Wednesday, August 24, 2005

Tort Reform II

The second installment of the Los Angeles Times series on tort reform is entitled: Coverage of Big Awards for Plaintgiffs Helps Distort View of Legal System. You can rean the entire article here, for as long as it appears on their website. It starts by pointing out that big verdicts equal big news. Therefore, the media are quick to provide lavish coverage:
When a jury sticks it to a huge corporation, it's always big news. A crushing verdict of $4.9 billion against General Motors Corp. in Los Angeles drew massive media coverage, as did a $5-billion award in the Exxon Valdez oil spill case and a $144.8-billion thrashing of the tobacco industry in a Florida class action.

Mega-verdicts such as these have helped fuel legislative campaigns to overhaul the legal system by limiting lawsuits and jury awards. Driving the crusade for what business groups call tort reform is the notion that frivolous suits and jackpot judgments are strangling the economy.

While acknowledging that excesses no doubt occur, many legal observers say there is no evidence that people are filing more lawsuits or that juries are getting more generous — indeed, there is some data to the contrary. And mammoth verdicts, in the rare cases in which they occur, almost always are tossed out or sharply reduced later.

Feeding the perception of a crisis in the legal system, they say, is the way the news media cover the courts.

After the big headlines, critics say, the media often drop the ball, losing interest in what happens later. Published studies of news content and a Times examination of major recent cases show that when the immense verdicts were overturned or dramatically reduced, the news frequently was banished to the inside pages or simply not reported.

Legal experts and media observers say such coverage gives a distorted picture of the civil justice system while lending credence to fears of irrational jury awards. News coverage has reinforced the message "that the system's out of control, and that juries are using the tort system to redistribute wealth in some unjust and unprincipled way," said Robert MacCoun, a professor of law and public policy at UC Berkeley.
Of course, what almost always happens, as the article notes, is the media do not do any follow up reporting on the case as it continues its way through the civil justice system. The common myth is that "frivolous lawsuits are increasing, as are jury awards; however, the statistics do not bear this out. The popular view that there are more lawsuits and bigger damage awards than ever before is not supported by available evidence.
A 35-state survey by the National Center for State Courts found that the number of tort filings declined 4% from 1993 through 2002 despite population growth. And in the nation's 75 largest counties, the median award to victorious plaintiffs was $37,000 in 2001 — much less than the inflation-adjusted median of $63,000 in 1992, according to the Bureau of Justice Statistics, a branch of the U.S. Department of Justice.
So, why doesn't the media report these statistics? Simple--no one cares. The old addage is true: If it doesn't bleed, it doesn't lead.
If such context is absent from news reports, it's not because of media bias but "the holler of the dollar," said William Haltom, a professor of politics and government at the University of Puget Sound and co-author of "Distorting the Law: Politics, Media and the Litigation Crisis."

News coverage is "in favor of the noteworthy and the attention-arresting," Haltom said. Journalists "are expected to produce something that someone is going to want to watch, listen to or read."

"From the media's perspective, extremes are news," New York University law professor Stephen Gillers said. The humdrum workings of the legal system, with its minor traffic cases and contract disputes, he said, is "completely distorted by the emphasis on what I would call the grotesque or extreme cases."

At the same time, no one would argue for covering fender-bender suits instead of big cases with broad implications. And plaintiff victories are legitimately more newsworthy because they change the status quo — moving money around and exposing dangerous products or financial wrongdoing.
But that can give a skewed impression of what typically happens in the courts, because research shows that news coverage shapes perceptions of the frequency of events.

The fact is that plaintiffs do not prevail in reality, as much as they do in the press, since the press only covers the big hit plaintiffs, and not the defense verdicts, or the small verdicts plaintiffs are awarded. When is the last time you read a news story headline: Allstate Insurance company attorneys prevail in minimal impact auto case? It just doesn't happen. I know, because I've both defended such cases and even prosecuted some as well. Or, who remembers reading that the courts reduced the big punitive damage award the plaintiff won at trial? Such news, is not news, because people just aren't interested. It isn't exciting. It isn't provocative. It doesn't grab you by the throat. The media ignores it.
• A 1999 survey by Rand Corp.'s Institute for Civil Justice found auto liability cases were 12 times more likely to draw news coverage when plaintiffs won than when defendants did, a difference the study called "very stark." In its review of 351 trials conducted during the 1980s and '90s, the institute found that 38 of 92 plaintiff verdicts, or 41%, were featured in news reports, versus 9 of 259 verdicts for the defense — or about 3%.

A plaintiff win "is perceived to be more newsworthy than a headline that says 'jury rejects arguments that a product is unsafe,' " said Theodore Boutros Jr. of law firm Gibson, Dunn & Crutcher, who has represented Ford Motor Co., Wal-Mart Stores Inc. and various news organizations, including The Times.

Reflecting the pattern was news coverage of a June 2004 verdict in which a San Diego jury ordered Ford to pay $367 million to Benetta Buell-Wilson, who was paralyzed when her Explorer SUV rolled over and its roof collapsed. Ford previously had won a dozen similar Explorer cases but the media hardly batted an eye. Ford's victories received a smattering of coverage, mainly in business and legal publications, whereas the Buell-Wilson verdict was widely reported by the mainstream news media.

• A 1995 article in the Hofstra Law Review showed that personal injury verdicts reported in the New York Times and Newsday were dramatically higher than typical awards in the New York courts. According to the survey, awards covered by the New York-based papers over a five-year period were 13 times and 9 times higher than average, respectively.

• A 1996 survey of leading magazines such as Time, Newsweek and Fortune showed that plaintiff verdicts were "considerably overrepresented" in reports on civil litigation. The examination of 249 articles by Daniel S. Bailis and UC Berkeley's MacCoun found that plaintiffs were victorious in 85% of cases cited in the articles, compared with a real-world average of no more than 50%. Damage awards cited in the articles were also several times above the norm, leaving "little doubt that the selective reporting practices … provide a tremendously distorted picture of the jury award distribution," the study said.

A review of some recent high-profile cases by The Times showed newspapers that extensively covered huge damage verdicts seemed to lose interest when the awards were slashed or overturned. The review involved a computer database survey of articles about the cases and follow-up queries to newspaper librarians.

One such story was the $5-billion punitive damage award in the Exxon Valdez oil spill case. At the time of the verdict in September 1994, front-page reports appeared in such major dailies as The Times, New York Times, Chicago Tribune, Philadelphia Inquirer, San Francisco Chronicle, Houston Chronicle, Detroit Free Press, Dallas Morning News, Seattle Times and St. Petersburg Times.

When a federal appeals court overturned the award in November 2001, three of the 10 papers reported it on the front page.

When a Los Angeles jury in July 1999 ordered General Motors to pay a then-record $4.9 billion in compensatory and punitive damages to six people burned when the gas tank of their Chevrolet Malibu exploded after a rear-end collision, the story made the front page of leading U.S. papers — including the Washington Post, Chicago Tribune, Chicago Sun Times, Boston Globe, Philadelphia Inquirer, Detroit Free Press, San Francisco Chronicle, Ft. Worth Star Telegram, San Jose Mercury News and The Times.

Coverage was sparser a few weeks later when the trial judge trimmed the punitive damages to a still-huge $1.2 billion. Two of the 10 papers ran the story on the front page.

Then in July 2003, while the case was on appeal, it was settled for an undisclosed sum. Brief items appeared in four of the papers, while no mention could be found in the other six.

When a Florida jury socked top cigarette makers with a $144.8-billion punitive damage award, it was the lead story for many print and broadcast outlets. Front-page reports on the July 2000, verdict appeared in The Times, New York Times, Washington Post, Chicago Tribune, Boston Globe, Miami Herald, Dallas Morning News, San Francisco Chronicle, Houston Chronicle and Indianapolis Star, among others.

When a Florida appeals court overturned the award in May 2003, two of the 10 papers ran front-page reports.

Other cases reviewed by The Times showed a similar pattern.

"Journalists, by and large, are not as good as they should be in keeping up with what happens after a large verdict — even though they know full well from experience that the verdict will most likely be cut dramatically," said Tom Goldstein, a professor of journalism and mass communications at UC Berkeley. "There surely is less of an attention span than there should be."
The system has built in protections against the unjust verdict, whether too large, or even to small. As the above studies demonstrate, courts routinely reduce verdicts--yet they are un or under-reported in the press. The so called tort reformers don't bother to deal with these facts in their unrelenting assault on Americans' constitutional right to a jury trial in a civil case. The L.A. Times series on tort reform puts the hot button issue into some perspective. A perspective sorely lacking in today's clamor for tort reform at any cost, including the Constitution.

Monday, August 15, 2005

The Truth About Tort Reform

I started this post, quite sometime ago, on my personal blog. Unfortunately I never really finished the post, and now find the impetus in articles recently run in the The Los Angeles Times on the myth of tort reform. The first article ran in the 8/14/05 edition. The title speaks volumes: Legal Urban Legends Hold Sway.

It starts with the story of the Winnebago owner who puts his RV on cruise control, fixes himself some coffee, then sues and wins after he is injured:

Merv Grazinski set his Winnebago on cruise control, slid away from the wheel and went back to fix a cup of coffee.

You can guess what happened next: The rudderless, driverless Winnebago crashed.

Grazinski blamed the manufacturer for not warning against such a maneuver in the owner's manual. He sued and won $1.75 million.

His jackpot would seem to erase any doubt that the legal system has lost its mind. Indeed, the Grazinski case has been cited often as evidence of the need to limit lawsuits and jury awards.

There's just one problem: The story is a complete fabrication.
It doesn't matter to the insurance and drug industry, or the conservative movement that the story is false. It makes for good headlines, influences people, and furthers the cause of tort reform in the public eye. Compounding the problem is the fact that the newsmedia perpetrates these legends, and the people believe what they read in the newspapers and hear on television:

It is one of the more comical tales in an anthology of legal urban legends that have circulated widely on the Internet, regaling millions with examples of cluelessness and greed being richly rewarded by the courts. These fables have also been widely disseminated by columnists and pundits who, in their haste to expose the gullibility of juries, did not verify the stories and were taken in themselves.

Although the origins of the tales are unknown, some observers, including George Washington University law professor Jonathan Turley, say their wide acceptance has helped to rally public opinion behind business-led campaigns to overhaul the civil justice system by restricting some types of lawsuits and capping damage awards.

"I am astonished how successful these urban legends have been in influencing policy," Turley said. "The people that created these stories did so with remarkable skill."

The tales are making the rounds at a time when business lobbyists and conservative politicians seem to have gained the upper hand in their drive to rein in lawsuits — a campaign that they call tort reform but that trial lawyers and consumer groups say is an assault on the legal rights of ordinary people.
These tall tales are taking their toll on the constitutional rights of everyday citizens. The latest polling data clearly suggests that people believe lawsuits harm the economy:

According to the American Tort Reform Assn. — which is backed by insurance, drug, auto and other major industries — 49 states have enacted at least one measure on the group's wish list over the last two decades, including limits on punitive damages and caps on awards for pain and suffering in medical malpractice claims.

In February, President Bush signed a federal law that will make it harder to bring class-action suits in state courts.

And some polls suggest that there is public support for further change.

For example, a survey conducted for the American Tort Reform Assn. in 2003 found that by a ratio of 2 to 1, respondents believed that lawsuits were harming the economy and stifling job creation. In a survey released in June by Common Good, a conservative legal reform group, 83% of respondents said it was too easy to file invalid lawsuits, and 55% agreed with the statement that "many people use the justice system almost like a lottery — they start lawsuits to see if they can win millions."

The truth, however, is that the empirical data shows a decline in litigation:

Such fears, fanned by anecdotes like the Grazinski tale, have no empirical basis, said Joanne Doroshow, executive director of the Center for Justice and Democracy, a consumer group that opposes the agenda of the business groups. "The data tends not to support the allegation that there is an out-of-control crisis with the legal system," she said.

She and others point to surveys by the National Center for State Courts and the federal Bureau of Justice Statistics showing an apparent decline in personal injury suits and in the size of jury awards to successful plaintiffs.

Other fabricated legal legends include:

Besides the Grazinski saga, there's the mythical case of Amber Carson of Lancaster, Pa., who got into an argument with her boyfriend in a restaurant, threw a drink at him and then broke her tailbone when she slipped on the wet spot on the floor. Naturally, Carson sued — and won $113,500.

Then there's Kara Walton, a Delaware woman so eager to avoid a $3.50 cover charge that she tried sneaking into a nightclub through a bathroom window but fell and lost a couple of teeth. Walton sued and won $12,000 plus payment of dental bills.

A database search shows the Grazinski, Carson and Walton tales have been cited as true by a wide range of media outlets, including CNN; U.S. News & World Report; the American Spectator; the Oakland Tribune; the Ft. Worth Star-Telegram; the Deseret News of Salt Lake City; the Akron Beacon-Journal; the Greensboro, N.C., News & Record; and the Augusta, Ga., Chronicle.
The most cited case for needed tort reform is the infamous McDonald's hot coffee case. While this case is grounded in a real set of facts, it has nonetheless been distorted and abused by the tort reform crowd:

The cases are often listed together on Internet postings as winners of the "Stella Awards," — supposedly a dubious achievement list of the nation's most outrageous and ridiculous lawsuits. Although entirely fictitious, the Stellas take their name from the real-life case of 79-year-old Stella Liebeck, whose hot-coffee case against McDonald's became the poster child for frivolous claims.

According to popular accounts of the lawsuit, Liebeck coaxed nearly $3 million from an Albuquerque jury in 1994 after being scalded by McDonald's coffee she spilled on herself while riding in a car. These are the story's best-known elements, but filling in the missing facts puts the case in a different light.

Trial testimony showed that at 180 to 190 degrees, McDonald's coffee was much hotter than that served by other restaurants or by people in their homes. The fast-food chain had received at least 700 complaints about hot coffee in the previous decade and had paid more than half a million dollars in settlements, according to trial testimony cited by the Wall Street Journal.

Liebeck's injuries were hardly minor. She suffered third-degree burns on her thighs and groin area, was hospitalized for a week and had to undergo painful skin grafts. Before filing a lawsuit, she wrote McDonald's requesting that it lower the temperature of its coffee and cover her uninsured medical bills and incidental costs of about $20,000. McDonald's offered $800.

Later, as the case neared trial, a mediator recommended that McDonald's pay a settlement of $225,000. The company refused.

Jurors ultimately awarded Liebeck $160,000 in compensatory damages and about $2.7 million in punitive damages. "The facts were so overwhelmingly against the company," one of the jurors told the Journal. "Their callous disregard was very upsetting," another said.

Soon after the verdict, the trial judge slashed the punitive damages by more than 80% to $480,000. Then the case settled for an undisclosed amount.

"The irony about the McDonald's case is that it actually, in my view, was a meaningful and worthy lawsuit," George Washington University's Turley said. Yet advocates and pundits have "made it synonymous with court abuse."
Two other websites cited in this article worthy of mention attempt to debunk the Stella Awards are: http://www.snopes.com and http://www.stellaawards.com.

Tuesday, August 09, 2005

A Day Late and a Dollar Short


According to the Los Angeles Times, two "guilt" stricken jurors have now decided it's never too late to tell the truth. Therefore, they have now given two month post trial interviews claiming while they felt Michael Jackson guilty all along, they nevertheless both voted 14 times "not guilty" when it really counted.

The Times article notes:

Two of the 12 jurors who acquitted Michael Jackson of child-molestation charges said Monday that they were pressured to do so by other jurors and now regret their decision.

The jurors — Eleanor Cook and Ray Hultman — made their statements to interviewer Rita Cosby on cable network MSNBC. "People just wouldn't take their blinders off long enough to really look at all the evidence that was there," said Hultman, 62, of Santa Maria, Calif., where the trial was held.

As are a number of other jurors, both Hultman and Cook, 79, are planning to write books about their five months on the high-profile case. Cook's will be titled "Guilty as Sin, Free as a Bird" and Hultman's will be called "The Deliberator," according to Larry Garrison, who said he will help co-write both projects.

Garrison said neither book has a publisher. But Cook plans to share any profits with the charity Feed the Children, Garrison said.

Asked by Cosby whether their statements were motivated by money, both jurors said no.

"I'm speaking out now because I believe it's never too late to tell the truth," Cook said.
Never too late to tell the truth? Jurors are sworn at the begining of the trial, even before trial to tell the truth to the lawyers and judge. They are obligated and sworn to deliberate truthfully, and to render a true, honest and accurate verdict based on the evidence introduced at trial. The time to tell the truth, was at the time Judge Melville asked this jury for their verdict, not several months and book deals, and television interviews later.

Jurors Cook and Hultman now claim they were pressured by the other jurors to acquit Michael Jackson:

In their TV appearance, Hultman and Cook tried to distance themselves from the jury's decision to find Jackson not guilty, which was reached after more than six days of deliberations.

"They're the ones that let a pedophile go," Cook said. "We didn't."

Hultman speculated that a number of witnesses who offered testimony favorable to Jackson were paid off or otherwise influenced improperly — an allegation that Mesereau vigorously denied.

Hultman pointed in particular to the testimony of Deborah Rowe, Jackson's ex-wife, who stunned prosecutors when she had nothing but good things to say about the singer's parenting skills. From the outset of deliberations, the pair said, they and one other juror — Katharina Carls of Santa Maria — argued that Jackson was guilty. They said their fellow jurors refused to compromise and that a couple of them were "star-struck."

After the verdict was announced, all 12 jurors and eight alternates appeared at a news conference, giving the impression of people who respected one another and who had worked out their differences in a mature way. But the reality was far different, according to Hultman and Cook. When the group finally arrived at their verdict, Cook said, "the air reeked of hatred. And people were angry. I just felt that they could turn on me any minute and there wasn't anything I could do about it."

In their televised interview, the pair provided few specifics of the intimidation they allege. However, they said that the foreman, Paul J. Rodriguez of Santa Maria, called Cook inflexible early in the deliberations and threatened to ask the judge to remove her from the panel.


This view was contradicted by fellow juror Susan Drake:

The jurors' contention that they were coerced to vote not guilty was disputed by fellow panelist Susan Drake, 51, who was reached at her Santa Ynez home on Monday night.

Drake said that during deliberations, Hultman and Cook "were clear in expressing their feeling he might be guilty but totally clear that the evidence wasn't there and reasonable doubt prevailed."

She said that discussions in the jury room were thoughtful and courteous, hardly the intimidating environment her colleagues discussed on television.

"We would ring the bell if more than one person was talking and we would refer to the evidence and talk one at a time and present evidence we thought was appropriate," she said.


Drake also defended the jury forman:

Rodriguez could not be reached for comment Monday night. However, Drake defended him, saying the foreman was "very calm" and welcomed debate.


I find it incredible that Judge Melville would have allowed any such intimidation during this trial. I have tried a case in front of Judge Melville, and have appeared in his courtroom numerous times on various matters on behalf of clients over the last 13 years.

Judge Melville is the consumate jurist. Based on my experience in his courtroom, and from reading press accounts of this trial, I am confident that any juror, witness, court staff, or attorney who approached Judge Melville with any problem about any aspect of this case, he would have taken immediate and appropriate action.

Based on the evidence the jury had to consider in this trial, I felt Michael Jackson was guilty; however, the time for truth, Ms. Cook and Mr. Hultman, was at the time you were polled under oath for your true and accurate jury verdict. Now, is not the time, and the press is not the place for this after acquired truth. You have further tarnished our judicial and jury system with your untimely and innapropriate antics.