Pop Torts: a Brief History of the Frivolous Lawsuit Moral Panic

Introduction

The idea of a “litigation crisis” in America has been largely accepted as fact for many years. Stories of greedy plaintiffs and sleazy lawyers bringing outlandish cases against businesses in capricious get-rich-quick schemes have long saturated popular media and popular opinion. Stoked by headlines like “Woman Sues TripAdvisor? After Falling off Runaway Camel,” “Red Bull Paying Out to Customers Who Thought Energy Drink Would Actually Give Them Wings,” and “Tennessee Man Sues Popeyes For Running Out of Chicken Sandwiches,” a moral panic about frivolous lawsuits has taken America by storm. More than just a national laughingstock, these fables have not only soured public opinion of lawyers and tort victims—they have also had an astounding impact on the landscape of tort litigation. Over the last few decades, advocates of “tort reform” have successfully realized much of their agenda—namely, making it harder for personal injury victims to file lawsuits, limiting available compensation and damages. For example, more than half of states have placed caps on damages malpractice cases (which in many cases have not been adjusted for inflation) and high-profile Supreme Court cases “have made structural litigation, class actions of all types, and individual civil rights claims more difficult.” Strikingly, this picture of the American legal system bears little resemblance to reality. The vast majority of viral “pop torts” stories range from wildly misrepresented to completely fabricated, forming an anthology of legal urban legends that has more in common with Bloody Mary or razor blades in children’s Halloween candy than a genuine social issue deserving of attention. The existence of the phenomenon they supposedly exemplify is similarly dubious. Studies suggest that frivolous lawsuits are rarely filed and almost invariably fail at the hands of numerous built-in procedural safeguards. Further, the tort lawsuits that allegedly plague American courtrooms have actually decreased since the tort reform movement picked up steam in the 1980s. Nevertheless, the litigation crisis narrative continues to shape popular conceptions of the American civil legal system. This essay examines the origins of the tort reform movement and “frivolous lawsuit stories” and the key role of the media in their dissemination and acceptance by the public.

Origins of Tort Reform

Driven by the postwar “legalist reformation” in America, New Deal era courts took initiative to “broaden remedies, increase accountability, lower procedural barriers, and generally increase access to litigation and redress for social injustices. This expansion of legal instruments and legal agency, and the optimism for rule-based solutions to perduring social problems spawned a counter-movement of ‘too much law’ characterized by an idiom of ‘litigation crisis’ and alarmist tort reform rhetorics.” By the 1980s, this counter-movement had garnered support from sympathetic politicians and transformed into a “full-fledged machine to implement tort reform.” In 1986, hundreds of U.S. and foreign-based corporations formed the American Tort Reform Association (ATRA), a syndicate looking to overhaul civil liability laws at the state and national level. Despite being bankrolled almost exclusively by Fortune 500 companies with a direct financial stake in restricting lawsuits—primarily representatives of the tobacco, insurance, chemical, auto and pharmaceutical industries—ATRA has worked tirelessly to cultivate a public image as an advocate for "the average citizen looking for an end to the threat of being sued." To this end, they created “a number of astroturfed groups relying heavily on phrases like ‘lawsuit abuse’ to sell a narrative that ‘frivolous lawsuits’ were running rampant” such as “Citizens Against Lawsuit Abuse.” Numerous similar groups have since emerged, such as the Institute for Legal Reform (ILR). ILR, formed in 1998, claims to “shine a light on what is wrong in the legal system” and “"champion a fair legal system that promotes economic growth and opportunity” but is actually a separately incorporated affiliate of the U.S. Chamber of Commerce—which is not a US federal agency, but the world’s largest business organization and America’s largest lobbying group. Over the next few decades, these organizations weaponized faux-populist sensationalism to advance a narrative of frivolous lawsuits run amok. This proved extremely effective—by 2005, 49 states had enacted at least one measure on the ATRA’s wish list, including limits on punitive damages and caps on pain and suffering awards in medical malpractice claims. One of their most favored tactics was combing through dockets nationwide to find the most “ridiculous” lawsuits, publishing them, and bringing them to the attention of media outlets.

The Role of Mass Media

The media has played a key role in the tort reform movement’s success in both the courtroom and the collective consciousness. Although some evidence indicates a degree of purposeful cooperation between the two parties, the media has, at times, also been an unwitting participant in the ascendancy of the “litigation crisis” narrative. Concern over frivolous lawsuits is a quintessential example of a moral panic, a phenomenon defined as “a public mass movement, based on false or exaggerated perceptions or information that exceeds the actual threat society is facing [...] a widespread fear and often an irrational threat to society's values, interests, and safety.” Like other moral panics, such as the “Satanic Panic” of the 1980s and its modern progeny, “QAnon, this one has been fueled in large part by media outlets inadvertently publishing false or misleading stories in an effort to capitalize on the “next big news” before confirming the truth of their reporting. Although some issued corrections once they realized their errors, these stories often took on a life of their own. Like a nationwide game of telephone, they became urban legends that even many self-avowed progressives parroted, all the while unaware of the fables’ origins or role in advancing a corporate agenda.

Conclusion

Since the New Deal era, corporate interests have worked behind the scenes to chip away at individual rights and limit their own accountability. This effort, fueled largely by popular stories about “frivolous lawsuits,” has been extremely successful inside and outside of the courtroom, entrenching pro-corporate ideas in law and in the American psyche.

As the unwieldy title shows, the draft is a grab bag. Too many items are considered too shallowly. So the first step to improvement is clear focus. Pick one institution, rule or practice that can be thought about carefully in 1,000 words out of the heap and dive in.

At present, substantively, the draft is an ATLA press release. It combats straw opponents only, merely using rhetoric against rhetoric. The next route to improvement is to deal with actual objections.

Consider the one argument which is never made on the plaintiffs' bar side: "US civil procedure and litigation rules don't provide anywhere near the access to real justice against corporate business that the legal system of country X provides." Because there is no X. No legal system anywhere else provides even a fraction of the leverage for individual plaintiffs to bring claims against large economic powers that is available here. So the reality of the argument must be "Even though this system provides more clout than any other, with no close second, it's still not good enough." That's a weak argument, in one sense, and absolutely irrefutable in another.

All systems of procedure seek to determine substance, and to the extent they do they are always biased in the direction of power's allies. And even so, there is no monopoly of virtue.

The very reasons that US legal institutions are so comparatively favorable to "suing upwards" (notice pleading, liberal discovery, contingent-fee retainers, no "loser pays," class action certification, civil juries) also shape the quality distribution of litigation in favor of chancier filings and nuisance litigation. Those are two indivisible strands of the same rope.

All sorts of varied experience now in its fifth decade, from clerking in a federal trial court, to working on big-firm litigation and managing small-firm litigation in my own practice, as well as ringside seats at quite a few fights, suggests to me—as it had suggested to many of my mentors, from Tom Barr to Edward Weinfeld—that the most efficient (not necessarily the most lucrative) way to litigate "upwards" is to pretend that the system of procedure is far more restricted for plaintiffs than it actually is. That means researching your claims intensively before bringing them, not learning what your lawsuit is about only after you've taken discovery. Managing discovery to minimize cost of information, getting only what has net tactical or strategic value. Never coming before the court on any issue holding only speculation, or information and belief. No doubt if the system actually required such conduct much valuable litigation would not be chanced. So that would be a strong reason to resist defendants' efforts to close up the procedural space. But if you look closely at the practices that have made long-term, highly profitable niches out of difficult work, like civil rights employment litigation or aircraft accidents, you will see that pattern of procedural self-restraint repeated. Just considering that idea for the moment, where would it lead with respect to the idea central to this draft?