Setting the Record Straight: Debunking the Myths of Tort Reform

June 20, 2007

As plaintiffs’ attorneys, we are constantly placed in the position of having to defend not only our profession, but also our clients, who are generally looked upon with disbelief throughout the litigation process. Claims adjusters, defense counsel, and juries have been inundated with over 30 years of misinformation and propaganda from big business – misconceptions that influence their decision-making every step of the way. This article is designed to provide a short list of talking points to challenge many of the most commonly held myths surrounding the civil justice system. As defenders of our clients’ rights to access and achieve justice, we must be vigilant in our efforts to correct the half-truths and lies surrounding our profession.

The Litigation Explosion

The infamous McDonald’s coffee case is usually the first example you might think of when arming yourself against these myths. But the misinformation regarding the civil justice system involves not just the amount of awards that plaintiffs are incorrectly perceived to obtain, but the number of lawsuits filed in the first instance. Of course, the litigation explosion so often referred to by corporate giants, not the least of which include insurance companies, is a complete fabrication.

The National Center for State Courts, a non-partisan group that studies State Courts across the country, reports that between 1991 and 2000 tort filings across the country fell an average of 22%, when adjusted for increases in the population. See National Center for State Courts, Examining the Work of State Courts (2001). Population adjusted tort filings in California fell 44% during this same period of time. Despite these facts, the number of large plaintiffs’ verdicts reported by major media outlets increased exponentially. See William Haltom and Michael McCann, Distorting the Law: Politics, Media and the Litigation Crisis 163 (2004

Courtrooms Are Clogged by Greedy Trial Lawyers Filing Frivolous Lawsuits

While the numbers above directly contradict the pervasive belief that tort claims are clogging the courtrooms, it is important to understand that the litigation myths regarding the numbers of lawsuits also fail to differentiate between (1) who is filing the lawsuit, and (2) what type of civil lawsuit is being filed.

The American civil justice system allows anyone to file a lawsuit. This includes individuals who are not represented by an attorney, including prisoners. Lawyers have no control over cases filed individually by prisoners. If such cases are without merit, they are summarily dismissed by the courts through the proper legal procedures at the beginning stages of litigation.

Similarly, lawyers cannot preclude an individual from filing a lawsuit on his or her own behalf, in pro per. California state courts in 2003 saw unrepresented parties filing suit in 16% of all civil actions. See Judicial Council of California, Task Force on Self-Represented Litigants, Statewide Action Plan for Serving Self-Represented Litigants 2 (2004).

Presumably, these are cases that have been reviewed by attorneys and found to be without merit (or economically inefficient to prosecute due to damages caps and the like). Again, if such cases are without merit, they can be disposed of by the court in the initial stages of litigation and are not blocking access to the courts for more deserving plaintiffs. More importantly, most plaintiffs’ attorneys work on a contingency basis, and advance most, if not all, of the costs of litigation for their clients. Thus, if an attorney does not obtain recovery for his or her client no attorneys fees are earned and the attorney loses thousands (or even tens of thousands) of dollars in unrecoverable costs. It doesn’t take an M.B.A. to understand that filing and prosecuting losing cases would quickly bankrupt a plaintiffs’ attorney.

Civil lawsuits also include domestic relations (divorce) filings. Thus, while the general public is well aware of the anecdotal fact that more than fifty percent of marriages end in divorce, somehow this perception has failed to translate into an implicit understanding that civil divorce case filings have increased accordingly. Often emotionally charged, these cases can hardly be categorized as Afrivolous,” and in no way correlate to cases filed on behalf of physically injured individuals.

Plaintiffs Regularly Win Multi-Million Dollar Verdicts (Jackpot Justice and the Litigation Lottery)

Plaintiffs lose more than half of all personal injury trials, and more than seventy-five percent of medical malpractice trials. See William Haltom and Michael McCann, Distorting the Law: Politics, Media and the Litigation Crisis 191 (2004) citing National Center for State Court statistics for the 75 largest counties in the country. According to the U.S. Department of Justice’s Bureau of Justice Statistics, jury awards in tort cases fell 56 between 1992 and 2001, from $64,000 to $28,000. See Stephanie Mencimer, Blocking the Courthouse Door 24 (2006).

Despite these facts, the media’s portrayal of the civil justice system paints a quite different picture. A review of legal coverage by major media outlets found that plaintiffs’ wins are three times more likely to be reported than defense wins, and reports focus primarily on large verdicts for plaintiffs. See William Haltom and Michael McCann, Distorting the Law: Politics, Media and the Litigation Crisis 165-167 (2004).

More troubling than the fact that plaintiffs’ large verdicts are more often reported is that the reporting (and subsequent spin) is usually marked by crucial factual omissions. Nothing demonstrates this more than the infamous McDonald’s coffee case, which epitomizes corporate America’s rally cry for tort reform following the nearly $2.9 million verdict in favor of 79 year-old Stella Liebeck, who Aspilled hot coffee on herself. The true facts regarding this case bear repeating, as they help to underscore the misinformation that has been perpetuated among the general public.

• Stella Liebeck suffered third degree burns to her inner thighs, genitalia and groin, causing her to remain hospitalized for over a week and undergo numerous skin grafts.
• The vehicle in which Stella was riding as a passenger was stopped when the coffee spilled.
• McDonald’s received more than 700 complaints regarding serious burns caused by their coffee prior to the incident.
• McDonald’s policy was to serve coffee at between 195 and 205 degrees Fahrenheit. McDonald’s knew that this liquid temperature was high enough to cause third degree burns (literally peeling skin off of bone) in seven seconds or less.
• Stella tried to settle the matter for $20,000.
• An independent mediator recommended that McDonald’s settle the case for $225,000.
• The jury found Stella 20% at fault, awarded her $200,000 for her economic damages (which were reduced to $160,000) and $2.7 million in punitive damages (equivalent to roughly two days worth of profit from McDonald’s coffee sales).
• The judge reduced the punitive damages award to $480,000, but found that the award of punitive damages is and was appropriate to punish and deter (McDonald’s) for their wanton conduct and to send a clear message to (McDonald’s) that corrective measures are appropriate.
• The case ultimately settled for a confidential amount, far less than the $2.9 million originally awarded by the jury.

See Stephanie Mencimer, Blocking the Courthouse Door 18-20 (2006). See also William Haltom and Michael McCann, Distorting the Law: Politics, Media and the Litigation Crisis 185-195 (2004).

Not surprisingly, a brief recitation of the true facts of this case are usually met by non-lawyers and lawyers alike with a gasp, followed by a nod of understanding.

Although the mis-representations of actual cases are difficult to swallow, coverage of completely fabricated cases by mainstream media outlets are widespread. The most commonly referenced cases (periodically circulated via email under the title Stella Awards named after the plaintiff in the McDonald’s case discussed above) include:

• A man who put his Winnebago on cruise control, then left the driver’s seat to make a cup of coffee was awarded $1.75 million and a new motor home in a lawsuit against Winnebago for failing to warn him of the dangers of cruise control.
• A woman was awarded $780,000 by a jury after breaking her ankle tripping over her own child at a furniture store.
• A restaurant was forced to pay a woman $113,500 who slipped on a wet floor caused by a soft drink she had thrown at her boyfriend during an argument only seconds earlier.

Not one of these cases actually existed. Nevertheless, in the collective knowledge of the general public, and therefore each potential jury pool, each of these cases is very real, and wholly supports the skepticism with which people view plaintiffs in general. Very few, if any, people believe that AOL, Bill Gates, or Microsoft are going to send them a huge check, as suggested by the infamous Beta Test email, so why are people to so quick to assume the truthfulness of the cases listed above in the Stella Awards email? More importantly, what can we do?

Spreading the Truth

Why are we still fighting this battle when the facts are completely contrary to public perceptions? The media has bought into corporate America’s mis-information campaign hook, line and sinker. And who can blame them? After hearing the same thing, over and over again for more than thirty years there must be some truth to it, right? These circumstances also beg the question as to whether or not a plaintiff can ever truly get an unbiased jury of his or her peers.

Given the daunting task we all face with each client we represent, I challenge each and every reader of this article to take the opportunity to set the record straight each and every time the opportunity arises.

Spend five or ten minutes with each potential client you meet to ask them about their perceptions regarding lawsuits. The overwhelming majority of them will recite, as truths, many of the myths set forth above. Spend a few minutes to correct their misconceptions, using the real facts, and explain to them how these myths are almost universally held, and will ultimately prove harmful to their case.

The next time you reveal your profession to someone at a party, only to have them roll their eyes at you, spend a few minutes to get their thoughts on alleged lawsuit abuse. Share the real facts, and challenge them to research the issue themselves.

Of course, these efforts will not change public perception overnight. However, we do our clients and the entire civil justice system a disservice by failing to capitalize on every opportunity possible to set the records straight – even if it is done one person at a time.

Contact Aitken * Aitken * Cohn today to learn more.