Newsweek, as is typical for a newsweekly, published only a terse editorial response (see previous post) to the litigation lobby’s concerted attack on its reporting. However, Stuart Taylor, Jr., the distinguished veteran journalist who (with Evan Thomas) was principal author of the feature, has kindly consented to let us reprint his more detailed point-by-point rebuttal to ATLA’s official gripe catalogue, published under the title “Spin or Facts? A Look Behind Newsweek’s Series ‘Lawsuit Hell’“. Because of the length of Taylor’s response, we’ve split it into two posts, the first responding to the first six points of ATLA’s critique and the second responding to the rest. Check out in particular, under heading #6, ATLA’s false (and remarkably brazen) assertion that the Tillinghast study’s $233 billion estimate of the cost of the liability insurance sector includes “the cost of the entire property/casualty insurance industry” and in particular the cost of hurricanes and similar damage. (It doesn’t.)
In response to the fusillade of abuse it got from trial lawyers and their allies over its Dec. 15 cover story “Lawsuit Hell” (see Dec. 8, Dec. 12, Dec. 15), Newsweek has now published (Jan. 12 issue) a short editor’s note (reprinted at end of this post) standing by its reporting as “both accurate and fair”. (More later today on this.)
ATLA, Public Citizen et al. had complained loudly about how the magazine reported a jury award against Stanford University’s hospital as being $70 million while supposedly concealing from readers that the “present value” of this future stream of outlays was only $8 million. Newsweek’s editors respond effectively to this charge, but we will add one further point to what they say, namely that other major press outlets likewise reported the (accurate) $70 million figure at the time of the Stanford verdict. ATLA would have looked rather silly had it made clear that its complaint was about the magazine’s having followed the lead of the AP, the San Jose Mercury News, and the Recorder (PDF reprint) on this point. More: Lawyers’ Weekly USA now trumpets the Stanford case under the $71 million banner as one of its “Top Ten Jury Verdicts of 2003“.
Newsweek’s editorial note follows:
CNSNews.com reports that an American Trial Lawyers Association publication, “ATLA’s Litigating Tort Cases,” an $800 manual advertised as “the inside track to establishing and maintaining a successful tort practice,” recommends quizzing jurors on their religious beliefs during the “voir dire” procedure meant to exclude biased jurors.
The chapter classifies certain individuals as “personal responsibility” jurors. “The personal responsibility jurors tend to espouse traditional family values.” Often, “these jurors have strong religious beliefs.” Because “personal responsibility jurors” hold values such as “People should be self-reliant, responsible, and self-disciplined. When people act irresponsibly and are not self-disciplined, there are consequences. People must be accountable for their conduct,” they may not be sufficiently sympathetic to the plaintiffs.
Thus, “the only solution is to identify these jurors during voir dire and exclude them from the jury.”
A spokesman for Americans United for Separation of Church and State objects: “‘Certainly a good lawyer will try to ferret out any evidence of prejudice, whether it’s religious prejudice or racial prejudice, prejudice against women, whatever, that’s legitimate,’ [Rob] Boston said. ‘But, for a lawyer to simply assume that certain religious beliefs will dictate certain behaviors is naive and I think it does a disservice to our legal system.'” (Jeff Johnson, “Trial Lawyers Question Jurors’ ‘Strong Religious Beliefs'”, CNSNews.com, Dec. 18).
Alas, the article uncomfortably and unnecessarily singles out the Judaism of the author of the book chapter in question. But the identification of trial lawyers’ strategy in such bald terms provides interesting insight.
Plaintiffs’ lawyers are fond of accusing tort reformers of attempting to remove certain decisions from “the people”. But under the current tort system, jurors in many cases are not so much “the people” as a hand-picked group selected to favor a certain result. When one combines this biased sampling with random variation, and then combine that with the possibility of jackpot damages awards, it takes only a small minority of “the people” to create a jury pool that creates dramatic shifts in wealth to lawyers from the rest of society.
Newsweek policy states that the “My Turn” reader-submitted essays should not be “framed as a response to a Newsweek story”, but the December 22 issue features precisely such a piece from Linda McDougal. The article includes almost verbatim the half-facts from ATLA’s press packet that we refuted earlier (see Dec. 12).
A final irony: McDougal concludes her essay with “I also know that if all those who want to restrict the legal rights of ordinary citizens have their way, I wouldn’t have waited seven months for an apology from the doctors, which I got only after my story became public. I would have waited forever.” I’ll leave aside the fact that many ordinary citizens are victims of societally harmful tort lawsuits (see, e.g., Feb. 7, 2000). Has McDougal considered that perhaps the reason that the doctors waited to apologize for a mistaken mastectomy until after she went public was because they were afraid that the apology would be used against them in a lawsuit? (Linda McDougal, “My Turn: I Trust Juries?and Americans Like You”, Newsweek, Dec. 22).
The “Civil Wars” author, Stuart Taylor, was confronted with a series of questions pulled from the same ATLA press release McDougal used, and responded to them in an on-line chat. (Stuart S. Taylor, MSNBC on-line chat, Dec. 11).
Sidenote: we covered a lawsuit of a Pennsylvania parents who sued their school board because their 13-year-old daughter was suspended for a consensual sex act on a school bus (see Sep. 19). Newsweek, in its story, mentioned a superficially similar Kentucky case that involved an alleged sexual assault of a 14-year-old on a school bus, resulting in criticism from McDougal and ATLA, but also going to show that Newsweek only scratched the surface of the problem by dint of its space-limited selections for the story.
The American Trial Lawyers Association is engaging in a campaign to discredit the recent Newsweek cover story (see Dec. 8) on litigation abuses. Their “fact sheet” is riddled with half-truths, however.
For example, ATLA’s response to Newsweek’s anecdote about the Reverend Singleton is “no cause of action for clergy malpractice (ie: negligent counseling) exists in South Carolina.” The response is disingenuous: first, plaintiffs’ attorneys regularly bring lawsuits to try to create a cause of action for clergy malpractice (see, e.g., this ATLA member law firm that advertises that it has “recover[ed] large verdicts and substantial settlements” in clergy malpractice cases; perhaps your Yellow Pages has a similar ad?); while courts have generally rejected “clergy malpractice”, they frequently let identical causes of action go forward under a “breach of fiduciary trust” theory. (Gerald J. Russello, “New Jersey Supreme Court Recognizes Tort Action Against Clergy”, Federalist Society, Spring 1998). Second, Rev. Singleton spoke of the fear of being sued for inappropriate contact, not clergy malpractice.
ATLA also repeatedly pooh-poohs other pieces of the Newsweek story with variations of the following statement: “Under the Volunteer Protection Act of 1997, volunteers for non-profit organizations or government programs around the country — even those dealing with children – cannot be held responsible for their negligence.” Notice the precise language “cannot be held responsible for their negligence.” What ATLA doesn’t say is that, to get around the Volunteer Protection Act of 1997, all a trial lawyer needs to do is add a single word to the complaint: the Act provides no immunity for allegations of “gross negligence.” While the legal standard is technically different for “gross negligence” than for “negligence”, few defendants are willing to bear the risk of a jury making that distinction, especially given the potentially bankrupting effect of punitive damages. This site has identified numerous lawsuits (e.g., Nov. 16 and Sep. 15) where volunteers or sponsors of non-profit activities continue to be sued.
ATLA also defends itself by noting “The McDonald’s obesity cases were dismissed.” Will ATLA take a public stance against future fast food obesity suits? Not likely: a September 16, 2002 column by ATLA President David S. Casey asked the public to withhold judgment on the McDonald’s lawsuit until we “have all the facts”; the later (but undated) official statement of ATLA President Mary E. Alexander was similarly neutral.
One subtheme at the Association of Trial Lawyers of America’s annual meeting, held this summer in San Francisco, was ATLA’s big plans to develop influence within the Republican Party to go with its strong clout among the Democrats. A trial lawyer/GOP caucus expects soon to have chairpersons in all fifty states. “Asked by the lawyers how to talk to representatives who see them as the enemy,” a pollster and former Newt Gingrich aide offered several pieces of advice including, as a National Law Journal reporter paraphrases it, “tell them you want to give them money”. (David Hechler, “The Elephant and the Trial Lawyer”, National Law Journal, Aug. 5). Scheduled speakers at the meeting included Sens. Tom Daschle (D-S.D.), John Edwards (D-N.C.), John Kerry (D-Mass.), Barbara Boxer (D-Calif.) and Bob Graham (D-Fla.) and Reps. Dick Gephardt (D-Mo.) and Nancy Pelosi (D-Calif.).