Richard L. Pacell, Jr.
Distorting the Law: Politics, Media, and the Litigation Crisisby William Haltom
Scholars have argued for years that this common view of the depraved ruin of our civil
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In recent years, stories of reckless lawyers and greedy citizens have given the legal system, and victims in general, a bad name. Many Americans have come to believe that we live in the land of the litigious, where frivolous lawsuits and absurdly high settlements reign.
Scholars have argued for years that this common view of the depraved ruin of our civil legal system is a myth, but their research and statistics rarely make the news. William Haltom and Michael McCann here persuasively show how popularized distorted understandings of tort litigation (or tort tales) have been perpetuated by the mass media and reform proponents. Distorting the Law lays bare how media coverage has sensationalized lawsuits and sympathetically portrayed corporate interests, supporting big business and reinforcing negative stereotypes of law practices.
Based on extensive interviews, nearly two decades of newspaper coverage, and in-depth studies of the McDonald's coffee case and tobacco litigation, Distorting the Law offers a compelling analysis of the presumed litigation crisis, the campaign for tort law reform, and the crucial role the media play in this process.
"This is an excellent study and should assume its rightful place in the pantheon of law and society studies. . . . In the end, the book becomes, for sympathetic readers, the academic equivalent of A Civil Action."
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DISTORTING THE LAW
Politics, Media, and the Litigation Crisis
By WILLIAM HALTOM MICHAEL MCCANN
THE UNIVERSITY OF CHICAGO PRESS
Copyright © 2004 The University of Chicago
All right reserved.
The Social Production of Legal Knowledge
Judith Haimes, a self-proclaimed psychic, was awarded close to $1 million by a Philadelphia jury on [sic] March 1986 after she said that a C.A.T. scan at Temple University Hospital made her lose her psychic abilities.
The above item appeared under the heading "Strange Lawsuits" on a popular Web site titled "Jokes, Jokes, Jokes from Everywhere ..." in May 2001. This single-sentence account is one version of a widely circulated narrative concerning events that had taken place several years earlier. Judith Richardson Haimes had indeed filed a medical malpractice claim after suffering a severe allergic reaction to an injection of dye prior to a CAT scan at Temple University Hospital in 1976. As the jury heard it in the 1986 civil trial, the thirty-three-year-old Ms. Haimes warned the radiologist that she had previously experienced strong allergic reactions and had been admonished to avoid iodine-based dyes. The plaintiff testified that the radiologist, Dr. Judith Hart, dismissed the warning as "ridiculous." After the doctor persisted and proposed to experiment with a small dose of the dye, Haimes finally relented. Almost immediately, the patient went into anaphylactic shock and experienced severe pain, later testifying that she felt "as if my head was going to explode" (Haimes v. Temple University Hospital and Hart). Another doctor quickly intervened, although the effects of this remedial action were later disputed. Haimes suffered from extreme nausea and vomiting along with the intense headaches for several days; welts and hives that initially appeared on her body lingered for several weeks. She testified that acute headaches continued thereafter whenever she attempted deep mental concentration.
Judith Haimes sought legal relief from the doctor and hospital for the immediate pain and other consequences of the dye injection as well as for the protracted, debilitating headaches that ended her practice as a professional psychic. National and local law enforcement officials affirmed that the plaintiff in the past had aided them in solving crimes through use of her unusual gifts, a legacy well documented for some time by Philadelphia media. At the conclusion of the four-day trial, however, Pennsylvania state court judge Leon Katz instructed the jury to ignore the latter component of her claim because Haimes failed to produce any expert testimony linking the injection of dye to her continuing headaches and alleged loss of income. Only her claim for immediate pain and suffering from the allergic reaction was to be considered. The jury returned within three quarters of an hour and awarded Haines what would have become $986,000-that is, $600,000 damages plus accrued interest. The defendant immediately moved to set aside the judgment. Four and a half months later, Judge Katz agreed, denying the award as "grossly excessive" and ordering a new trial. A second trial in 1989 was dismissed when the new judge ruled that the plaintiff's medical expert lacked qualifications. That ruling was affirmed in 1991 by a divided Pennsylvania Superior Court. In the end, Judith Haimes never received a cent for her civil claim of injury, much less adequate medical care for her malady.
Although interest in the lawsuit receded quietly, the original story developed a robust life of its own in American mass culture and politics. Initial coverage of the case in major national newspapers, wire services, and professional journals was brief but highlighted the enormous sum of money that the jury had awarded, ostensibly for the bizarre claim of the plaintiff. The Los Angeles Times (1986a) headline was typical: "Says Her Powers Vanished, 'Psychic' Awarded $988,000 in Hospital CAT-Scan Lawsuit." The New York Times (1986) was pithier: "Woman Wins $1 Million in Psychic Power Suit." Local newspapers freely traded pretenses of objectivity for derisive humor about the case. Headlines such as "Jury Sees $1M for Psychic," "But Didn't She Know before She Got There?" and "Psychic 'Sees' Victory, but Loses Her Powers" were featured prominently in dailies. News reports announcing the dismissal of the award were soon overtaken by published accounts that selectively translated the event into an entertaining morality tale about excessive litigiousness. One such account in Playboy, titled "Psychic Whiplash," began:
"In those days, we didn't have insurance," said Mel Brooks in character as the 2000-Year-Old Man. He was explaining what people did 20 centuries ago when they were run down by a lion. "You just lay there till you got better." In these greedy times, it seems, all you have to do is lie there until a personal-injury lawyer spots you, get the name of the lion's insurance company and litigate for the kind of money that has to be moved around on hand trucks.
The fable quickly became a symbol for the thriving national tort reform movement. In a speech that was widely distributed and published in Vital Speeches of the Day, Robert Malott, a corporate CEO and chair of the Business Roundtable, cited the anecdote about the psychic along with other incidents as examples of jury awards that "strain credulity" (Malott 1986). A Washington Post editorial entitled "Liability Reform Is Coming" contended in the same vein that "jury awards such as the one for the Philadelphia psychic that shock the public ... aid the cause of the reformers." The story provided the lead example for articles at home and abroad about President Reagan's commitment to "rein in galloping damages" awards in tort cases (see London Times, April 3, 1986, p. 9A). In 1987, a year after the verdict, Reagan invoked the story at a luncheon of physicians and surgeons to assail a legal system gone awry at the expense of deserving citizens, including new mothers and their children.
Last year a jury awarded one woman a million dollars in damages. She claimed that a CAT scan had destroyed her psychic powers. (Laughter.) Well, recently a new trial was ordered in that case, but the excesses of the courts have taken their toll. As a result, in some parts of the country, women haven't been able to find doctors to deliver their babies, and other medical services have become scarce and expensive. (Galanter 1998b, 727)
The tale continued to circulate during subsequent years in publications aimed at professional business managers and policy elites. Pundit Peter Huber repeated the anecdote in his widely recognized book Galileo's Revenge (1991a, 4) and companion Forbes article (1991b) as a classic case of "junk science" that routinely permeates our courts. Somehow Huber transformed an unorthodox malpractice claim that was thrown out of court for lack of expert evidence into an example of routine failure by the civil courts and subversion of the law by fraudulent science. President Bush's Council on Competitiveness (1991) soon thereafter drew on Huber's transformed tale, this time trimming recognition that the case had been dismissed while emphasizing that the award represented "commonplace" abuses of the civil legal system. Indeed, one business executive in a Washington, D.C. public relations and lobbying firm advised that an effective challenge to trial lawyers was to "make Judith Haimes into as notorious a public figure as Willie Horton was in the 1988 presidential campaign" (Galanter 1998b, 729; see also Nye 1992). The story was later recounted prominently in tort reform advocate Walter Olson's high-profile volume The Litigation Explosion: What Happened When America Unleashed the Lawsuit (1991) and, based on Olson's account, Charles J. Sykes's A Nation of Victims: The Decay of American Character (1992). In both instances the Haimes case again was invoked as a "typical" example of the two closely related epidemics in American culture clearly signaled by each book's respective title. Harvard Law professor W. Kip Viscusi similarly opened a 1991 book-Reforming Products Liability-with an account of the "outrageous" episode that was intended to support his argument for systematic tort reform.
Once widely legitimated by prominent public intellectuals, the Haimes story was freely recycled in the mass media by journalists and reform advocates alike to illustrate commonsense charges about an inefficient, irrational, morally inverted legal system. For example, a Time magazine cover story entitled "Busybodies and Crybabies: What's Happening to the American Character" focused on the moralistic message preached in the speeches and books mentioned above, and especially in Sykes's subtitle. "Hypersensitivity and special pleading are making a travesty of the virtues that used to be known as individual responsibility and common sense," read the byline of the story that made Walter Olson's account of Haimes's ordeal the leading example of "the new area of litigious behavior that has blossomed and might be labeled emotional tort law" (Birnbaum 1991).
Alternative accounts stressing how the actual facts should have rendered the Haimes case a non-event were generated as well, to be sure. Members of the plaintiffs' bar issued rebuttals in professional journals and official Web pages that attempted to demystify the tall tale by telling "the way it really was," emphasizing that the initial jury award and eventually the case itself were dismissed (Hengstler 1986; Strasser 1987; see ATLA Web page). Ralph Nader and Wesley Smith cited the story in their 1996 muckraking book on corporate lawyers as but one of many "tort deform anecdotes" that are promulgated to mislead the public about the civil legal system. "Corporate propagandists simply refuse to let the actual facts get in the way," the authors protested (1996, 275). Social scientists and other scholars in the nation's law schools likewise challenged the story (Saks 1992). Law professor Marc Galanter in particular made the attention given to the Haimes story the lead case study in one of his many law review articles aiming to unmask tort reform rhetoric during the 1990s. He, like other social scientists, emphasized not only that the facts of the popular account were wrong or misleading, but also that the initial jury award was highly atypical of jury actions generally (1998b; Daniels and Martin 1995).
However, legal professionals and social scientists tended to publish their challenges to the tort reform movement in law reviews, professional journals, and other esoteric scholarly venues that few citizens or policymakers read. By contrast, populist tort reformers, although often writing for targeted audiences, managed to find much more popular outlets for their narratives. The derisive accounts of the Haimes case, for example, were widely cited in articles, editorials, letters, and book reviews published in the general print media as well as in popular books, as cited above (see also Perkins 1992; Dirck 1993; Griffin 1996). The fact that a popular president and a later president's special advisory council publicly repeated the story amplified the anecdote further, infusing it with sufficient cultural vitality to thrive into the new millennium.
Common Sense about Law in the United States
The "strange lawsuit" portrayed above indeed has become a well-known "joke," as our opening reference suggested. Yet we hope to demonstrate in this book that anecdotal narratives like this one, which we label "tort tales," convey serious meaning and exercise pervasive interpretive power in modern American society. Years of retelling have made the CAT scan episode a favored narrative among the widely circulating horror stories about frivolous lawsuits, greedy lawyers, shameless plaintiffs, and duped jurors. These narratives, we argue, are one important component in a powerful tradition of legal lore permeating contemporary mass culture. Tort tales in the news complement and feed on the relentless litany of lawyer jokes (Galanter 1998a), humorous caricatures of litigious attorneys that populate movie and television screens (Bergman and Asimow 1996; Denvir 1996; Jarvis and Joseph 1998), bombastic moralizing by prominent public intellectuals about excessive "rights talk" (Boot 1998; Glendon 1991; Olson 1991), and ritualized daily discourse among citizens bemoaning lawyers, litigation, and legalization (Greenhouse, Yngvesson, and Engel 1994; Miller and Sarat 1980-81). Indeed, assumptions about an "epidemic" of civil litigation, a surfeit of rights claiming, and a legal system run amok became conventional wisdom in late-twentieth-century America. The underlying logic was succinctly expressed in the title of Philip K. Howard's widely publicized 1994 book The Death of Common Sense: How Law Is Suffocating America. And these pervasive allegations about civil law are but one dimension of a larger assault on rights entitlements, legal challenges to hierarchy, and democratic appeals to courts that have fueled the culture wars in American society over the past several decades. The aforementioned comparison of Judith Haimes to Willie Horton well represents the linkage among familiar stories regarding law's routine subversion by uncivil action. Such connections provide just one example of how mass media seize on dramatic anomalies as a way of normalizing the atypical so that it becomes, over time, a matter of "common sense."
These negative narratives and notions about civil law, and tort law in particular, have permeated our official political discourse. President Reagan's propensity to recount tort tales and lament an excess of lawyers was echoed by Vice President Dan Quayle (1994). The same general themes have been reiterated in various tones by prominent jurists and a host of national and state politicians. Indeed, highly visible campaigns for tort law reform swept the country following the mid-1980s, bringing about changes at the state level through legislation, initiatives, and referenda. The alleged conventional wisdom informing these crusades was clearly articulated in the mid-1990s when the Republican-led "Contract with America" promised tort reform and led to the federal Common Sense Legal Reforms Act of 1995 (H.R. 10) and Common Sense Product Liability Legal Reform Act (H.R. 956 1996). President George W. Bush proudly made the assault on trial lawyers and reform of tort law a prominent part of his legacy as Texas governor in the latter part of this time period. In fact, Bush, his Democratic rival, and both parties' vice-presidential candidates all unabashedly embraced the cause of national tort reform in the 2000 presidential election. The only figure in the electoral contest to challenge this conventional wisdom was Ralph Nader, who garnered about 3 percent of the national vote.
Excerpted from DISTORTING THE LAW by WILLIAM HALTOM MICHAEL MCCANN Copyright © 2004 by The University of Chicago. Excerpted by permission.
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Meet the Author
William Haltom is professor in the Department of Politics and Government at the University of Puget Sound and the author of Reporting on the Courts. Michael McCann is the Gordon Hirabayashi Professor for the Advancement of Citizenship at the University of Washington, Seattle. He is the author of several books, most recently the award-winning Rights at Work.
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