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A version of this article first appeared in TRIAL magazine.
Jury Verdict Award Amounts: Fact, not Fiction
Plus, a prescription for positive PR for plaintiffs' attorneys
by Amy Singer, Ph.D.
When it comes to the subject of "excessive" jury awards, as weighed against the larger question of justice in and out of our courts for plaintiffs, truth is very much on the side of plaintiffs, and the plaintiffs' bar. Let's put the propaganda aside and consider some facts.
The supposed jury crisis we constantly hear so much about today is based on several false claims. The anti-jury forces state that products liability cases cost American businesses $100 billion a year. The true cost is $4 billion annually, according to the National Association of Insurance Commissioners. That's less than what Americans spend each year on dog food.
Furthermore, the number of products liability cases has been declining. Russell F. Moran, publisher of The New York Jury Verdict Reporter, writes in The New York Times that, from 1985 to 1991, the number of products liability cases (excluding asbestos claims) in the Federal courts decreased by 40 percent. And products liability cases amount to only about 4 percent of tort cases filed in state courts, according to a report published in 1994 by the National Center for State Courts.
In terms of medical malpractice, Public Citizen Congress Watch reports that malpractice insurance accounts for less than one-half of one percent of total health care costs; and that doctors spend about the same amount of their gross income on "professional car upkeep" as they do on malpractice insurance. Only one out of 10 malpractice victims even file claims. Only one in 25 victims gets anything in the way of compensation. And of those who sue and are awarded damages, very few receive payments that are unjustified, according to a study published two years ago in the Annals of Internal Medicine.
Nor is it true that runaway juries are coming down increasingly on behalf of plaintiffs. An authoritative study by Jury Verdict Research, of Horsham, Pa., indicates that the proportion of personal injury cases won by plaintiffs dropped from 68 percent in 1989 to 52 percent in 1992. Furthermore, the study shows that average damages award amounts have hardly changed.
Only around five percent of civil cases filed in state courts (one million of 19.7 million cases filed) are tort cases, according the National Center for State Courts report referred to above. (Most cases are contract and matrimonial disputes.)
So, where, exactly, is the much vaunted litigation crisis?
High stakes involved
Powerful business, industry, health, and insurance interests, along with their PR and publicity minions, have a tremendous stake in making it as difficult as possible for plaintiffs to successfully sue for damages. A case in point: Medical negligence in hospitals is the third-leading cause of preventable death in America, accounting for 80,000 deaths annually, according to a Harvard University study. What would the situation be like if angry family members were able to successfully sue for full and fair damages in each of these cases?
Or consider how vital it now has become for the tobacco industry to limit plaintiffs' rights, in light of what we have learned during the past few years regarding various cigarette companies' shady research, product development, and marketing practices; and of course, what subsequently appears to be their increased liability posture.
Must fight fire with fire
This brings us to a key challenge facing the plaintiffs' bar today, i.e., countering the massive anti-jury/anti-plaintiff propaganda wave that continues to roar across America. Plaintiffs' attorneys and their allies must join forces and institute their own publicity and PR campaigns to educate American citizens about the truth concerning juries, damages awards, and related issues. After all, the truth is on our side.
Plaintiffs' attorneys should begin to redirect a portion of their marketing budgets away from cutthroat advertising against each other, and towards joint PR programs that promote plaintiffs' rights (along with the attorneys who advocate on behalf of plaintiffs). These communication programs should be both educational and image-building in nature.
Additionally, plaintiffs' attorneys should take a long, hard look at their individual advertising programs. If they do, many will find them sadly wanting. Yes, many Americans are displeased with plaintiffs and the plaintiffs' bar today - and one reason for this may be the highly irritating advertising that some plaintiffs' lawyers place on TV, in the newspapers, and in the yellow pages. We've all seen and heard the annoying TV & radio spots and print ads - Some tassel-loafered, $2,500-suited, blow-dried, ultra-tanned, gold-braceleted barrister bleating:
"Hurt? Injured? Not sure? Don't worry! You deserve financial compensation! We will get it for you! And then some! Call today! We handle everything! You will win! You cannot lose!"
This ad and its spokesperson are rendered with broad brush strokes to make a point: Does anyone really believe that such obnoxious advertising accomplishes anything worthwhile? Is it any wonder that many plaintiffs' lawyers have come to be regarded as ambulance chasers when they pay good money to promote themselves in such denigrating fashion? Too many Americans think of plaintiffs' attorneys as grasping and greedy. How can advertising of this type change such an image? Indeed, if these print and broadcast ads are the way some plaintiffs' attorneys think of themselves, how then can they possibly expect Americans to regard them otherwise? Attorneys should not promote their own professional legal services as if they were trying to sell used automobiles.
I work with plaintiffs' attorneys every day. The great majority are dedicated and caring professionals, performing the absolutely vital, and even sometimes heroic, role of ensuring that everyone, no matter how poor and powerless, gets to have his or her day in court. The attorneys I know, respect, and am proud to work with bear absolutely no resemblance to the print and television ad shysters referred to above.
There are other far better ways for plaintiffs' attorneys to promote their practices than through such schlocky advertising. Adopting a worthy cause is one highly effective technique. The attorney who handles a large number of auto crash cases may want to sponsor ads on TV, or in the newspapers, for a group such as Mothers Against Drunk Driving. The attorney whose practice is comprised largely of medical malpractice cases might sponsor ads for the local chapters of the Red Cross, the American Heart Institute, or some similar organization. This type of promotion permits the attorney to keep his or her name in front of the public, but in an entirely altruistic manner.
Another worthwhile technique is to create, sponsor, and broadcast public service announcements (PSAs) regarding important safety, health, and similar concerns for the public - e.g., a commercial advising parents to always be sure and buy fire-resistant sleepwear for their small children. Such a PSA should include a brief reminder that the current universal availability of this type of protective sleepwear is a direct result of numerous liability suits successfully fought in the courts by plaintiffs' attorneys against the manufacturers of dangerously ignitable sleepwear for children.
Planning and sponsoring such advertising and PR will go a long way to improve the image of plaintiffs' attorneys in the eyes of many Americans. But the time to begin is now. The abilities of plaintiffs to pursue their interests in court for full and fair recovery for damages is a time-honored and essential part of Americans' hallowed Seventh Amendment Rights. Today, however, this basic right of plaintiffs hangs very much in the balance.
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