The Attack on Trial Lawyers and Tort Law - Section 3

Section 3 of "The Attack on Trial Lawyers and Tort Law"

Section 3 - Effectiveness of the Tort Reform Campaign

The Right Sets the Public Agenda

In recent years, the Right and the tort reform movement have enjoyed unprecedented success in influencing both federal and state legislation and policies by: 1) using organizations perceived by the public as independent, 2) repeating the anti-tort message as consistently as possible through multiple channels, 3) employing sophisticated communications methods, 4) following a coherent long-term plan, and 5) coordinating both ideologically and tactically with the Right's network of advocacy organizations.

As a result, the Right's message amplification infrastructure successfully drowns out significant opposing voices. As People for the American Way Foundation's study "Buying a Movement" has put it:

The result of this comprehensive and yet largely invisible funding strategy is an extraordinary amplification of the far right's views on a range of issues. . . They have . . . been able to keep alive in the public debate a variety of policy ideas long ago discredited or discarded by the mainstream. . . The success of the right-wing efforts are seen at every level of government, as a vast armada of foundation-funded right-wing organizations has both fed and capitalized on the current swing to the right in Congress and in the state legislatures.[52]

Right-wing ideological premises and arguments dominate the national debate, with big money using the right-wing communications infrastructure to drown out other voices. "As one investigative journalist stated years ago in a pioneering investigation of the conservative philanthropy of Richard Scaife," wrote Sally Covington in her 1997 study, "The Strategic Philanthropy of Conservative Foundations," "layer upon layer of seminars, studies, conferences, and interviews [can] do much to push along, if not create, the issues, which then become the national agenda of debate.... By multiplying the authorities to whom the media are prepared to give a friendly hearing, [conservative donations] have helped to create an illusion of diversity where none exists. The result could be an increasing number of one-sided debates in which the challengers are far outnumbered, if indeed they are heard from at all."[53]

A May Insurance Journal article boasts:

"In my 20-plus years in this business, I don't remember a situation where both at the federal level, where the political makeup of the House and Senate . . . were majorities for the conservative side and public sentiment have lined up at the same time," said Joseph J. Annotti, a spokesperson for the National Association of Independent Insurers. "This improves the chances of getting meaningful reforms enacted. We've all learned our lessons from the past. You've got to use your political chips when you have them."

And the chips most certainly are being played. The American Tort Reform Association has publicized the results of a poll it financed in which the 800 respondents, across party lines, overwhelmingly agreed there are too many lawsuits, greedy lawyers are to blame, and they'd punish politicians who did not vote for reform by voting against them." [54]

The combined tort campaign and right-wing message amplification approach has, unfortunately, garnered significant public and legislative support. Although trial lawyer and pro-tort organizations have made significant lobbying efforts over the years, they are losing in the court of public opinion. The Insurance Journal article reports that, "83 percent of those polled agreed there are too many lawsuits in America, and 45 percent support tort reform as opposed to 6 percent who oppose it. More impressively, 67 percent of the respondents said they'd be more likely to vote for a politician who favored tort reform and 64 percent said they'd be less likely to vote for a candidate who opposed it."[55]

In June, the American Osteopathic Association's report, "Professional Liability Reform, 2002-2003 Enacted Legislation"[56] listed the following recent successes regarding tort reform:

Then, in July, 2003, the Insurance Journal reported that, "This year has been the busiest for enactment of state civil justice reform legislation since 1995, according to the American Tort Reform Association (ATRA). At mid-year, 20 states already have enacted laws; 19 laws were enacted by the conclusion of 1995. . . . Some states have not concluded legislative sessions and others have called special sessions in order to advance reforms." According to the article, Texas passed far-reaching legislation that included joint and several liability reform, limits on non-economic damages, medical liability reform and punitive damages reform. Arkansas, Idaho and West Virginia have also passed comprehensive "reforms." Additionally, "This year, eight states have enacted medical liability reforms and another 17 have considered or are still considering legislation." [57]

Influencing Jurors

Even where anti-tort legislation is not enacted, the pool of potential jurors has been inundated with tort reform messages to the point where these ideas are taken as conventional wisdom. Jurors -- even when it runs against their own personal interests as consumers -- are exercising personal tort reform by finding against plaintiffs.

In his report "Juror Perceptions About Lawsuits and Tort Reform" Dr. Richard Waites of the firm The Advocates, reports "a significant relationship between attitudes toward tort reform and verdicts," and writes that "jurors who adhere to tort reform beliefs and will apply them to achieve a more conservative verdict are also more likely to believe that individuals have a great deal of responsibility for their own conduct and outcomes. Those jurors are also less likely to hold a corporation or anyone else responsible for someone's injuries absent clear evidence and strong arguments."[58]

The Minnesota Trial Lawyer report "Tort Reform: Perception Versus Reality" reaches similar conclusions:[59]

The most notable consequence of the tort-reform media campaign is the changed attitudes of judges and jurors. The industry's campaign to portray the legal system as out-of-control and plaintiffs' lawyers as unscrupulous has impacted deliberations in the jury room. One study . . . concluded that 83% of jurors think that there are "far too many frivolous lawsuits," 57% believe that "lawsuits interfere with the development of new and useful products," and 51 % believe that "big business . . . is adequately concerned" with safety. Juries also demonstrated a reluctance to find fault in industry practices."

Achieving Their Goals

Major print and broadcast media, public opinion polls and the positions taken by politicians of both major parties make it clear that there has been a steady shift toward the tort-reform movement's and the Right's attitudes and policies. Very little that reaches the major media frames issues to the advantage of trial lawyers and injured parties. The acceptance of the term "tort reform" even by its opponents shows how effectively the right wing has managed to frame the issue.

The right-wing movement, in combination with corporate interests, has been successful not only in opposing trial lawyers, but also in getting people into government office who support their ideology. As a result, they have gained control over the legislative and administrative branches of the Federal government. With resulting appointments to the Courts, the Right and the tort-reform movement are poised to achieve their ultimate goal: passage of federal tort reform legislation that effectively "defunds" trial lawyers.

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