The Media

Creating a 'Crisis'

Despite the evidence of downward trends in U.S. litigation numbers, there is a long and vigorous campaign being pressed by business interests to convince the public that there is a tort “crisis” in our nation. The U.S. Chamber of Commerce, which represents companies and business associations across the country, has purchased at least $100 million of television and other advertising since 2001 to promote tort reform as a necessary panacea. Wall Street Journal; http://on.wsj.com/13NOZRI. The campaign has worked. As Elizabeth Thornburg of Southern Methodist University's Dedman School of Law explains, “The sheer repetition of the claims then takes on an appearance of truth, in a process known as 'social production of knowledge' ' if you repeat something often enough, people will come to treat it as general knowledge.” Thornburg, Elizabeth: “Judicial Hellholes, Lawsuit Climates and Bad Social Science: Lessons from West Virginia”; 110 W. Va. L. Rev. 1097 (2008) at 1099.

The media contributes to the ease with which the facts about tort claims are distorted by interest groups. In a study of published articles, not only were plaintiffs' verdicts reported much more often than those for the defense, but when there was an opportunity to criticize “the system,” news outlets took the opportunity to do so.

When the media makes comments on the tort system, such as in editorials, it is almost exclusively critical of “the system.” One study found that 22% of media commentary on the tort system was negative, i.e., implying it was bad for the nation's economy, criticizing how litigious the country had become, and disapproving of high lawyers' fees. Only two articles made favorable comments about juries, and only one expressed the opinion that the American tort system is working correctly. Thornburg, Elizabeth, Id. at 1099. See also Haltom, William: “Distorting the Law”; 1-25 (2004).

So then, the question becomes this: “What impact does this journalistic skew have on the public, and, more importantly, on juries?” Are jurors actually forming opinions and making decisions that are consistent with what the media feeds them? And if the business and medical communities want fewer lawsuits, is the campaign of trying to convince Americans that “everybody sues” and that juries are “jackpot juries” really counterproductive?

If the message is that everybody sues and those who do sue win big, unfair rewards, then it follows that the media and business are actually encouraging lawsuits, thus leading citizens and their lawyers to sue more, not less. Id. at 10. Michael Saks points out another way that the media colors the picture of the medical and legal communities: “Ironically, when the media takes a breather from regaling the public with stories of the litigation system 'spinning out of control,' 'individuals suing everyone in sight whenever the slightest thing goes wrong,' they report the 'tragedy of medical errors,' the 'outrage of growing neglect' of patient needs driven by managed health care or of harmful products ' and then rail against the legal system for failing to act to keep those latter problems in check.” Saks, Michael: “Public Opinion About the Civil Jury: Can Reality be Found in the Illusions?”; 48 DePaul L. Rev.; 221 (Winter, 1998).

The Media and the Jury

What about juries? If the only information the public has is from non-representative results, are juries more willing to also give large outlier awards? Does the media
influence juries to reward undeserving patients and their families while deserving patients who do not sue go uncompensated? Researchers have explored this very question.

If people have recently read an article about a large verdict, will that make them more likely to award a big verdict if they are a juror? According to one study, the answer appears to be yes, but only for a very short period of time. Platania, Judith et al.: “Media Exposure, Juror Decision-making, and the Availability Heuristic”; The Jury Expert, Nov. 2012. Available at http://bit.ly/13NTVGh. Researchers gave study participants three award amounts representing damages in a case that actually had gone to trial: $14.25 million, $4.75 million (the actual award), or $800,000. Three days or three weeks later, the study participants read a case summary with similar facts and were asked what they would award in that case. Those who had read the highest verdict amount were likely to give a much higher award in the second case, but only if they had that large award in mind from three days earlier. Those who had a three-week gap between reading the high award amount and the second case were not likely to award a large amount.

This phenomenon is known as the “availability heuristic,” which holds that we are most affected by information that is recent. But what was also interesting is how quickly the large verdict impact dissipated. What we learn may immediately affect us, but it loses its power very quickly unless reinforced over and over again. What the media campaigns by business do is to reinforce the outlier verdict repeatedly ' this is the social production of knowledge. The more we hear something, even if it is false, the more we begin to believe it is true.

So, with all of this information, can we actually say that juries are affected by the media distortion and hype? Not as much as we might think. Researchers asked the following question: “From what you know, can you give me an estimate of the typical or average amount of money that juries award as compensation in a personal injury case of the type that arises from auto accidents, injuries from defective products, medical negligence and the like?” As might be expected, the public had an inflated view of what juries do in a typical case. These researchers concluded, “The typical level of that inflation is not as great as one might expect given the newspaper reports. Clearly there is some at least implicit understanding among many if not most people that news reports are not typical ' ” Kritzer, Herbert: “ Public Perceptions of Civil Jury Verdicts; Judicature,” Vol. 85 (September-October 2001) at 80. For all the efforts of the business community to create a picture of “everybody sues” and juries are “jackpot juries,” the impact on jury decisions in individual cases appears to be limited. We know this because we have the data.

In one survey, 10% of all million-dollar payments to plaintiffs were settlements made without a lawsuit ever being filed, while just 7.5% of million-dollar payments were awarded after jury trials. Vidmar, Neil et. al.: “Million Dollar Medical Malpractice Cases in Florida: Post-verdict and Pre-suit Settlements”; 59 Vand. L. Rev. 1343 (May 2006). Juries actually award less than the plaintiff's real economic losses by a substantial amount. Conrad, Alfred et. al.: “Automobile Accident Costs and Payments: Studies in the Economics of Injury Reparation”; 248-52 (1964). Plaintiffs also have been shown to do better in front of judges than juries in controversial cases. Clermont, Kevin et. al.: “Trial by Jury or Judge: Transcending Empiricism,” 77 Cornell L. Rev. 1124, 1126 (1992). Professional compensation boards designed to replace juries in fact give much higher awards than juries do. Kinney, Eleanor et. al.: Indiana's Malpractice System: No-fault by Accident?; Law and Contemp Probs, Winter-Spring 1991, at 169, 190-91.

Finally, juries and arbitrators give similar awards, although jury awards are slightly smaller. Brady, Michael et. al.: “The Judicial Arbitration System: Its Promise and Its Shortcomings”; For the Defense, Aug. 1993, at 29, 30; Vidmar, Neil et. al.: “Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals,” 78 Iowa L. Rev. 883, 884 (1993).

When we look at all of the potential decision-makers, it is the jury that is the most frugal. So when the public opines that juries are irrational and reward undeserving plaintiffs, they are not only wrong, but are condemning themselves and their neighbors. Yet when the same citizens who criticize juries in opinion surveys actually sit in those jurors' seats, their own attitudes and behaviors are different. They forget about the media campaigns and outlier decisions, and focus on the task at hand. In fact, compared with professional decision-makers, they are at least as or more stingy. If plaintiffs are awarded less than their actual economic damages, let alone pain and suffering, juries are clearly not giving jackpot justice.

Conclusion

What is most reassuring, at the end of the day, is the following: Eighty-one percent of former jurors say that if they had a lawsuit they would want to submit it to a jury, and would be comfortable in doing so. Tsongas, Joyce et. al.: “The Ninth Circuit Courts: A View from the Jury Box”; (1986) (unpublished manuscript). For all the media hype and tens of millions of dollars spent by business in creating a perception that juries do not do the right thing, in fact they do. And they are harder on their friends and neighbors who sue than is any other group of decision-makers in society.

There are very few trials left in this country, which is a shame, because it is the community standard that actually is reflected in the real decisions that juries make. And nothing about the media has served to shake each jury's commitment to do the “right” thing.

Linda S. Crawford teaches trial advocacy at Harvard Law School.

There is a perception, in large part driven by media bias, that in America today, unlike in times past, “everyone sues.” This could not be farther from the truth. In fact, there were more lawsuits per capita in the United States in 1900 than there have been in recent years. Galanter, Marc: Real World Torts: An Antidote to Anecdote; 55 MD. L. Rev. 1093, 1103 (1996). U.S. court filings currently are in the same range, when adjusted for population, as those in Canada, Australia, New Zealand, England and Denmark. Kritzer, Herbert: “Lawyer Fees and Lawyer Behavior in Litigation: What Does the Empirical Literature Really Say?”; 80 Tex. L. Rev. 1943, 1981-1982 (2002). Indeed, despite the public's belief in our nation's litigious behavior, the number of lawyers in England, Canada and Germany increased at comparable or higher rates to U.S. lawyers during the last generation. Galanter, Marc: “News from Nowhere: The Debased Debate on Civil Justice”; 71 Denv. U. L. Rev., 77, 80 (2002).

Despite what the media would have us believe, tort filings are not what has caused an increase in overall court filings. In fact it is domestic cases ' divorce and post-divorce proceedings ' that have dramatically increased the number of overall court filings. Saks, Michael: “Do We Really Know Anything About the Behavior of the Tort Litigation System ' and Why Not?” 140 U. Pa. L. Rev., 1147, 1149, 1154, 1156 (1992). And a study by the National Center for State Courts looked at general jurisdiction courts of 17 states in the period from 1987-2001 and found that contract cases equaled or exceeded tort filings in all but four of the years. National Center for State Courts, Examining the Work of State Courts, 2002: A National Perspective from the Court Statistics Project 30 (Ostrom, Brian et al., eds., 2002).

Between 1992 and 2001, tort filings ebbed, with states seeing a median decline of 19% fewer tort filings. In sum, although the public's perception is to the contrary, the data shows that, across the board, litigation rates have been on the wane for years, especially on the tort side. Nockleby, John: “How to Manufacture a Crisis: Evaluating Empirical Claims Behind 'Tort Reform'”; 86 Or. L. Rev. 533 (2007).

Creating a 'Crisis'

Despite the evidence of downward trends in U.S. litigation numbers, there is a long and vigorous campaign being pressed by business interests to convince the public that there is a tort “crisis” in our nation. The U.S. Chamber of Commerce, which represents companies and business associations across the country, has purchased at least $100 million of television and other advertising since 2001 to promote tort reform as a necessary panacea. Wall Street Journal; http://on.wsj.com/13NOZRI. The campaign has worked. As Elizabeth Thornburg of Southern Methodist University's Dedman School of Law explains, “The sheer repetition of the claims then takes on an appearance of truth, in a process known as 'social production of knowledge' ' if you repeat something often enough, people will come to treat it as general knowledge.” Thornburg, Elizabeth: “Judicial Hellholes, Lawsuit Climates and Bad Social Science: Lessons from West Virginia”; 110 W. Va. L. Rev. 1097 (2008) at 1099.

The media contributes to the ease with which the facts about tort claims are distorted by interest groups. In a study of published articles, not only were plaintiffs' verdicts reported much more often than those for the defense, but when there was an opportunity to criticize “the system,” news outlets took the opportunity to do so.

When the media makes comments on the tort system, such as in editorials, it is almost exclusively critical of “the system.” One study found that 22% of media commentary on the tort system was negative, i.e., implying it was bad for the nation's economy, criticizing how litigious the country had become, and disapproving of high lawyers' fees. Only two articles made favorable comments about juries, and only one expressed the opinion that the American tort system is working correctly. Thornburg, Elizabeth, Id. at 1099. See also Haltom, William: “Distorting the Law”; 1-25 (2004).

So then, the question becomes this: “What impact does this journalistic skew have on the public, and, more importantly, on juries?” Are jurors actually forming opinions and making decisions that are consistent with what the media feeds them? And if the business and medical communities want fewer lawsuits, is the campaign of trying to convince Americans that “everybody sues” and that juries are “jackpot juries” really counterproductive?

If the message is that everybody sues and those who do sue win big, unfair rewards, then it follows that the media and business are actually encouraging lawsuits, thus leading citizens and their lawyers to sue more, not less. Id. at 10. Michael Saks points out another way that the media colors the picture of the medical and legal communities: “Ironically, when the media takes a breather from regaling the public with stories of the litigation system 'spinning out of control,' 'individuals suing everyone in sight whenever the slightest thing goes wrong,' they report the 'tragedy of medical errors,' the 'outrage of growing neglect' of patient needs driven by managed health care or of harmful products ' and then rail against the legal system for failing to act to keep those latter problems in check.” Saks, Michael: “Public Opinion About the Civil Jury: Can Reality be Found in the Illusions?”; 48 DePaul L. Rev.; 221 (Winter, 1998).

The Media and the Jury

What about juries? If the only information the public has is from non-representative results, are juries more willing to also give large outlier awards? Does the media
influence juries to reward undeserving patients and their families while deserving patients who do not sue go uncompensated? Researchers have explored this very question.

If people have recently read an article about a large verdict, will that make them more likely to award a big verdict if they are a juror? According to one study, the answer appears to be yes, but only for a very short period of time. Platania, Judith et al.: “Media Exposure, Juror Decision-making, and the Availability Heuristic”; The Jury Expert, Nov. 2012. Available at http://bit.ly/13NTVGh. Researchers gave study participants three award amounts representing damages in a case that actually had gone to trial: $14.25 million, $4.75 million (the actual award), or $800,000. Three days or three weeks later, the study participants read a case summary with similar facts and were asked what they would award in that case. Those who had read the highest verdict amount were likely to give a much higher award in the second case, but only if they had that large award in mind from three days earlier. Those who had a three-week gap between reading the high award amount and the second case were not likely to award a large amount.

This phenomenon is known as the “availability heuristic,” which holds that we are most affected by information that is recent. But what was also interesting is how quickly the large verdict impact dissipated. What we learn may immediately affect us, but it loses its power very quickly unless reinforced over and over again. What the media campaigns by business do is to reinforce the outlier verdict repeatedly ' this is the social production of knowledge. The more we hear something, even if it is false, the more we begin to believe it is true.

So, with all of this information, can we actually say that juries are affected by the media distortion and hype? Not as much as we might think. Researchers asked the following question: “From what you know, can you give me an estimate of the typical or average amount of money that juries award as compensation in a personal injury case of the type that arises from auto accidents, injuries from defective products, medical negligence and the like?” As might be expected, the public had an inflated view of what juries do in a typical case. These researchers concluded, “The typical level of that inflation is not as great as one might expect given the newspaper reports. Clearly there is some at least implicit understanding among many if not most people that news reports are not typical ' ” Kritzer, Herbert: “ Public Perceptions of Civil Jury Verdicts; Judicature,” Vol. 85 (September-October 2001) at 80. For all the efforts of the business community to create a picture of “everybody sues” and juries are “jackpot juries,” the impact on jury decisions in individual cases appears to be limited. We know this because we have the data.

In one survey, 10% of all million-dollar payments to plaintiffs were settlements made without a lawsuit ever being filed, while just 7.5% of million-dollar payments were awarded after jury trials. Vidmar, Neil et. al.: “Million Dollar Medical Malpractice Cases in Florida: Post-verdict and Pre-suit Settlements”; 59 Vand. L. Rev. 1343 (May 2006). Juries actually award less than the plaintiff's real economic losses by a substantial amount. Conrad, Alfred et. al.: “Automobile Accident Costs and Payments: Studies in the Economics of Injury Reparation”; 248-52 (1964). Plaintiffs also have been shown to do better in front of judges than juries in controversial cases. Clermont, Kevin et. al.: “Trial by Jury or Judge: Transcending Empiricism,” 77 Cornell L. Rev. 1124, 1126 (1992). Professional compensation boards designed to replace juries in fact give much higher awards than juries do. Kinney, Eleanor et. al.: Indiana's Malpractice System: No-fault by Accident?; Law and Contemp Probs, Winter-Spring 1991, at 169, 190-91.

Finally, juries and arbitrators give similar awards, although jury awards are slightly smaller. Brady, Michael et. al.: “The Judicial Arbitration System: Its Promise and Its Shortcomings”; For the Defense, Aug. 1993, at 29, 30; Vidmar, Neil et. al.: “Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals,” 78 Iowa L. Rev. 883, 884 (1993).

When we look at all of the potential decision-makers, it is the jury that is the most frugal. So when the public opines that juries are irrational and reward undeserving plaintiffs, they are not only wrong, but are condemning themselves and their neighbors. Yet when the same citizens who criticize juries in opinion surveys actually sit in those jurors' seats, their own attitudes and behaviors are different. They forget about the media campaigns and outlier decisions, and focus on the task at hand. In fact, compared with professional decision-makers, they are at least as or more stingy. If plaintiffs are awarded less than their actual economic damages, let alone pain and suffering, juries are clearly not giving jackpot justice.

Conclusion

What is most reassuring, at the end of the day, is the following: Eighty-one percent of former jurors say that if they had a lawsuit they would want to submit it to a jury, and would be comfortable in doing so. Tsongas, Joyce et. al.: “The Ninth Circuit Courts: A View from the Jury Box”; (1986) (unpublished manuscript). For all the media hype and tens of millions of dollars spent by business in creating a perception that juries do not do the right thing, in fact they do. And they are harder on their friends and neighbors who sue than is any other group of decision-makers in society.

There are very few trials left in this country, which is a shame, because it is the community standard that actually is reflected in the real decisions that juries make. And nothing about the media has served to shake each jury's commitment to do the “right” thing.

Linda S. Crawford teaches trial advocacy at Harvard Law School.