Litigation 'explosion' debunked
Clashes over an "explosion" of lawsuits and "massive" jury awards may well play a role in next Tuesday's vice presidential debate involving a famous former trial lawyer, John Edwards.
But what the public usually hears about lawyers and lawsuits is distorted, according to a pair of researchers who analyzed two decades of press coverage in The Wall Street Journal, New York Times, and three other national newspapers. They found that oversimplified anecdotes spun into easy-to-swallow morality tales routinely eclipsed actual litigation.
"We call these 'tort tales' or 'pop torts,' " said Michael McCann, a UW political science professor who with the University of Puget Sound's William Haltom spent five years researching how rarities like the $2.9 million award to a McDonald's coffee-spill victim come to be portrayed as commonplace examples of a legal system run amok.
In their new book, "Distorting the Law: Politics, Media and the Litigation Crisis," McCann and Haltom document how:
- Contrary to the "explosion" of lawsuits recently alleged by President Bush, rates of tort filings in state courts concerning products liability and medical malpractice have varied widely across the country over the last two decades but overall have increased no faster than the population, and in recent years have tended to decline.
- What has burgeoned is press coverage of lawsuits. Since the mid-1980s, when corporate interests launched a campaign to limit tort awards, the number of lawsuit stories in the five major newspapers increased roughly sevenfold.
- Those stories portray plaintiffs winning far more often than they do in the real world. Of the 2,347 lawsuit stories that ran in the five national newspapers during the 1980s and '90s, for example, the researchers found more than three times as many reports of victorious plaintiffs as defendants. Actually, plaintiffs win tort cases less than half of the time generally and even less often in recent years.
- When plaintiffs do manage to get their cases heard and collect compensation, the average payout is a small fraction of the awards that usually make headlines.
To understand how the picture got so distorted, McCann and Haltom dissected coverage of the 1994 McDonald's coffee case and discovered that almost every newspaper story omitted key pieces of evidence that made the initial $2.9 million award sensible to jurors, most of whom had entered the trial with huge reservations about the woman's claim.
Left out of most news accounts was the scientific evidence regarding the rate at which hot liquid burns through human tissue, the severity of the third-degree burns the woman suffered over 6 percent her body, the fact that McDonald's had ignored some 700 previous complaints about the danger of serving coffee nearly 45 degrees hotter than normal home brew, and the core legal principles at stake in the case.
Also, many reports failed to mention that the damage award was reduced by the judge to less than $700,000.
Other erroneous "facts" got added over time. For example, the majority of articles implied that the woman had opened her coffee cup while driving; in fact, she was a passenger in a car that was parked. Even after The Wall Street Journal published an investigative piece establishing some of the facts that jurors had learned, faulty initial news reports continued to be propagated.
"Jurors decided the case on the facts that they heard," Haltom said, "but most Americans never hear those facts."
In interviewing more than two dozen journalists, the researchers found that reporters usually don't have time to attend trials or have access to trial records, and often have to base their stories on pre- and post-trial interviews with litigants. This often replaces information available in the courtroom with spin and propaganda.
As the McDonald's coffee story made its way into op-ed commentaries and then pop culture (hence, "pop torts"), even more misleading renditions became fodder for comedians lampooning the woman's supposed opportunism and the death of personal responsibility.
How do such distortions occur? Drawing on their own National Science Foundation-funded research as well as compiling dozens of existing studies, McCann and Haltom found among the causes:
The overall result, the researchers found, is that press coverage of lawsuits often varies little from the simplified "tort tale" ads created by politicians and interest groups.
- A highly skilled public-relations campaign by corporate and insurance interests seeking to limit financial exposure to consumer complaints.
- A risky decision by national trial lawyer groups to concentrate on "insider" lobbying of lawmakers rather than fighting back in the court of public opinion.
- The tendency of news media to skimp on the testimony, evidence and especially science that might explain verdicts.
"Many scholars have studied this and come to the same conclusion," McCann said. "The problem is that they rarely communicate to reporters as routinely and effectively as do those on the other side."
McCann and Haltom did not deny that the U.S. civil justice system might benefit from well-selected reforms, but they concluded that the anecdotal information available to the public provides an insufficient basis on which to render judgments about either individual cases or larger trends in law.
What typically passes as "common sense" about the litigation crisis, they found, is as fanciful as it is familiar.
Source: Eurekalert & othersLast reviewed: By John M. Grohol, Psy.D. on 21 Feb 2009
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