Trial and Error

In January 2003, President George W. Bush gave a speech in
Scranton, Pennsylvania, in which he declared that the
American health care system was broken. Too many people, he
said, couldn't get medical care when they needed it. The
solution was "getting at the source of the problem, which
are the frivolous lawsuits." The political subtext, at a
time when the Democratic presidential hopefuls -- including
former trial lawyer John Edwards -- were gearing up, was
clear: One White House aide explained that the speech was
part of "Whack John Edwards Day."

The White House has long been laying the groundwork for a
campaign against the North Carolina senator, who made his
fortune representing people with injury claims against
doctors and corporations. Bush and other Republicans have
blamed lawsuits for everything from rising health care costs
to unemployment; with Edwards on the Democratic ticket, the
GOP -- and its allies in the corporate world -- have dramatically
turned up the volume. Treasury Secretary John Snow fired the
first shot, two days after John Kerry announced his
selection: "An abusive lawsuit has never created a single
job, except for personal injury lawyers," he told an
audience in Maine, "but baseless and excessive suits have
killed many." Vice President Dick Cheney struck the
same chord at a July 12 fundraiser in Pennsylvania, saying,
"For the good of this economy, we need to end lawsuit abuse.
Junk and frivolous lawsuits put people out of work." The
Bush campaign has also unleashed a new TV ad, attacking
Kerry for missing a vote "to lower health care costs by
reducing frivolous lawsuits against doctors."

Behind those slogans are years of painstaking fine-tuning by
Republican consultants, focus groups, and corporate think
tanks. The term "lawsuit abuse" was coined in the early
1990s by Jan van Lohuizan, a Washington pollster wholater helped plan Bush's 2000 presidential
campaign. More
than 100 corporate-funded groups have been working to
convince the public that the legal system is out of control;
organizations such as the American Tort Reform Association
and Citizens Against Lawsuit Abuse, using expensive PR firms
and funds from companies like Philip Morris, have spent
years testing sound bites and spreading stories of a court
system out of control.

That multimillion-dollar investment has turned corporate
concerns about such esoteric things as "joint and several liability" into a
populist crusade to "stop lawsuit abuse" and return the
country to the good old days when old ladies who spilled hot
coffee on themselves got sympathy, not punitive damages. The
U.S. Chamber of Commerce has spent more than $100 million
over the past three years on TV ads and lobbying for
legislation to restrict citizens' right to sue, a goal
known as "tort reform." (In the courts, "tort" means an
injury, which can include anything from libel to
malpractice.) The issue is such a high priority for the
Chamber that its president, Thomas J. Donohue, moved in the
wake of Edwards' selection toward abandoning a longstanding
policy of neutrality in presidential elections. Jerry
Jasinowski, president of the National Association of
Manufacturers, told the New York Times that businesspeople
are "more frightened by [trial lawyers] than terrorists."

Yet much of the anti-lawsuit campaign is

based on dubious numbers, questionable anecdotes, and, in
some cases, out-and-out fiction. Consider Bush's claims of
a malpractice insurance crisis in Pennsylvania. Soon after
his speech, doctors marched on the Pennsylvania Capitol with
placards that cried: "Need an appendectomy? Call a trial
lawyer!" The Washington Post reported at least 1,100 doctors
had left Pennsylvania in recent years because of rising
malpractice premiums caused by lawsuits, and a Time cover
story declared that nationwide, doctors were retiring
because of higher premiums resulting from
"multimillion-dollar judgments awarded for tragic but
sometimes unavoidable outcomes."

It wasn't until nearly a year later, in April, that
Pennsylvania Medical Society chairman Daniel Glunk told
state legislators the truth: Rather than losing more than
1,000 doctors, Pennsylvania may have gained as many as 800
over the past two years. Around the same time,

the state's deputy insurance commissioner reported that
malpractice payouts had fallen for the second year in a row,
and lawsuit filings were also declining. (Not that doctors
necessarily benefited: Insurers, in Pennsylvania and
nationwide, have raised premiums even as malpractice suits
have declined.)

As for the broader "lawsuit crisis," a report from the
nonprofit National Center for State Courts found that tort
filings have been falling steadily over the past decade,
dropping by 9 percent between 1992 and 2002. In Texas, the
rate of tort filings fell by 37 percent between 1990 and
2000; in California, it plummeted 45 percent. What's more,
plaintiffs lose about half the time they go to trial in
state courts, according to the Bureau of Justice Statistics;
in medical malpractice cases, doctors win almost
three-quarters of the time.

When plaintiffs do win, the "jackpot" is getting smaller all
the time. New data released in April by the Bureau of
Justice Statistics shows that in jury trials in state
courts, the median award fell by almost half during the
1990s -- from $65,000 to $37,000. Punitive damages, the tort
reform campaign's top target, were awarded in only 6 percent
of all jury trials in 2001, and the median award was
$50,000.

Michael McCann, the director of the Comparative Law and
Society Studies Center at the University of Washington, says
anti-lawsuit rhetoric works in spite of the facts because it
feeds into well-established stereotypes. "The image of the
irresponsible plaintiff is right up there with the welfare
queen," says McCann. "That's why Americans respond to
this because it's a morality tale." Pollster Frank Luntz
once told Republican members of Congress that "it's almost
impossible to go too far when it comes to demonizing
lawyers."

But talk of a court system run amok doesn't just make good
campaign slogans. It's also a prodigious fundraising tool,
as Bush has known ever since his first race for governor of
Texas, in 1994. With encouragement from Karl Rove, then a
consultant to Philip Morris, Bush embraced tort reform as
one of his top three campaign issues. As a result, Rove
later told the Washington Post, "Business groups flocked to
us." Tort reformers also worked hard to put Bush in the
White House. In 2000, one of the Bush presidential
campaign's cochairs was Ralph Wayne, the president of the
Texas Civil Justice League, a tort reform group whose board
members include executives from Halliburton, Dow Chemical,
and other major oil and chemical companies. Wayne told
reporters that three-quarters of the league's members
supported Bush's 2000 bid.

Many of them have signed on for 2004 as well. Among Bush's
major fundraisers this year is Allan "Bud" Shivers Jr., a
board member of Texans for Lawsuit Reform. And the Bush
campaign's list of "Rangers" -- people who've pledged to raise
at least $200,000 -- includes Maurice Greenberg, chief
executive of AIG, the nation's largest liability insurance
company. Greenberg, whose company foots the bill when
doctors or companies lose lawsuits, has been a vocal tort
reform advocate. Changes to the court system are also an
issue for many of Bush's other corporate backers, including
Exxon -- which still hasn't paid a $4.5 billion judgment from
the Exxon Valdez spill -- and Halliburton, which has lobbied
hard to limit asbestos claims, a move that would save it
hundreds of millions of dollars.

As president, Bush has yet to deliver on his promises to
enact major lawsuit restrictions, in part because most of
the litigation that business is concerned with takes place
in state, not federal, courts. But that hasn't stopped him
from taking every opportunity to endorse tort reform,
including a bill to severely limit class-action suits -- the
most far-reaching change to the civil court system in
decades. (If the bill were law today, cases such as the
litigation over the diet drug fen-phen and several workers'
lawsuits against Wal-Mart would most likely not have gone
forward.)

Although 62 senators backed the legislation, it was killed
by a procedural vote in July. The effort to pass the bill is
likely to continue into 2005, and, contrary to the
Republican campaign message, it's one instance where trial
lawyers do create jobs: Major companies and business groups
have hired at least 475 lobbyists to push for the measure.