Key Passages and Points of False Alarm

Excerpts from: "False Alarm: How the media helps the insurance industry and the GOP promote the myth of America's 'lawsuit crisis'" (by Stephanie Mencimer, Washington Monthly, 10/2004)

Referring to the Newsweek cover story, "Lawsuit Hell":

"Not only were the particulars of the Newsweek story misleading. The essence of the story was wrong, too. Newsweek's 'onslaught' of lawsuits simply hasn't happened."

"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."

The so-called 'lawsuit crisis', by the numbers:

"According to the National Center for State Courts, a research group funded by state courts, personal injury and other tort filings, when controlled for population growth, have declined nationally by 8 percent since the 1975, and have been falling steadily in real numbers since 1996. The numbers are even more dramatic in places with rapid population growth, like Texas, where the rate of tort filings fell 37 percent between 1990 and 2000. Even in liberal California, the rate of filings has plummeted 45 percent over the past decade."

"In 2001, they [juries] voted against plaintiffs in 75 percent of all medical malpractice trials, according to the federal government's Bureau of Justice Statistics (BJS)."

In the media Newsweek is the rule, not the exception:

"Unfortunately, Newsweek's one-sided coverage of the civil justice system is the rule, not the exception… Such skewed coverage represents a victory in a sustained, 50-year public relations assault on the civil justice system by the insurance industry, tobacco companies, and other corporate giants."

"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 [Professor of Law at Cornell University]….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 naiveté that the tort reform movement has skillfully exploited."

The long history of the insurance industry's assault on your rights:

"The current PR campaign by the insurance industry and other big corporations [to limit Americans' legal rights] is just the latest iteration of a long fight tracing back to the 1950s. That was when plaintiffs' lawyers started breaking down some of the legal barriers that had long protected industry from responsibility for injuries to workers and consumers and opened up jury pools to make them more representative of the general public."

"In 1977, the venerable insurance company Crum & Forester sponsored one of the first print ads that included what would become a staple of anti-lawsuit rhetoric: the fictional lawsuit horror story."

"In the mid-1980s, with insurance companies hitting a slump, the insurance industry's 'tort reform' movement, as it became known, broadened its emphasis. Instead of limiting itself to targeting individual jurors through mass media advertising, the industry began to heavily lobby legislators to restrict citizens' ability to sue."

"Politically, it was a lot easier to attack juries and trial lawyers than the popular consumer, civil rights, and environmental protection laws they enforced—or the injured victims they represented."

The myth of the 'tort tax':

"Take the idea of a 'tort tax,' the financial hit allegedly taken by every citizen because of the legal system, which [Stuart] Taylor raised in his December Newsweek article. It dates back to 1988, when Manhattan Institute fellow Peter Huber coined the term in his book, Liability, and claimed that the tort system cost Americans $300 billion a year. Three years later, the figure made its way into a speech given by Vice President Dan Quayle, who blamed lawyers for wrecking the economy. After the speech, several researchers examined the methods Huber had used to arrive at that figure. Huber, they found, had simply made it up. As The Economist observed in 1992, 'the $300 billion figure has no discernible connection to reality.'"

The end result:

"After 50 years and hundreds of millions of dollars spent convincing the public of a litigation crisis, the tort reformers have largely succeeded. There's very little that journalists won't repeat and readers won't swallow about the evils of the civil liability system."

Finally, the truth about civil lawsuits:

"The plain fact is, most lawsuits are neither ridiculous nor lucrative."

"Yet most tort lawsuits in this country—nearly 60 percent—involve simple fender-benders, and the awards are generally quite small and getting smaller. New data released in April by the Justice Department's BJS show that in state courts, the median "jackpot" jury verdict in all tort suits was a mere $37,000 in 2001—down from $65,000 in 1992."

For the full article, please visit www.washingtonmonthly.com/features/2004/0410.mencimer.html

October 2004