You have probably heard, or even used the phrase “ambulance chaser” when discussing plaintiff’s attorneys. And if you go deeper into a discussion, the term “frivolous lawsuit” seems to pop-up.
Where did these phrases come from? Why are they so often repeated?
Phrases disparaging plaintiff’s bar and citizens that bring claims are a result of a very organized, long term political campaign waged by members of the “tort reform” movement. For several decades large corporations and insurance companies have attacked the civil justice system.
Using largely anecdotal cases (such as the woman who spilled McDonald’s hot coffee on herself) political entities have proclaimed that limiting recoveries in tort cases is necessary to preserve American business competitiveness, with the subtext being that greedy plaintiffs are recovering money which they do not deserve. These attacks have had the desired effect of enormously impacting how people think about civil litigation.
Tort reform advocates point to an “explosion” of “frivolous lawsuits.” How damage awards are “skyrocketing” and there is a “crisis” of litigation. An examination of the empirical claims of these tort reform advocates demonstrates their falsity.
The facts are that civil litigation generally is declining, and tort suits in particular have declined even more. Taking inflation into account, median jury awards are also declining. Many anecdotal claims made by advocates of tort reform are either misleading or flat out false. For example, according to a U.S. News and World Report columnist’s article “Welcome to Sue City, U.S.A.”
“A woman throws a soft drink at her boyfriend at a restaurant, then slips on the floor she wet and breaks her tailbone. She sues. Bingo – a jury says the restaurant owes her $100,000! A woman tries to sneak through a restroom window at a nightclub to avoid paying the $3.50 cover charge. She falls, knocks our two front teeth and sues. A jury awards her $12,000 for dental expenses.”
The problem with both of these stories is that they are completely fabricated. They were urban legends, circulating in spam email for two years and were actually reported by other news outlets. The columnist did not bother to investigate their authenticity.
The reason behind this campaign of misinformation by advocates of tort reform is clear: if corporations and insurance companies can convince the public that the civil system is corrupt, citizens will be less likely to enter a verdict for plaintiffs. By putting out misleading data and false anecdotes the tort reform movement has achieved a major goal without enacting any legislation: contaminating the jury pool.
As a plaintiff’s attorney, I continually try to expose this misinformation. For cites to some of the claims made above I encourage you to read John T. Nockleby’s “How to Manufacture a Crisis: Evaluating Empirical Claims Behind ‘Tort Reform.'” 86 Or. L. Rec. 533.
For a more accessible and entertaining form of information, I would highly recommend the movie “Hot Coffee” which was directed by former OTLA attorney Susan Saladoff. The film begins with the McDonald’s coffee case and what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s.
Of course, the film goes much further, but the case is used as a vehicle to challenge people’s beliefs. In the end, Hot Coffee makes a compelling argument that corporations and the media distorted the McDonald’s case and others like it, endangering the civil justice system, duping the American public and protecting corporate interests at the expense of private citizens. I hope you all see it.