Vol. 14 No. 9 (September 2004), pp.747-750
DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS, by William Haltom and Michael McCann. Chicago: The University of Chicago Press, 2004. 332pp. Cloth $55.00. ISBN: 0-226-31463-4. Paper. $20.00. ISBN: 0-226-31464-2.
Reviewed by Richard L. Pacelle, Jr., Department of Political Science, Georgia Southern University. Email: firstname.lastname@example.org
‘Tis the season of political campaigns. Among the largest donors for the two major political parties are long-term nemeses in the battle over tort litigation: doctors and trial court lawyers. One member of the latter group is even on the presidential ticket for his party. Every two to four years, the interrelated issues of medical malpractice, tort reform, and gluttonous lawyers are raised in a systematic fashion. Between elections, we are treated to anecdotes and jokes about the litigious society and personal responsibility. From stories of McDonald’s scalding coffee to the accident victim in the phone booth who sued the telephone company for injuries, to the New Yorker who tried to commit suicide in the subway and failed and sued the city, it is not surprising that there is a widespread perception that a litigation explosion has victimized Americans. Not only are the plaintiffs and defendants in the instant cases affected; all citizens pay the price in higher insurance rates and the hidden costs that allow companies to recoup money from the attorneys’ fees and exorbitant judgments. But is the widespread perception of litigiousness a reality? Is tort reform necessary to save the system? William Haltom and Michael McCann unravel the complexities of these and related questions in a systematic, multi-faceted analysis. The bottom line, they discover, is that man bites dog and a lawsuit does not necessarily ensue.
This is a “dense” analysis (the authors’ own categorization) and that description is meant in the most positive way. The authors utilize a theoretical and methodological triangulation. They build their theoretical arguments on three dimensions: the instrumental, institutional, and ideological levels. Haltom and McCann marshal their evidence through content analyses of media reports, extensive empirical data (a synthesis of their studies and the results of the voluminous literature that documents the exaggeration of the tort crisis), and extended case studies with anecdotal evidence. While many analysts are suspicious of anecdotal evidence, it is perfectly appropriate here because so much of the current debate is based on it. The methodological triangulation provides, as the authors argue, a potential “antidote to the anecdote.”
The study is richly layered and valuable on a number of levels. The authors place their analyses firmly in the broader theoretical themes that animate the law and society literature. The authors take the discussion of torts from the individual level and relate it to rights consciousness and the struggle to achieve equal rights. There is no [*748] mistaking the perspectives of the authors on the question of the litigiousness of American society or the issue of tort reform. They are clearly troubled by the misrepresentation of many tort cases, the exaggeration of litigation rates and plaintiff success, and misguided efforts at reform. Haltom and McCann argue that the messages that come from these discrete cases and the reactions to them reinforce existing disparities in political power. The study borrows from the context that Marc Galanter established three decades ago. As Haltom and McCann demonstrate the “haves” indeed come out ahead.
Some of the more outlandish suits resemble the well-traveled urban legends: there are elements of truth to these narratives, but the bottom line of many of these cases is different than the perceived result and the anecdotes that flow from them. The facts that spawned the individual case get twisted and the ultimate deposition of the dispute becomes obscured after the original judgment is reduced by the judge or reversed on appeal. In the end, the defendants seem to enjoy the best of both worlds: the offensive judgment of the trial court is trumpeted publicly, permitting corporate hand wringing, widespread outrage, and exaggerated comic references, but is later reversed on appeal or reduced to a fraction to the tones of a deafening national silence.
The coalition of forces that have been able to co-opt the agenda and press for tort reform have included social conservatives, neo-liberals, and corporations and their attorneys. Structural constraints on the news media have made them an ally in spreading the message of tort abuse. Their overmatched opponents include a less organized plaintiff bar, trying to maintain a low profile, a spokesperson, Ralph Nader, who has become a pariah after the 2000 election, and social scientists whose contrary research is not distilled to the public.
The authors chafe at the disparity between the parties in these cases and how the perceived realities of the tort crisis reinforce the existing inequities. Are the plaintiffs out to make a quick buck without taking responsibility for an accident or are they victims of unsafe products and corporate mismanagement just seeking fair compensation? Corporations, potentially liable for medical expenses and pain and suffering, have used anecdotes and homegrown or sponsored research to stoke public outrage and create a favorable climate for themselves. They have help in constructing narratives to fit profiles the media like: outrageous jury verdicts resulting from common accidents. Insurance companies and corporations can demonize the “victims” and their ruthless attorneys. Phrases like “junk science,” “litigation lottery,” and the “holler of the dollar” are rich in their descriptive value and serve to control the agenda and put the plaintiffs bar on the defensive.
The plaintiffs, a group of one-shotters, are not organized enough to combat this public relations advantage. Their primary allies, private tort attorneys, have an enormous incentive to remain as invisible as possible, given the public’s antipathy toward the legal profession. Much of the scholarly literature debunks the myth of runaway litigation, but it is not accessible to the general public and the media do not seem particularly [*749] interested in unraveling the nuances and complexities of the data. In addition, the bar is divided. For every attorney who takes a case on behalf of a plaintiff injured, there is one (or likely a battery of attorneys) to defend the corporation.
Opponents of tort reform do have a few advantages. The political muscle of the plaintiff bar has successfully fought federal attempts at sweeping tort reform and emasculated many of the unfavorable laws that passed state legislatures. While the public is not enamored of lawyers, corporations and insurance companies hardly enjoy widespread support. Still, as the authors note, the instrumental and institutional factors favor the corporations and insurance companies while the favorable potential of the ideological level has been successfully negated.
By all accounts, the ideological battle should be fought on more equal grounds. After all, the defendants in these suits are large corporations, insurance companies, the manufacturer of an unsafe product, or a corporate entity that has demonstrated a disregard for safety. These are hardly the heroes of the common men and women. These corporations and insurance companies are opposed in the various cases by a one-shotter, who more closely resembles the jurors in the case and has some injury that altered his/her life. On the face, it is hard to see how the company can wage this public relations battle, let alone hold its own or win it. The long-ingrained ideals of personal responsibility have been effectively used by corporations to paint the victims of accidents as unscrupulous prospectors who occasionally hit the “litigation lottery.”
After examining the players and the playing field, the authors spend a chapter on the hot coffee case that has become the rallying cry for tort reformers and the subject of news and pop culture attention. It is easy to see how this case was twisted to serve as the symbol for all that is wrong with the legal system. The more surprising result, from the following chapter, is how the tobacco companies could gain any sympathy in their battles against smokers and the victims of second-hand smoke.
This is an excellent study and should assume its rightful place in the pantheon of law and society studies, though sadly, if the authors are correct, it will largely be ignored by the public and policy makers. The book, however, is not without a few problems. The book could have used more careful editing to alleviate some of the redundancy. More problematic is that the authors, true believers in their cause, occasionally resort to the type of hyperbole they decry in their opponents. For example, many of the initial reports of the McDonald’s coffee case were reported rather faithfully. It was in the reverberations that key elements of the case were omitted or twisted. In addition, the authors exaggerate the ability of the tobacco companies to fight the public relations battle as the different periods unfolded.
In the end, the book becomes, for sympathetic readers, the academic equivalent of A CIVIL ACTION. It is hard not to feel a sense of despair about the prospects for change. The instrumental, institutional, and ideological levels all favor the powers that be. The authors argue that tort law, unlike contract law, is unsettled, [*750] unpredictable, and open to seemingly wildly fluctuating results. But can it be used to influence public policy? Ideally, repeated adverse private law judgments would send messages to corporations and insurance companies to correct their abuses. In the end, the authors argue the “full tort press” has had the opposite result: the plaintiffs bar is increasingly reluctant to take suits that can become wars of attrition against well-heeled opponents. Clients with legitimate injuries may have trouble finding attorneys who will take their cases on a contingency basis. Ironically, perhaps, this is one of the most compelling arguments from the doctors, corporations, and insurance companies about the availability of their goods and services if avaricious lawsuits continue to be filed.
Galanter, Marc. 1974. “Why The ‘Haves’ Come Out Ahead: Speculations On The Limits Of Legal Change.” 9 LAW & SOCIETY REVIEW 95‑160.
Harr, Jonathan. 1996. A CIVIL ACTION. New York: Vintage Books.
© Copyright 2004 by the author, Richard L. Pacelle, Jr.