From The Journal of Politics (Feb 2006) Vol. 68 p. 217

Reviewed by Christopher S. Kelley, Miami University

...

In Distorting the Law, the authors make an important contribution in examining the impact that narratives have upon the law. In this book the authors seek to explain the way in which certain narratives become cultural icons, affecting not just public policy but also affecting the way in which Americans think about certain issues. An example of a powerful narrative is found in Ronald Reagan’s fictitious "welfare queen," a woman who was on welfare despite the fact that she drove a Cadillac and wore a fur coat. As the authors argue, narratives matter more today because of the rise in symbolic politics, in which simplistic phrases or concepts can convey a large amount of information.

The authors approach the power of narratives from a simple event—the woman who spilled coffee on her lap and sued McDonalds. The McDonalds coffee suit has come to symbolize what is wrong with our civil legal system today, in which irresponsible citizens and ambulance chasing attorneys are exacting a cost upon society. As the authors demonstrate, the only empirical "fact" found in the McDonald’s case is that an elderly woman spilled coffee in her lap. In reality, the woman spilled coffee while sitting in a parked car after trying to put sugar and cream in her coffee. When it spilled, it left her with third degree burns over six percent of her body. After asking McDonald’s to cover the expenses not covered by Medicaid (roughly $20,000), McDonald’s demurred and a jury ended up awarding her $2.7 million in punitive damages—the profits from two days worth of coffee sales at McDonald’s. A judge reduced the amount to $480,000, and the final amount is unknown since it was settled by McDonald’s and sealed by the court.

The authors wish to demonstrate how a case that shows clear negligence on the part of a multibillion dollar corporation came to be viewed as an incident of a lawsuit crazy country. They are interested in how, despite the facts, this narrative was used in the fight for tort reforms at the local, state, and national levels. They found that over the course of the last 20 years, the proponents of tort reform (big business, think tanks such as The Manhattan Institute or the Cato Institute, and those in the press (John Stossel)) continued to repeat the refrain that irresponsible Americans and greedy trial lawyers are costing the country millions in added costs to goods and services and/or lost jobs. This mantra, repeated often enough, became the settled understanding of tort claims in the country. Thus, it was easy to twist the McDonald’s suit into yet another example of the need for "commonsense" tort reform in the country, despite considerable evidence to the contrary.

The reader is left with two messages from the book. First, to reclaim the facts of tort claims in the United States, the legal profession must fight on the turf of those who seek substantive tort reform. This means waging a media campaign with simple and commonsense messages. So far, the counter-attack has been in journals and the specialized press, which most Americans never read. A similar message exists in the fight to "protect" academic freedom in the colleges and universities. The out of touch academic is not hard for most Americans to envision.

A second message addresses a problem with journalism in the United States, in particular, the problem with objectivity. The norm of objectivity asserts only two relatively equal sides to any issue. As a result, there is a danger of missing important voices in an issue or of distorting the resources and credibility of one of the sides. In this book, multibillion dollar corporations are placed on an equal footing with the citizen claiming injury.

This book is an indispensable resource for those teaching upper level or graduate courses on the law, the media, and/or interest groups. Those scholars interested in how narratives evolve into cultural icons that resonate with a community will find this book helpful.

From Perspectives on Politics (September 2005) Vol. 3, no. 5 pp. 638-640

Reviewed by Susan E. Lawrence, Rutgers University

If you, or anyone you know, believe that America is in the midst of a litigation crisis, then you must read this book.

Haltom and McCann set out to examine how "assumptions about an ’epidemic’ of civil litigation, a surfeit of rights claiming and a legal system run amok became conventional wisdom@ among political elites and plain common sense to everybody else." (p. 6) This is an important and interesting question on its face given the periodic campaigns for tort reform that have swept the country during the last three decades: 45 states have passed some type of tort reform measure since the 1970s (p. 51); both houses of congress passed significant federal tort reform legislation for the first time in 1995 (later vetoed by Clinton) (p.7); the last two presidential campaigns featured calls for tort reform; and tort reform is the centerpiece in President Bush’s rhetoric on the health care crisis.

But, there are two things that raise Haltom and McCann’s question to the level of urgent and compelling. First, most of this common sense is, in fact, nonsense (p.81). Over the last several decades, rigorous studies by socio-legal scholars have shown: Americans’ the modal response to injury is to do nothing; Americans consult lawyers far less often and file far fewer legal claims than the commonsense of the tort reformers suggests; lawyers reject far more cases than they undertake; tort cases constitute less than 20-25% of federal civil cases, 98% of tort cases are filed in state courts where they represent less than 10% of civil filings; seven out of eight civil filings are settled before verdict; the tort system under compensates the direct costs of nonfatal injuries; punitive damages are rarely awarded, and even more rarely collected, and they do systematically correlate with compensatory damages; smaller claims tend to be overcompensated while larger claims are under compensated; and the greater the award, more likely it will be reduced by the trial judge or an appellate judge, or both, and the more likely that the final award will be at least partially unpaid (pp. 82-99).

Second, one of Haltom and McCann’s central contentions is that the "common sense" about an epidemic of litigation, a surfeit of rights claiming, and a legal system run amok is fundamentally linked to the broader culture wars raging throughout the United States. (p. 71) "Frivolous litigants displacing responsibility for self-inflicted harm and greedy lawyers abusing the legal system have joined the growing catalog of Others -- welfare queens, the chronically unemployed, street criminals, disorderly dissenters, amoral liberals and secular humanists, slackers of all kinds dependent on government help -- stigmatized by neoconservatives and neoliberal proponents as undeserving and dangerous." (p. 71) This mass-produced legal knowledge makes an important difference in American political culture that cannot be measured solely by counting the legislative successes of the tort reformers, which, so far, have been held in reasonable check by the powerful trial lawyers. The tort reformers’ legal lore has "narrowed the discursive terrain of politics" in significant and problematic ways: it diverts attention away from the corporations responsible for injuries; it reinforces American tendencies to evaluate social problems in terms of individual responsibility and moral character; it diverts attention from the failure of government to adequately provide social services to buffer the risks and harms endemic to modern life; it puts a stigma on "right-claiming" across areas and forces progressives into defending a system they criticize as benefiting the ’haves’ over the ’have nots.’ " (pp. 282 - 290) It has made public and private administrators terrified and timid, while most ordinary citizens have been inoculated into a culture of law avoidance -- save the few opportunists that are encouraged into copycat litigation by the fantastic claims of the widely circulated "tort tales." Red herrings and nonsense are no way to make public policy.

But, let me be clear, for better or worse, this book is no polemic. Haltom and McCann are deeply committed to the norms and methodologies of social science, with the former a realist partial to statistical data sets, and the later a social constructionistist partial to theory-driven, qualitative, interpretive studies. They do a beautiful job of blending the two approaches into a triangulation that gives us uncommon leverage. And, unlike a standard polemic, this book does not identify a simple villain. Instead, Haltom and McCann’s careful and nuanced analysis leads them to the general argument of the book "that the simplistic narratives disseminated by policy-driven tort reformers have at once reinforced and been reinforced by everyday news reporting along with enduring ideological commitments endorsing individual responsibility and disparaging legalistic state paternalism." (p. 24).

Haltom and McCann consider the social construction of legal knowledge along three dimensions of social practice: instrumental, institutional and ideological. Framed by introductory and concluding chapters, the book is divided into two parts. The first part devotes a chapter to each of the instrumental actors: pop tort reformers; realist sociolegal scholars; and trial lawyers and consumer groups. While one might quarrel with Haltom and McCann=s characterization of sociolegal scholars as instrumental actors, and in fact Haltom and McCann do argue that the institutional practices of the academy largely account for the failure of the sociolegal scholars to displace the tort reformers’ myths, winning this point would make little difference in Haltom and McCann’s overall analysis.

The second part of the book explores the institutional practices or standardized news reporting conventions as they shape the media's coverage of the civil justice system. Haltom and McCann rely on an impressive quantitative content analysis of 3,300 stories on tort litigation published in five leading newspapers over 20 years (the authors’ data is available at www.lawslore.info ), supplemented by two rich cases studies. The first examines how a 79 year old woman suffering third-degree burns from McDonald=s coffee became the poster-child for tort reform. The second asks why the tobacco litigation has not produced popular counter-accounts of the virtues of the tort system. Demonstrating a number of what they call "homologies" between news stories and tort tales circulated by reformers, Haltom and McCann argue that routine news production conventions result in news coverage that very much resembles the "everyday knowledge constructed by tort reformers" (p. 174) and together the two produce a nearly unshakable, though false, common sense about the American legal system.

Haltom and McCann weave a discussion of the third dimension -- ideology -- into their accounts of the instrumental and institutional dimensions of the social construction of knowledge showing that the ideological component is key to understanding the success of the tort reformers’s instrumental efforts and the power of the stories produced by media’s institutional conventions. Haltom and McCann point to the American penchant for norms of individual responsibility and minimal state action and show how tort tales invoke these values and how news coverage reflects and reinforces them. The dominate legal lore resonates with the American ethics of self-reliance, toughness, and autonomy, and, at the same time, with nostalgic myths of communal harmony. But, while ideology is given substantial weight in Haltom and McCann’s explanatory calculus, but it retains a shadowy, misty, cirrus-like existence in their analysis. I am left uneasy. Is it simply a delicious, disastrous, irony that our ideological commitments to individual responsibility and minimal state action lead us to adopt a system of adversarial legalism (Robert A. Kagan, Adversarial Legalism, 2001; Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights, 2002) while at the same time vilifying those who turn to that system for relief? So we chase our tail while social welfare languishes -- or maybe that is the Right’s point after all.

In short, this is a terrific book and it deserves a much wider audience than such rigorous scholarship usually gets. But, it ought to at least be widely read, and taught, by scholars interested in the American public policy process, the limited rise -- and possible demise -- of the American welfare state, the construction of political knowledge, and, of course, by all students of law, politics, and society.

From The Columbia Journalism Review (July-August 2005) Vol. 44 pp. 69-71

Reviewed by Michael Schudson, University of California, San Diego

Runaway jury awards ... and other made-for-media myths

In 1992 Stella Liebeck spilled a cup of coffee on herself that she had just bought at a drive-through. She sued McDonald’s and won three million dollars.

So goes the most famous of the "tort tales" that William Haltom and Michael McCann write about in Distorting the Law: Politics, Media, and the Litigation Crisis. But this tort tale, like so many others with a similarly simple melodic line and a back-up orchestra--playing "those greedy lawyers!" and "when will Americans take responsibility for their own actions?"--gets the facts wrong, fails to explain how American courts operate, and obscures rather than reveals the virtues and defects of the American system of justice. In fact, the authors argue, litigation is not exploding, Americans are reluctant rather than eager to go to court, and juries are typically pro-business and not pro-plaintiff in product liability suits.

Almost all "law and society" sociologists, anthropologists, political scientists, and law professors would agree with the thrust of their argument; the academic consensus is well-documented. At the same time, however, the "law and society" crowd has failed to reach the public with news of the simplifications, distortions, and errors of the tort-reform lobbyists. What Haltom and McCann, rigorous political scientists with the instincts of folklorists, have provided is an extensive, systematic analysis that traces the "tort tales" through the news media.

Wouldn’t it be odd, for example, if it turned out that seventy-nine-year-old Stella Liebeck, who sat in the passenger seat of a fully stopped car to remove the lid of the coffee to add cream and sugar and spilled the whole cup of coffee on herself, suffered third-degree bums over 6 percent of her body, was hospitalized for over a week, permanently disfigured, and partially disabled for up to two years? And that this woman, who had never Filed a lawsuit, politely asked McDonald’s only to reevaluate the temperature to which they heated coffee and to pay her medical expenses of up to $20,000? That, after six months of lawyer-less (on her side!) communication with McDonald’s, McDonald’s offered her $800 in compensation? That McDonald’s had in the prior decade dealt with some 700 similar complaints of burns and had paid out nearly $750,000? That the jury’s award to Liebeck--of $160,000 in compensatory damages and $217 million in punitive damages--was reduced to a total maximum of $640,000 by the judge who concluded that on the basic points the jury got it right?

Or consider the story of Judith Haimes, the Philadelphia psychic who won a million dollars in a suit in which she claimed a medical procedure made her lose her psychic powers and thereby her livelihood. The implication is that Haimes, like liebeck, initiated a frivolous, even freakish, lawsuit, and that amazingly gullible juries and greedy trial lawyers punish corporations, doctors, and all the rest of us who wind up paying the higher insurance premiums that litigation promotes.

Wouldn’t it be odd, then, if it turned out that the psychic’s debilitating headaches were likely caused by a medical procedure in which the physician ignored the patient’s report of previous allergic reactions to the iodine-based dye the doctor then proceeded to use? And that, nonetheless, the original $986,000 jury award was eventually dismissed by a divided Pennsylvania Superior Court and that Haimes, who undeniably suffered serious injury because of an allergic reaction to iodine, never received a penny from her lawsuit? (And, as for her livelihood, her psychic powers had been impressive enough that law enforcement officials averred that she had helped them solve crimes.)

These facts should jolt journalists who report or simply believe tort tales like these, or the many others of us who shake our heads in sorry agreement when Senator Mitch McConnell says that "everyone is suing everyone, and most are getting big money."

Haltom and McCann might strenuously object to my own summary of the Haimes and liebeck cases because I included only factual features of the legal complaints and nothing about the legal arguments involved. No one denies that liebeck voluntarily bought the coffee and accidentally spilled it herself; the legal question is whether McDonald’s bears a share of the responsibility for the harms she suffered. The law, not just the facts, matters, and news reports consistently omit that essential part of such stories.

The news stories on Stella liebeck, with the singular exception of an impressive Wall Street Journal account, typically omitted much, much more - how rapidly skin burns when scorched with a liquid at 170 to 180 degrees; how much the plaintiff suffered; the 700 complaints against McDonald’s; the fact that McDonald’s executives knew about and ignored the dangers of heating coffee to so hot a level; the events of the two years during which liebeck made efforts to resolve the case without going to court.

Litigation epidemic? Haltom and McCann point to the largest study of the actions people take after serious injury, which finds that only four of every hundred people who suffer disabling injury ever hire a lawyer, and only half of those file lawsuits. In a journalism of anecdote, such facts are invisible. Likewise unseen is the "disputing pyramid," the movement from possible tort injuries to grievances to the injured person’s making a claim directly to the person or organization he or she believes responsible, to a dispute when that person or organization does not come to terms with the claimant, to the claimant’s contacting a lawyer, to the lawyer’s filing a legal complaint. One extensive study finds that for every 1,000 tort grievances, 116 are eventually taken to lawyers and 38 lead to filed legal complaints - some of which lead to trial. "Litigiousness" looks different in this light.

Haltom and McCann offer prodigious documentation that the news media contribute to broad misperceptions about our civil justice system by what they choose to cover. If omnivorous readers had done what Haltom and McCann did, examining 3,300 articles from 1980 to mid-1999 in The New York Times, The Wall Street Journal, The Washington Post, the Los Angeles Times, and The Christian Science Monitor, they would have concluded that in tort cases that go to trial, plaintiffs win 78 percent of the time - not, as data on the actual win-loss record indicate, between 46 percent and 52 percent of the time. Print journalists at those leading newspapers are evenhanded in representing both plaintiffs and defendants in the cases they cover, with quotes from plaintiffs outpacing quotes from defendants about six to five. But well-balanced reporting of an unbalanced set of stories provides overall distortion. And on television, the authors suggest (on the basis of less systematic data), the distortion is even worse.

Why do so many people gleefully accept the "tort tales" about the Stella Liebecks and their lawyers? Why have the tort tales resonated so broadly?

Haltom and McCann suggest that it is not only what you say but also how you say it. The most widely circulated tort tales, they observe, persuade by featuring the "holler of the dollar" - the shock value of what appear to be outrageously high jury awards, and the implication that similar, if less extreme, cases are happening all over the country.

Further, "pop tort reformers," as Haltom and McCann insist on calling them, who seek legislation to reduce the ordinary citizen’s freedom to sue, have used tort tales to "tap deeply held values concerning individualism and suspicion about formal state institutions." The Stella Liebecks of the world, Americans believe, should not claim victimhood. They should take responsibility for their own spills, they should clean up their own messes. Americans believe this also of the many litigants through the years who sued tobacco companies for their lung cancer and other smoking-related diseases, a topic that the authors devote a full chapter to. The industry argument that smoking is a personal choice has been widely repeated because it resonates so well - no matter that tobacco marketing has been deceptive and that the companies know that the vast majority of smokers get addicted to their product as teenagers.

Haltom and McCann urge balancing individual responsibility with an insistence that businesses and professionals take responsibility for their actions, too. The authors make no claims that there are no improvements to be made in tort law, only that the strident call for limiting civil lawsuits has underhandedIy won rhetorical advantage and that the penchant of journalism for the outrageous makes this worse. Quantitative data, undramatic "disputing pyramids," and cautious academic prose may be no match for tort tales, but Distorting the Law can be a handbook for journalists who seek tales true to life.

From Trial News (Washington State)

Reviewed by Ray Kahler, Stritmatter Kessler Whelan Withey Coluccio

"How (and why) media coverage of tort litigation misleads the public"

How did it come about that politicians, news reporters, comedians, cartoonists, filmmakers, and much of the public in general routinely blame economic and social ills on an epidemic of litigiousness in America? Distorting the Law: Politics, Media, and the Litigation Crisis provides answers to that question based on a detailed study of how the civil justice system is portrayed in mass media.

Distorting the Law reviews two decades of newspaper reports and the scholarly literature regarding tort litigation, and provides case studies and analysis of the role of think tanks, insurance companies, corporations, trial lawyer organizations, and the media in shaping how the tort system is portrayed in news coverage. The authors are both university professors. Haltom is a professor in the Department of Politics and Government at the University of Puget Sound, and McCann is a professor in the Department of Political Science at the University of Washington.

The book investigates how legal knowledge is produced through the mass media. The authors identify “tort tales” as a significant factor explaining how the public views tort litigation. “Tort tales” are anecdotes about specific cases that become distorted, like urban legends. They are portrayed in the media as part of a common trend of “lawsuit abuse.” The most powerful and pervasive tort tale of all, of course, is the McDonald’s coffee case, which gets its own chapter.

Tort tales, the authors suggest, are like “a jackhammer endlessly pounding a simple, unmistakable message” about the harmful effects of the civil justice system on American society. Tort tales are effective because they are simple. They also resonate with the fundamental American moral principle of individual responsibility.

Based in part on the prominence of tort tales in media accounts of the civil justice system, the prevailing common sense in America today is that there is widespread lawsuit abuse. This conventional wisdom is accepted as true because it is repeated again and again in the media.

In addition to aggressive public relations campaigns by the insurance industry, the health care industry, tobacco companies, and other corporate interests, the authors identify several journalistic tendencies that contribute to the skewed presentation of the civil justice system in the media:

•Personalization – the preference for news stories that focus on individual actors.

•Dramatization – the tendency toward “infotainment” and sensationalization, which favors cases with bizarre facts and
high dollar amounts at stake.

•Fragmentation – the tendency to treat events as immediate and self-contained, and to ignore the broader context.

•Normalization – the tendency to match news coverage to ordinary norms and conventions because consumers will
be more attracted to it.

Lawsuits are complex and take years to reach resolution. These factors deter journalists from covering them in any depth. Evidence and legal principles are rarely included in news coverage because journalists do not have time to develop or understand the information. Instead, the authors’ research found, the focus of news reports is on the claims of the parties. The focus on claims rather than the evidence and the law reinforces the popular perception that the outcomes of lawsuits are arbitrary and not based on facts or law. Confidential settlements and protective orders, which prevent plaintiff’s attorneys from providing journalists with facts about significant cases, compound the problem.

In Chapter Three, the authors review the academic literature and data concerning the “litigation crisis.” Academic articles are published in journals with very limited circulation, and are dense, nuanced, and difficult to read. They receive little attention from the media, in large part because they cannot be easily simplified. As a result, the academic literature is inaccessible to the general public, and inaccurate information persists. Some of the significant conclusions from the academic literature that contradict the conventional wisdom include the following:

•Frivolous lawsuits are likely to be winnowed out and not result in litigation.

•Lawyers act as gatekeepers who restrict the flow of cases. For example, lawyers reject perhaps 90% of medical
malpractice cases brought to them.

•Most people who are injured do not bring claims.

•Defendants tend to win more often than plaintiffs in jury trials in medical malpractice and products liability cases.

•Punitive damages are rarely awarded and even more rarely collected.

•Jurors tend to come to tort cases skeptical of the claims and suspicious of plaintiffs.

     •Juries tend to reach decisions in medical malpractice cases with which physicians who reviewed the cases
       generally agreed.
     •Awards for pain and suffering track the severity of injuries and have grown more slowly than compensation for lost
       wages and medical expenses.

•The greater the award, the greater the probability that it will be reduced by the trial judge or on appeal.

•There is a pattern of overcompensation at the lower end and undercompensation for more severe injuries.

(This conclusion from the academic literature is significant to the debate over caps on damages because it indicates (1) that there are no “windfalls” that need to be curtailed in the most serious injury cases; (2) that caps do not make much difference in tort payouts because the vast majority of tort payouts are in smaller cases to which the caps would not apply; and (3) that the burden of caps would be borne entirely by the most seriously injured plaintiffs, who are already often undercompensated.)

Haltom and McCann observe that “[b]y academic standards of rigor and exactitude, the scholars have prevailed hands-down in the clash of ideas.” This would come as a great surprise to newspaper readers. The authors found that newspaper and magazine coverage over-reports plaintiffs’ successes in products liability and medical malpractice cases, leading readers to believe that such cases dominate tort litigation and routinely result in large awards to plaintiffs, when the opposite is true. Print coverage, the authors note, presents “a picture of the world in which, far out of proportion to actual rates, plaintiffs [win] huge jury judgments against corporations.”

Chapter Four is a detailed analysis of ATLA’s efforts to resist “tort reform.” Haltom and McCann describe ATLA’s strategy as a “stealth” policy of insider legislative and judicial efforts, while virtually conceding the public domain to “tort reform” advocates. ATLA lacks the resources and money to challenge “tort reform” advocates in the public domain, and many trial lawyers feel that it is impossible to change their public image. Again, confidentiality agreements hinder ATLA’s ability to refute tort tales with counter-stories about the benefits of tort law: “Attorneys who are best situated to tell powerful stories about the valuable role of cause-oriented personal injury litigation typically are forbidden to do so by law.”

Chapter Five contains detailed analysis of newspaper reporting on the civil justice system. The authors found that a small percentage of high-stakes tort cases dominate media coverage. Small-stakes auto and premises liability cases account for the largest volume of tort cases but receive very limited coverage. Haltom and McCann reviewed 3,300 articles in five newspapers over the span of 20 years. Over 90% of the articles were about products liability cases. The overrepresentation of products liability cases in media coverage reinforces the perception that products liability cases are clogging the courts and hurting the American economy. Class actions and mass torts, such as tobacco and asbestos, where the stakes are very high, also garner media attention.

Haltom and McCann found that readers of the five newspapers they analyzed would have every reason to believe claims about the tort litigation explosion because newspaper reportage has greatly increased, even though actual filing rates have not. The authors’ findings include the following:

     •Plaintiffs’ victories are overreported. News coverage reinforces the claim that plaintiffs are not only suing businesses
       with greater frequency, but also with greater success.
     •Awards are exaggerated. Newspaper readers are presented with figures that are far out of line with real-world amounts.

•Tort reform advocates predominate in commentary and quotations in news articles.

•Newspapers pay attention to frivolous filings and wild charges. Anomalies dominate the news, such as huge class
actions and mass torts.

     •Media coverage tends to downplay the human aspects of pain and suffering among people harmed by unsafe products or
      medical malpractice. The actual experiences of injured people are ignored or eclipsed by the competing claims and money
     at stake. Media reports tend to portray corporate wrongdoers as the victims and injured persons as litigious villains, turning
     reality upside down.

•Media coverage tends to feed into and promote the tort reform agenda, giving tort reform advocates an advantage in the
debate over the merits because the “facts” as reported in the media appear to support their positions.

     •News ethics of objective reporting encourage the presentation of competing claims (“doctors say this, lawyers say that”),
      rather than a complex understanding of the issues.
     •News reports treat individual plaintiffs and corporate defendants as co-equal disputants and ignore the gross power and
      resources asymmetries.

All of this results in news stories about tort cases being ready-made for tort reform advocates to turn them into tort tales.

The book concludes with a summary of the ways in which media coverage of the civil justice system distorts public perceptions of tort litigation, and, in turn, the public policy debate. The focus on tort tales and claims of a litigation crisis draws attention away from the lack of legislation on health care coverage and other public policy issues. The skewed media coverage has also affected juries. Jury research has found that the extent to which jurors are concerned about the “tort crisis” is the biggest factor governing whether they make high or low awards. Even risk management decisions by governmental administrators tend to be based more on expectations constructed by distorted media coverage than reality. Given the authors’ analysis of media coverage and the forces they identify that favor the “tort reform” agenda, there seems to be little hope of changing the public’s distorted image of the civil justice system. Reading this book and buying a copy for your favorite reporter or editor, however, would be a start.

From The New York Law Journal (November 23, 2004)

Reviewed by Richard K. Sherwin, New York University School of Law

LAWYER’S BOOKSHELF Distorting the Law: Politics, Media and the Litigation Crisis

"I do believe the lawsuits -- I don’t believe, I know -- that the lawsuits are causing health care costs to rise in America. That’s why I’m such a strong believer in medical liability reform." -- George W. Bush

"John Edwards and I support tort reform. We both believe that, as lawyers." -- John Kerry.

Everyone seems to support tort reform these days. But do people really know what they are buying into? If John Kerry and other members of his party had read William Haltom’s and Michael McCann’s new book one wonders whether they would have been so quick to hop onto the tort reform bandwagon. Did they realize how this popular brand of "common sense" was constructed, and what went into it? Did they realize that once you adopt a particular way of talking about things you inherit a whole belief system?

"Distorting the Law" provides readers with an understanding of why, when John Kerry endorsed tort reform, he unwittingly joined battle in the culture wars -- and for the wrong camp. Based on extensive interviews and an analysis of nearly two decades of news reporting in the mass media, the authors demonstrate how routine coverage of tort litigation sensationalizes carefully targeted cases -- and in the process exploits popular negative stereotypes about lawyers, perpetuates myths about the so-called "litigation crisis," and disseminates legal folktales that effectively shifts blame from corporations to "irresponsible" victims. The book vividly illustrates how legal lore coursing through the mass media frames the way most people speak and think about tort reform.

As Haltom and McCann make clear, the tort reform movement wasn’t born overnight. It took decades of concerted and patient planning. From the 1970s on, lobbyists, policymakers, intellectuals and journalists worked together to manufacture a new form of legal lore. These "populist tort reformers" drilled down deep and came up with a fine-grained common sense belief system that could be embedded in and disseminated by popular tort stories. These were mythic tales, parables really, with iconic characters and vivid details. For example, have you heard the one about the psychic who lost her powers after a CAT scan and sued for damages? How about the guy who sued after having grown addicted to milk? Or what about the elderly woman who won a $2.9 million jury verdict against McDonald’s after she spilled a cup of hot coffee in her lap?

These popular [and grossly distorted] law stories could be tag lines in a Jay Leno comedy monologue. In fact, most of them have been. And that’s the point. Told from a certain angle, these anecdotal tales are funny, and pathetic, but they pack a powerful moral punch. It’s what they’ve been designed to do. They warn us about [1] slackers, self-professed victims, who insist on blaming others for their own faults; [2] greedy and unscrupulous lawyers who play the system for cash; and [3] hapless jurors who get hoodwinked in the process. These carefully chosen narratives reveal the plague of lawyers in our midst and the litigation explosion that they’ve unleashed.

Of course, social scientists over the years have marshaled empirical data showing there is no litigation explosion. As Marc Galanter has recently written, in most forums "the absolute number of trials has undergone a sharp decline." According to Haltom and McCann, it’s a familiar scenario. The experts trot out their statistical findings and expect that "the truth shall set us free." The problem is, no one seems to be listening -- certainly not the public.

Why not? Part of the reason, as Berkeley linguist George Lakoff explains, is that "Frames trump facts." The words we hear and use, like the images we see, make sense in reference to particular frames [including images, metaphors, and anecdotes]. When Johnny Cochran tells jurors to "keep your eyes on the prize" he is cuing up images from the popular civil rights documentary by that name. Likewise, when prospective voters are shown a "menacing" image of Willie Horton or a pack of wolves, they are being cued to experience fear in connection with domestic security concerns. To comprehend or be moved by a fact, it has to fit the frame.

What, then, is the ordinary common sense frame for tort reform? In a brilliant analysis, Haltom and McCann show that it’s the same frame that dominates the conservative social policy agenda championed by President Bush and the Republican Party. At its core lies an ethos of personal responsibility, self-discipline and self-reliance. As Governor Bush admonished in his State of the State Address in 1995: "Discipline, strong values, and strict rules go hand-in-hand with our love for our children ... [We] must build community-based boot camps and detention centers ... Texas must lower to 14 the age at which the most violent juveniles can be tried as adults." Lakoff calls this the "Strict Father" frame. And it’s this frame that the tort reformers have tapped into.

Backed by conservative think tanks like the Manhattan Institute for Policy Research, and using sophisticated marketing and publicity techniques through organizations like the American Tort Reform Association, tort reformers have exploited popular scripts lifted from the culture wars play book. The moral of their stories is clear: lawyers are undermining the core ethos of personal responsibility and self-reliance by fostering frivolous "litigation lotteries" which promise undeserved windfalls.

Haltom and McCann have made a real contribution by helping us to see the connection between tort reform and the deeper cultural movement of which it is a part. Some of this, of course, is hardly new. Public relations and the engineering of consent have been with us since the early twentieth century. For example, in 1922, Walter Lippmann wrote: "A leader or an interest that can make itself master of current symbols is the master of the current situation." Over the years, spin techniques have gotten better -- the beneficiary of numerous insights garnered from social psychology, cognitive anthropology, and linguistics. In addition, the scene of spin has shifted from arenas focused exclusively upon the spoken and printed word. Advocates must now adapt their message to new forms of communication technology, most notably the ubiquitous electronic screen.

"Distorting the Law" offers an unparalleled introduction to the social construction of meaning in the tort reform domain. Its lucid and highly informative analysis invites lawyers to rethink the role and nature of persuasion in the age of mass media. It will not do simply to rail against the media for colluding with the distortions propagated by pop tort reformers, as if the absence of a countervailing frame, with an equally compelling core ethos supported by equally vivid images and anecdotes, were not also to blame. Mass culture is not about to go away. It is incumbent upon advocates to understand its various logics, counter its distortions as best they can, and harness its unprecedented power to communicate preferred values and interests.

From The Law and Politics Book Review Vol. 14 No. 9 (September 2004), pp.747-750

Reviewed by Richard L. Pacelle, Jr., Georgia Southern University

‘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.

REFERENCES:

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.

From The Law Library Journal of the American Association of Law Libraries (Fall, 2005) Vol. 97, p. 709

Reviewed by Brendan Durrett

The tort litigation crisis in the United States has been headlined in the news for decades. Politicians regularly advocate serious tort reform and warn of catastrophic results if overly aggressive litigators, greedy citizens, and runaway juries are not reined in. The general population, bombarded with news reports of huge personal injury damage awards like that of the grandmother who won nearly $ 2.9 million from McDonald’s after being scalded by hot coffee while pulling away in her vehicle, n7 readily accepts the perception that such a crisis exists.

A developing body of evidence suggests the contrary. For instance, a United States Department of Justice study of tort trials demonstrates a significant decline in overall median damage awards--from $ 64,000 in 1992 to $ 28,000 in 2001--and a 23% decline in tort jury trials since 1992. n8 In Distorting the Law: Politics, Media, and the Litigation Crisis, coauthors William Haltom and Michael McCann question the existence of the alleged litigation crisis by carefully examining the impact that retelling of "tort tales" about "frivolous lawsuits, greedy lawyers, shameless plaintiffs, and duped jurors" (p.6) has had on the tort reform movement and public opinion. Both authors have experience studying the American court system. Haltom, a professor in the Department of Politics and Government at the University of Puget Sound, has "undertaken extensive study concerning newspaper coverage of judicial action" (p.ix). McCann specializes in "theory-driven, qualitative, interpretive studies of legal mobilization" (p.ix). He is a professor at the University of Washington, Seattle, and has authored several books including the recent Rights at Work. n9

How is it that conventional American wisdom has come to blame litigants and lawyers for so many of society’s ills? Haltom and McCann bring their talents to bear on this question. Distorting the Law begins with an overview of the tort reform movement’s advocates, arguments, and evidence. Next the book describes popular media coverage of tort litigation, describing in great detail the McDonald’s coffee [*717] scalding case and tobacco litigation. With respect to the tobacco litigation, this section of Distorting the Law proposes that by focusing media attention on images of greedy attorneys and lack of personal responsibility by the plaintiffs, politicians and business have "effectively deflected critical attention away from the palpable abdication of government, not to mention corporate, responsibility regarding tobacco health dangers" (p.6). Haltom and McCann conclude Distorting the Law by arguing that the popular perception of a litigation crisis does not serve well as a basis for understanding the complexities of tort law and judging how well it functions. Further, the "reigning legal lore" of a crisis tends to inhibit potential plaintiffs from pursuing their claims and attorneys from taking these cases, which in turn undermines our society’s work toward providing basic citizen welfare and security.

Distorting the Law: Politics, Media, and the Litigation Crisis would be of great interest to readers interested in our civil legal system or tort reform, although I fear policy makers will probably ignore it. It combines a unique blend of legal research and popular culture scholarship, along with a serious examination of the relationships "between tort reform and the deeper cultural movement of which it is a part." n10 As a book of general or scholarly legal interest, Distorting the Law would be most appropriate for an academic law library. Legal scholars would also appreciate its very thorough index and list of references.