My Review of "Blocking the Courthouse Door"

Cross-posted to TortDeform.com last Thursday

A couple of years ago, while researching a book about tort reform, I discovered Stephanie Mencimer's reporting about the courts. Mencimer, an investigative journalist, has written extensively about how the scales of civil justice have been tipped in favor of corporations.

Her recently-published book, Blocking the Courthouse Door, explains how business interests and the Republican Party joined forces to make it tougher for the average citizen to get into court, let alone win. Mencimer gives Republican spinmeisters a great deal of credit for this phenomenon. Using phrases such as "tort reform," as well as "lawsuit abuse" and "junk science," they've had great success molding public opinion.

Mencimer also blames the media for spreading mistruths and even urban legends about litigation. Journalists are all too willing to repeat stories about greedy plaintiffs--today's version of Ronald Reagan's stereotypical "welfare queens"--and use them to paint a picture of an out-of-control civil justice system. What you won't find in those stories are the facts: the number of tort filings has fallen sharply, plaintiffs who go to trial often come home empty-handed, and the average judgment for winners has shrunk considerably.

Americans are unaware of these trends. They're still under the illusion that tort reform was aimed only at abusive litigation, and that they'll get a fair shake when it's time for them to go to court. Frank Cornelius found out otherwise, the hard way. After a botched surgical procedure, he racked up $5 million in medical bills, his marriage fell apart, and he ultimately killed himself. What makes this story ironic is that Cornelius was an insurance-company lobbyist who'd persuaded his home state of Indiana to impose a $500,000 cap on malpractice damages.

How did we get here? Mencimer traces the tort-reform movement to two sources: Big Tobacco and businessmen from Texas. A Philip Morris lobbyist named Karl Rove seized on tort reform as a way to grow the Texas Republican Party and, at the same time, starve the Democrats of cash. When the cigarette companies concluded that their courtroom winning streak was about to end, they joined forces with insurers to restrict lawsuits. They hid behind more palatable figures, such as Hilda Bankston, who allegedly sold her Mississippi drugstore after being caught in the crossfire between trial lawyers and drug companies. The facts of Bankston's story didn't stand up under investigation, which is not uncommon for tort reformers' "horror stories."

By the time the media figured out that tobacco money was funding it, the tort-reform movement had taken on a life of its own. Rove's game plan worked to perfection in Texas, where he helped elect a pro-business supreme court and launch George W. Bush's political career. Rove then took his show on the road, raising oodles of cash and using it to fund slash-and-burn campaigns against sitting justices. In my home state of Michigan, conservatives overturned 10 precedents in the first six months they had a majority. What was that again about "legislating from the bench"?

Tort reformers have demonized trial lawyers to the point that Americans view them as jet-setting high-rollers. However, the average trial lawyer's income is modest, and not very predictable either. New limits on lawsuits have made life tougher; in some states, entire firms have shut down. There are political repercussions as well. In Mississippi, tort reformers made trial lawyers' money radioactive and all but bankrupted the Democratic Party. [Aside: Now you know why Howard Dean sent those organizers into the state.]

Speaking of Mississippi, tort reformers branded Jefferson County a "tort hellhole." There's an element of racism at work here. Most so-called hellholes have a high percentage of poor and non-white residents, where corporate defendants are likely to feel the "Bronx effect," the supposed tendency of minority jurors to hand down big verdicts. Again, the facts don't bear out that claim: the most generous jurors live in the suburbs. Another myth spread by tort reformers is that punitive-damage awards have crippled corporations. However, such awards are not just rare, but so tightly capped that executives can engage in "Pinto math"--that is, calculate whether killing consumers is an acceptable cost of doing business.

One of tort reformers' biggest myths is that our courts are clogged with frivolous lawsuits. In real life, such suits are rare, and the reason should be obvious. As Mencimer observed, "the very definition of a frivolous lawsuit is one that isn't worth anything." She adds that efforts to weed out a few flimsy lawsuits end up suppressing valid ones.

Then there's the "malpractice crisis," which even President Bush has weighed in on. Mencimer argues that few doctors have been driven out of the profession by litigation, and those few probably should have been booted out for incompetence. As for the reformers' pet solution, caps on non-economic damages, it makes women and children expendable and shifts the costs of malpractice away from bad doctors.

Blocking the Courthouse Door does an excellent job of exposing tort reformers and their agenda. Unfortunately, its message can barely be heard above the right-wing noise machine. As for Mencimer, she's pessimistic about the future. The tort-reform movement shows no sign of slowing, and Americans have an irrational hatred of lawyers. It will take many more Frank Cornelius stores--and journalists willing to tell them--to turn the tide.

Note: You can read more of Stephanie Mencimer's commentary on justice issues on her blog, The Tortellini.