories that circulated about the case had certain features that fit closely with the anecdotes fabricated by tort reformers. This was relevant, because the simplistic, dramatized, distorted versions of the McDonald's coffee case seemed to be entirely the creation of the media, before the tort reformers could even spin the case.
Tell us how "Pop Torts" work.
Pop torts fit certain kinds of profiles. Reformers rely heavily on anecdotal stories about specific kinds of legal disputes that demonstrate this so-called widespread phenomenon of frivolous litigation. They usually involve individuals who purchased a product or undertook an action that harms the person. It is usually a reckless or stupid act like putting a cat into a microwave oven or using a lawnmower to trim a hedge. (McCann noted that both these "cases" are urban legends that have no apparent basis in fact.) The person harms him or herself and then tries to sue the manufacturer and thereby commits a second kind of wrong by displacing responsibility in an opportunistic way.
These stories are about people trying to make money off their own stupidity. They are anecdotes told in a couple of sentences and the best ones are recognizable by labels, like the burglar who fell through the skylight and sued.
We begin the book with the story of the psychic who was sued because she lost her psychic powers by being exposed to iodine dye during a CAT scan. In the story that is circulated, it is reported that she was awarded $1 million.
That's true, largely because there was documentation that the woman had an earlier reaction to iodine dye and she told the doctor about this before the scan. But the point is that the judge set aside the judgment and ordered another trial, which was dismissed soon after it began. The story was often repeated by President Reagan and other high-level officials who said that this was an example of junk science that subverted the courts - despite the fact that the woman never received a cent.
Your claim is that in the retelling, these stories become oversimplified in a way that can distort their significance?
We counted up dozens of stories that circulate through the mass culture. They crystallize the claim that civil litigation has spiraled out of control. They are sometimes based on actual events but are rendered in a way that is highly simplistic and usually leave out important facts and introduce new facts or readings of facts that are not really accurate. Many times we and others have made efforts to trace what they are based on and can find no actual event [such as the cat-in-the-microwave and hedge-trimming lawnmower cases]. It appears some are complete fabrications. Others are gross distortions.
Give us your best example.
There is the famous story of the burglar who falls through the skylight, falls on a knife and sues the homeowners for leaving the knife out. The actual case involved a teenager who was on the roof of a school and, by the best accounts we can find, was trying to redirect a light because they were trying to play basketball. And while he was on the roof he stepped through the skylight, which had been painted over black. So this may have been a trespasser, but it wasn't a burglar.
Secondly, the incident took place in a school and not a private home. And there had been a previous claim where someone else had stepped through one of these skylights that had been painted black, which made them invisible. So the school knew about it, which was an important part of the case. And there was no knife. So that's an example of the way a story bears some resemblance to the actual events. (The teenager was rendered quadriplegic in the accident and ended up settling with the school.)
But in many of these stories, even though they circulate widely, the lawsuits never get to trial or it does and the plaintiff doesn't win. For example, there is the case about the man who sued because of his addiction to milk. This received much play in the news and especially on late night talk shows. But the coverage ignored the fact that the man didn't have an attorney and the case went nowhere.
Part of your point is that our understanding of these stories shapes public and political opinion?
Our book is far less about the wild stories than the routine media translation of serious events into story lines that converge with and reinforce the negative, stigmatizing logic of the wild stories. We look at which stories reporters tell and how they tell them.
As we put it, the aberration is normalized. And this is done with a presumption of significance that is morally resonant but empirically suspect. We are concerned with the selective, morally loaded way that these cases are presented.
Is it possible to document whether the number of cases or the awards are actually rising?
Overall, there seems to be an awful lot of evidence to show that there has been no explosion of litigation or huge awards, at least by individuals suing professionals and companies about products. At the state level it varies dramatically around the country so any kind of generalization is very difficult, and it changes over time. In many, many states the total amount of litigation - claims or cases that go to judgment - has decreased. But there are pockets and small venues where there are very high rates of personal injury litigation.
There clearly was an increase in the 1970s having to do with expanded categories of claimants and remedies allowable under anti-discrimination law and reduction of hurdles faced by civil litigants. Also, there was the beginning of new uses of class actions by civil litigants.
But most of the claims of the tort reformers have been about the past 20 years.
Have the increases of the 1970s continued on some upward trajectory? There is no objective evidence to point to that. Any reasonable person who surveyed all of the evidence would conclude that the claims of the tort reformers are radically oversimplified and border on being just wrong.
Are there areas of litigation where there has been an increase in cases filed?
There has been one major change, and that is the rise of class action, mass torts such as asbestos, silicone breast implants and tobacco. But the interesting thing is those cases are almost never mentioned by the tort reformers. Most of the allegations are about individuals, not about class actions.
Why examine the role of the media?
Because public discourse is so heavily shaped through newsprint and television news. Law is a form of knowledge on which we all act. We use it to build our expectations of what other people do, our constraints about what we can do, our aspirations for what we want to achieve, all those things.
The interesting question is where does legal knowledge come from? Even when lawyers have been polled about where they learn what is going on in the legal system they invariably say television and newspapers. What we are trying to say in our book is that these moralistic anecdote-based characterizations of civil litigation have come to dominate modern culture, and the fact that they don't seem to be supported by dozens and dozens of empirical studies doesn't seem to decrease the power of that anecdotal knowledge at all.
What did you find?
The first thing to recognize is that there has been a dramatic increase of coverage of personal injury litigation from 10 to 20 articles a year in [five major national newspapers, including The New York Times] in the 1980s to 500 or 600 a year by the late 1980s and into the early 1990s. So the first thing to realize is that you're reading and hearing about personal injury litigation at a radically increased rate, even though the best evidence suggests there is not a great deal more activity in the courtroom. The true increase is in media attention to personal injury litigation.
There are two reasons. One is the tort reform movement. They are themselves becoming more prominent and alleging an increase in litigation, and our interviews with reporters say they became more aware of the issue through the tort reformers' claims.
Second is the rise of toxic mass torts (such as the asbestos cases) that do involve huge amounts of money and are newsworthy, but which are very few in number and don't have anything to do with individual rates of litigation. The mass media covers them because there is a lot of money at stake and it's a large number of people. So if you are reading the newspaper you are reading about it a lot.
Therefore it makes sense that people say there has been a radical increase in awards, even though there is no increase in individual lawsuits or significant increase in individual large awards.
But what does that have to do with people's attitudes about the stories?
Whether these stories are about individual cases or class actions, they are always about the money. Reporters choose to write about money because it grabs attention. It's parallel to blood and gore in crime cases. Money is the most defining characteristic in these stories and that only underlines that the story being told is about greed, and that fits the arguments of the tort reformers. So the media are unwittingly creating a picture of the legal system that fits very close to the critical and moralistic story of tort reformers.
How does the way news is gathered influence the way the stories are written?
The simple fact is that most reporters have very little time and little money to do their work. So they find out about a lawsuit, call someone on each side of the case and write it up, sometimes in a matter of minutes. And what that means is that sometimes actual evidentiary records, legal arguments made before the jury, get left out.
One of the things we found is that you almost never read about the legal claim. What is the body of statutory law? What is the legal principle? You don't find discussion of what liability is.
The reporter talks to the defendant's and the plaintiff's attorneys and they each give their side of the story, which is heavily loaded with moral categories and allegations on either side and leaves out the law. The reporters don't have time or money to sit in court and watch a trial. So what you get is reports that are very distant from what the juries actually hear.
The trial lawyers are considered a very powerful lobby. Why haven't they been able to influence public opinion as well?
With the trial lawyers, the primary response has been to spend a considerable amount of money in two ways. One is to influence legislators through campaign contributions and lobbying to oppose tort reform. The second way is in states where tort reform has passed, to challenge them on state constitutional grounds, making a separation. of powers argument. And that's been very effective as well.
But both of those strategies are back-room strategies; they neutralize tort reform without having to take on those arguments in public. So while they have an effective strategy for neutralizing tort reform as an effort to change institutional practices, they have been amazingly reluctant to take on those arguments openly and publicly.
Why is that?
The real simple answer is the trial lawyers don't think there is any way they can win that public battle. These days trial lawyers are very much on their heels and under assault, and they feel that everybody despises lawyers or is at least deeply ambivalent about them. So they are much more reluctant to try to make that case publicly.
We think that has tremendous implications for the receptivity of the litigation crisis argument. The policy battles in courts and legislatures have been won, but whether that will continue to be the case is an open question. Not winning the public battle matters a great deal.
If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at firstname.lastname@example.org.
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy