Tort Reform

Consider the Tort Reform movement as a phenomenon of public relations.

This 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 Lenno 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.” It is 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 Distorting the Law: Politics, Media and the Litigation Crisis, 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.

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.

See also:

Center for Media and Democracy (on tort reform);

Commonweal Institute (on tort reform);

Yale ’62 Law home (alum on history of tort reform);

Stayfree Magazine (interview with Prof. Stuart Ewen on history of public relations movement in the United States)