False alarm: how the media helps the insurance industry and the GOP promote the myth of America's "lawsuit crisis."

Washington Monthly, Oct, 2004 by Stephanie Mencimer

Tort reformers, too, have deftly manipulated reporters' weaknesses, like the over-reliance on the anecdotal lead. Editors are always imploring writers to find a perfect anecdote that can sum up a complicated problem in 40 words or less. This can be a useful tool for conveying information to a reader, but when it comes to something as complex as civil justice system, the technique often backfires because the juiciest anecdotes tend to be the exception rather than the rule. And reporters simply don't expect to be lied to when an advocacy group hands them tales of a crazy lawsuit or a study about economic trends--a naivete that the tort reform movement has skillfully exploited. Gary Alan Fine, a sociology professor at Northwestern University and an expert on contemporary legends, says most people, including reporters, "rely on the trust we have of others."

Lobbying groups and industry financed think tanks have also taken advantage of an information vacuum. For years, most state courts never collected information on case outcomes and jury awards, so real numbers were hard to come by. Tort reformers have expertly filled this void with their own figures. "When there's no data, you can just make stuff up," says Eisenberg.

Even when there are relatively good data, they are easy to misread. The RAND Corporation's Institute for Civil Justice has reliable jury verdict data for two counties in Illinois and California going back 40 years. At one point, California's average jury verdicts showed a big jump. A tort reform lobbyist might point to the same data as proof that emotional jurors are giving away a lot more money. In fact, what happened was that California raised the dollar limits for cases that could be pressed in small claims court, taking the small cases out of the main court, thus pushing up its statistical average even when the actual awards stayed constant. "It's really, really hard to make any inferences about what's going on out there from jury verdicts," says RAND's Seth Seabury.

Indeed, the "onslaught of litigation" over the past 30 years decried in Newsweek is a relative term. In 1962, for instance, only about 300 civil rights lawsuits were filed in federal courts. In 2000, there were more than 40,000--an onslaught, to be sure, but that's because prior to 1964, racial discrimination was legal.

Michael McCann, director of the Comparative Law and Society Studies Center at the University of Washington, suspects that legal myths remain so pervasive because Americans want to believe them. He says that tort reformers have turned the frivolous lawsuit "into a morality tale about the loss of personal responsibility." He also suspects that the flexible American legal system lends itself to such caricatures because in America, fat people really can sue McDonalds (whether they would win is an entirely different matter), so many of the fake lawsuit stories don't seem like that much of a stretch.

The news coverage may be creating some unexpected consequences: Some academic researchers suspect that all the hype about the litigation crisis might actually be making Americans more litigious by giving them the erroneous impression that compensation is available through the courts for most injuries. As McCann says, "Tort reformers may have produced more frivolous claims while making legitimate claims harder to bring."