Devil’s Advocate

Craig Aaron

From razor blades in the Halloween candy to shark attacks to teen “super-predators,” the media love a good scare. Such stories—a staple of the newsweeklies and local news broadcasts—are high on drama and low on facts. But they’re a big reason why Americans are afraid of the wrong things.

As Barry Glassner demonstrates in his book The Culture of Fear, statistics show you’re much safer riding in a plane than a car, and you’re far more likely to die from heart disease than a flesh-eating virus. Glassner points out that the media—not personal experience—is usually the source of such irrational anxiety.

The December 15 issue of Newsweek offers a case in point: “Lawsuit Hell,” blares the cover headline, beneath a photo of a preacher, doctor and policeman. “How fear of litigation is paralyzing our professions.” Inside is a 10-page exposé, written by Stuart Taylor Jr. and Evan Thomas, on “a legal system gone mad” that “has made us less free to use our own judgment to make common sense or humane choices about the way we live and treat others.”

The authors uncover an alleged epidemic of “legal fear.” Unnerved by the threat of a sexual harassment lawsuit, the Rev. Ron Singleton has adopted “a policy of no hugging from the front” when consoling “the lost and the grieving.” Sandra Scott, an emergency room doctor, “hears her patients threaten lawsuits—even while she’s treating them.” Neither one of them has been sued.

Taylor and Thomas also tell the story of a convict on the lam in Maine who hid from police in snowy woods. By the time they found him, he had lost two toes to frostbite. “Incredibly,” the duo writes, “the man threatened to sue the police for not catching him sooner.” Newsweek’s editors liked this story so much that they flew Penobscot County Sheriff Glenn Ross to New York for the cover photo shoot (alongside Singleton and Scott). Just one catch: The con “couldn’t find a lawyer.” No lawsuit filed there either.

If they haven’t actually been sued, why are these folks all so scared of lawsuits? Blame the media. Or better yet, blame Philip K. Howard, whom Taylor and Thomas credit with the concept of “legal fear.” Howard is a “legal reformer” who has written two books and numerous articles on the subject (which feature anecdotes bearing a remarkable similarity to those described in Newsweek). Howard, by the way, also is vice chairman of Covington and Burling, a corporate defense firm that represents tobacco, chemical and pharmaceutical companies (as well as Newsweek).

The “legal fear” storyline masks the real goals of Howard and his ilk: taking away one of the last weapons consumers have left to combat corporate and medical malfeasance. But Newsweek’s assessment that “our insistence on enforcing our ‘rights’ has made us less free” should come as no surprise. In fact, Stuart Taylor—a former corporate lawyer best remembered for a series of high-profile articles promoting Paula Jones’ case against President Clinton—made the exact same argument in a National Journal column profiling Howard two years ago. That column, which quotes only Howard, concludes “in your heart, you know he’s mostly right.”

To be fair, the Newsweek article describes some actual lawsuits. But a detailed report released in December by my colleagues at Public Citizen shows the authors’ examples are sketchy and incomplete. For example, Taylor and Thomas cite a recent California judgment in which “a couple won a $70 million judgment against Stanford University Hospital and two other healthcare centers for failing to prevent their child from becoming disabled by a rare birth condition.” Though Newsweek doesn’t say so, the jury awarded this amount to the family of 9-year-old Michael Cook after doctors failed to test for a rare but preventable metabolic disorder. If the legally required test had been performed properly, Michael could have gone on to lead a healthy life. Instead, he is fed through a tube and will never be able to work or live on his own.

Another anecdote describes a Kentucky mother who “sued her daughter’s school after the girl had performed oral sex on a boy during a school bus ride returning from a marching-band contest.” The daughter later said she had been forced—but then she was suspended for not reporting the assault sooner. Though Newsweek laments that “parents will sue for anything,” the magazine doesn’t mention that the suit seeks for the school board to set up a training course to instruct employees about sexual assault. Instead, Newsweek concludes: “If the case goes badly for the school system, such trips could be jeopardized.”

Articles like “Lawsuit Hell” succeed in planting the idea in the heads of average citizens—and potential jurors—that most lawsuits are frivolous. Taylor and Thomas claim Howard’s legal reform group, Common Good, is simply just trying “to raise public consciousness, not to lobby.” But the same corporations backing Common Good are also spending millions lobbying Congress to pass “tort reform” measures.

In fact, since the Newsweek article was published, two key Democratic senators have switched sides to end a filibuster against the “Class Action Fairness Act”—a bill that would move more class actions to federal court, where corporations anticipate a procedural advantage and more sympathetic judges. Next up on the “reform” agenda in Congress are caps on medical malpractice verdicts—which would place an arbitrary limit of $250,000 as the amount the most severely injured patients could receive for lifelong pain and suffering. Note that both these proposals would limit the legal rights of individuals but not those of corporations.

The truth is, we’re just beginning the real descent into Lawsuit Hell—a place where average citizens injured by delinquent doctors or defective products are denied any recourse. Be afraid, very afraid.

Craig Aaron is senior pro­gram direc­tor of the nation­al media reform group Free Press and a for­mer man­ag­ing edi­tor of In These Times.
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