Remarks by David C. Johnson, Luncheon speaker at the Association of Trial Lawyers of America (ATLA) Annual Convention educational session titled, "Tort Reform: An International Problem With International Solutions" Boston, July 7, 2004
Here's a bad day for a trial lawyer:
You turn on the Morning Show and they're talking about how the high cost of lawsuits is raising the price of medical care.
In the morning paper there are one or two "articles" about someone suing… silly-sounding lawsuits, at least the way they are described in the articles. And an op-ed about frivolous lawsuits clogging up the courts. In Australia it's "Santa Claus judges" and "culture of blame."
In the UK it's "Compensation Culture."
Even the comics have lawyer jokes and cartoons about silly lawsuits that people file.
Driving to work a guy on the radio is talking about lawsuits driving businesses out of the state – so you change stations and the DJ is talking about greedy lawyers suing for millions because a woman spilled coffee in a moving car.
You get a haircut and the guy in the next chair is telling his barber that he heard so-and-so and he's FED UP with how lawyers are ruining the country.
On the news that night, President Bush is on, saying, and I quote from a March speech:
"We need tort reform in America. We need to make sure that -- -- frivolous lawsuits, which make it hard for people to hire, they just do." (Hey, I'm just quoting.)
[. . .] and then later he says:
"We need national medical liability reform. Frivolous lawsuits drive up the cost of health care. The Congress passed a good bill. It is stuck in the Senate. The most powerful lobby in Washington, D.C., in some estimates, are the trial lawyers. We need to make sure that doctors don't get run out of business and health care costs don't get run up because of these frivolous and junk lawsuits. Congress has got to pass medical liability reform."
It seems everyone is saying that lawsuits are out of control and we need to pass a law to … maybe you even find your friends and family starting to agree!!!!
You feel overwhelmed, under attack.
Have you had days like that?
These articles and talk shows and editorials refer to studies and reports and books and "research" by experts from institutes, and they all back each other up and all say that lawsuits are "out of control" and are harming the economy.
You may have seen these studies. You know they don't hold water.
So where are all these studies and reports and articles coming from?
Why is so much fraudulent research all over the media?
Why are people so responsive to these phony arguments? Why aren't you hearing anyone talking about the good things trial lawyers do?
Why don't people see that a strong litigation system protects them from powerful interests?
OK, what's going on here?
Some of you may know that many studies and reports have shown that the "tort reform" movement is little more than an industry-funded public relations effort, using phony "grassroots" organizations that purport to be groups of concerned citizens.
Well, you might be surprised to learn that much or most of what you are experiencing is not just coming from corporate PR firms or insurance companies or doctors' associations. Instead, much of this is coming from a network of organizations that is giving the same treatment to a number of issues.
IT'S NOT JUST YOU! This is a larger battle you are in, whether you know it or not – want it or not.
Labor unions, environmentalists, teachers, civil and women's rights advocates, advocates for the poor, almost any group with the word "community" in its name, and so many others unfortunately also find themselves in a defensive position.
Advocates for protecting the less powerful are falling behind. And it seems that many of the old arguments about sticking up for each other, community, helping the little guy and fighting back against the rich and powerful interests, are no longer effective.
How did this happen?
In a Commonweal Institute report that I authored, titled The Attack on Trial Lawyers and Tort Law, I discussed how the drive for what they call "tort reform" is a cause of what we might call the organized right – and described a network of organizations along with what I call a "communications machine."
My research shows that "tort reform" is actually just one part of a broader, coordinated, ideological "movement" that consists of a network of hundreds of "conservative" organizations, all receiving funding from a CORE GROUP of wealthy donors. (Recently there have been several books, studies and articles on this subject, such as the new Axis of Ideology report from the National Committee for Responsive Philanthropy.) They call themselves the "conservative movement," but can be more accurately described as the far right. To give you an idea of what I mean by "far right" – most of the core funders of this movement are associated in one way or another with the old John Birch Society.
Whom am I talking about? What are these conservative organizations, and why are they so effective?
Beginning about 30 years ago, a core group of wealthy far-right funders launched a long-term effort to take over what used to be called "conservatism". This group includes Richard Mellon Scaife, Joseph Coors, and the Koch, Bradley and Olin Foundations. To accomplish this, they have funded the creation of a network of organizations designed to influence public attitudes.
Many of these organizations present themselves as scholarly policy "think tanks," but in reality they are communications and advocacy organizations, marketing ideas and ideology the same way detergent is sold to the public. These kinds of organizations are set up to do sophisticated polling and focus group work along the lines of, "If you were told that a woman sued McDonald's and got $10 million because she spilled coffee trying to open a cup in a moving car – would you then be against suing corporations?" They try variations of questions like this, and collect the responses and use them to craft messages that talk about "greedy lawyers" and "frivolous lawsuits" and "Santa Claus judges."
And they are set up to distribute those stories through every possible channel through which information reaches people. Honesty and truth are not part of that equation – only winning.
These organizations are designed differently than traditional scholarly "think tanks" and other non-profits. For one thing, they are typically "multi-issue", which means that instead of having a core focus such as deregulation or anti-environmentalism or tort reform, they cover a number of varied issues and interests.
For example, one institute, the Heritage Foundation, in addition to tort reform issues, lists at their website:
[read some of the following]
Agriculture, Africa, Asia and the Pacific, Crime, Defense, Economy, Education, Energy and Environment, Europe and NATO, Family and Marriage, Federal Budget and Spending, Government Reform, Health Care, Homeland Security/Terrorism, International Organizations, Internet and Technology, Labor, Latin America, Middle East, Regulation, Religion and Civil Society, Russia and Eurasia, Social Security, Taxes, Trade and Economic Freedom, Transportation/Smart Growth, Urban Issues, Welfare
And that is just through the 'H's'.
Another, the Cato Institute, in addition to tort reform, covers [read some of the following]:
Budget and Taxes, Civil Rights, Defense and National Security, Domestic Issues, Education and Child Policy, Energy, Environment and Climate, Foreign Policy, Government and Politics, Health Care, International Economics and Development, Libertarian Philosophy, Monetary and Banking Policy, Regulatory Studies, Science and Space, Social Security, Tech, Telecom and Internet, Trade, Welfare and Workforce
Again, that's just through the 'H's'. So you see what I mean.
Because the organizations cover a number of issues, they have an economy of scale built into them. They have resident "experts" who can be a 2-for-one or even a 3-for-one deal. One salary, can talk to reporters on several issues. Costs such as printing, web site, etc. are also broken up across a number of issues. Also by being multi-issue there is an economy of scale for their marketing operations. By covering a number of issues they can better utilize large marketing staffs, polling operations, etc.
In pure marketing terms, multi-issue means that costs and customer acquisition are amortized over many issues, campaigns and years.
And – and this is key – by being multi-issue the organizations compound their persuasive power because they tie many issues together into an ideological package. This is a second feature of these organizations – they are ideological advocacy organizations.
This is a reason tort reform advocates are able to keep coming back, keep pushing, keep introducing new fronts in the war -- because they have linked tort reform to a larger ideology that they have been conditioning the public to accept. They advocate an ideology that forms the basis for their various political issue campaigns against a variety of targets, so when you defeat them in a specific initiative they just rise again.
With regard to tort law, one component of this ideological package is an emphasis on "personal responsibility." The ideology is that the individual should be responsible only for him or her self. In the metaphor – or story – this springs from, in America the individual is triumphant, work is rewarded, and irresponsibility should be punished.
People seeking or receiving assistance from others violates the "take care of yourself" rules of this mythology. Jury awards fall into this category. The woman who spilled coffee should be expected to take personal responsibility for her act – and this notion is supported by wording what the public is told, in ways that make her appear stupid and clumsy.
The flip side of personal responsibility is, "Me first!", as expressed in "Taxes are your money, not the government's," and personal retirement plans rather than Social Security. The emphasis is on primacy of the individual and punishment of what the Right calls "losers." It's not on the common needs of everyone in a society. People unable to contribute to the market have little value in this worldview.
The personal responsibility message works so well because, once one accepts the underlying ideology, it nullifies any specific issue arguments that contradict the metaphor.
It is not just ideology that drives the tort reform movement – they proudly say that one of their goals is to "defund" trial lawyers so they will no longer be able to mount an effective opposition to their political movement.
Finally, these organizations have a marketing and communications focus, reaching out to the general public with their messages. David Brock, in a new book, calls this The Republican Noise Machine. He writes,
"Heritage has eight employees doing PR work full-time, runs a 365-day-per-year, twenty-four-hour-per-day media hot line, disseminates to the press a weekly "hot sheet," has its own TV and radio studios in its Capital Hill offices, and syndicates op-eds through the Knight-Ridder wire service. [. . .] An examination of the [Heritage] Web site in Spring 2003 showed that Heritage was gaining about forty mentions in just the major print press alone each week."
The Heritage Foundation is just one of the Right's organizations. Today there are over 500 funded organizations in the Right's network.
The primary method of these organizations is the coordinated repetition of phrases designed to influence public attitudes and opinions. The "Mighty Wurlitzer" is a term people are using for the Right's communications machine. The Mighty Wurlitzer takes its name from the theater organs of the 1920s that told people how to feel about the movie on the screen.
By repeating messages through multiple channels over a sustained period of time, the Right is able to manufacture "conventional wisdom." Examples of "conventional wisdom" – things they have the public believing – include falsehoods like "Social Security is going broke," "public schools are failing,"
… And, of course, "Frivolous lawsuits are out of control."
The use of many supposedly independent organizations, all communicating the same messages through various channels, gives the impression that many learned people and respected organizations have a consensus of opinion on important issues, bringing credibility to their perspective. But these voices all turn out to be components of what amounts to one overall organization, set up and funded by this core group.
Almost everyone and everything in this movement is subsidized. The conservative columnists, pundits, authors, experts, etc. are on the payroll and available to promote a number of conservative causes including tort reform.
David Brock again, writes: "…These right-wing talking heads are on call to rebut on television every academic, expert, legislator, policy advocate, and lawyer whom the Right wishes to undermine. Thus, professors of law debate right-wing lawyers from the conservative legal centers that are heavily funded by one man, Richard Mellon Scaife; environmental activists face down industry-backed think tank "fellows"; … and so on, in an endless parade of phony staged-for-cable encounters designed to convey a sense of 'balance.' "
People, and even reporters, confronted with such a variety of supposedly valid "research" and studies done supposedly by experts, and reaching conclusions that are so different from what organizations like ATLA are saying, have no choice but to throw their hands in the air and say "How do you know WHAT to believe?"
As I said, today there are over 500 organizations in the Right's network in the U.S. alone, almost all originating from funding by this core group! One study showed that the CORE funders alone provided over $1 Billion dollars – that's billion with a B – just in the 1990s, all of it to come up with their research and articles and books and studies and reports, all of it reaching the paid-for conclusions, and then marketing this to the public-at-large. This billion does not count corporate money or general public donations.
Trial lawyers haven't been taking this lying down. You have been fighting back, making your case, lobbying, explaining the value of consumer protections, etc. But where in the past you were often successful, now something seems to have changed, and your response just doesn't seem to be working very well anymore. You are losing ground. Why are the things that used to be so effective no longer working?
As a result of the effective messaging of the Right's communication machine, the public and many politicians now accept the arguments the Right has been presenting as being fact.
Therefore, if you try to persuade the public to support a strong consumer litigation system you probably do so by appealing to certain perceived attitudes/beliefs/values, like a sense of community, sharing, being in this together, standing up for the little guy, a belief that people should be protected… It doesn't work anymore. It is no longer a given that people will agree that consumers should be protected or that corporations have too much power, etc. Times have changed. The old consensus where we all assumed that everyone shared the values of fairness, community, protecting the less strong, even helping the poor, etc. is fading. Even democracy. One idea in circulation is that the number of votes you get should reflect how much you pay in tax dollars.
The environment of public attitudes has been influenced and manipulated by these powerful organs of right-wing persuasion, and operating as if that environment still supported YOU is no longer realistic. In fact, they'll mock you as being touchy-feely.
There is a political effect from all of this messaging. For the proponents of tort reform, this influence means that the public is already prepared to accept their politicians, before they even know who is running for office. But politicians favoring YOUR positions have to explain their issues from scratch, during the election cycle, to a public that is increasingly conditioned to be hostile to trial lawyers and candidates who support them.
So, to resist tort reform you now need to work on public attitudes to affect the resulting political environment. The key term here is the RESULTING political environment. You can't just put money into lobbying or politics and elections if the public has been influenced by those using long-term ideological persuasion techniques.
Ok, I've laid out a pretty desolate picture of the situation. I see several of you ordering triple martinis.
So now I want to talk about what to do about this. I really come here with a message of hope and opportunity.
There's a simple path out of this. It's a variation on the first rule of holes – (which is stop digging.) I call it the first rule of stop losing. It's a simple rule: DO WHAT WORKS. If you are doing A, and losing again and again, and you see your opponent doing B, and winning, then figure out what B is and starting doing that.
A major part of the solution, it seems to me, is for trial lawyers to learn what works so well for the organized Right and advocates of tort reform AND USE IT AS A MODEL.
It is not a PR campaign you need, it is a counter-movement. Their "product" is corporate power. Yours is community, democracy, fairness. The rest is just sales pitch.
What I am suggesting you do is:
Think in terms of long-term strategies. Defensive, reactive responses are obviously going to be less effective than a carefully planned long-term attack. Once you have a strategy laid down, it will guide your short-term day-to-day actions.
Think in terms of changing underlying public attitudes. Realize that you can no longer take for granted that the public supports your premises. It is difficult, if not impossible, to refute tort reform arguments by addressing specific facts and issues. They'll just circulate more false stories and you can't keep up. And their stories will resonate because they are designed to fit into the bigger picture of their ideological metaphor.
You are attorneys. You are used to attacking with facts. You think that presenting facts, and refuting their false stories, and establishing the truth will win. It won't. That isn't what is going on here. This is about beliefs.
The public increasingly accepts their positions because they are being led to accept their ideology. You have to strike back at a deeper level, immunizing against the stories by reinforcing your OWN values metaphor. That requires a language and framing strategy crafted by experts.
And then your short-term actions can incorporate language and framing that is consistent with that developed for the long-term strategy. Your short-term actions will be more effective, because they will rest on this foundation of concepts and frames as they are increasingly accepted by the general public.
Think in terms of independent voices – professionals and organizations in place to spread messages that support your positions. If you try to make your case yourselves, the public's response will likely be, "Of course LAWYERS would say that!"
One of the advantages the Right has today is the appearance of INDEPENDENT EXPERTS speaking out on behalf of their issues, reaching the public-at-large. Trial lawyers should have this, too.
What I am suggesting is that trial lawyers participate in building organizations and communication channels that will reinforce the values of shared sacrifice, community, even democracy to the general public and stand up for the rights of consumers and patients.
This is key: When you increase general public support for the values that are the basis of your ideas of fairness of the tort system - then each person in whom this is reinforced will become a person supportive of your overall efforts, and not easily shaken from that support. These values bring a support that is deeper, longer lasting, and harder to erode.
You can expect legislative results from such an effort as well. People's values lead to their election choices. A voter supportive of community WILL BE a voter supporting candidates who favor protecting the rights of consumers, workers and patients.
You must provide sufficient funding to carry this effort forward! This is an investment that in the long term will pay off – it is not throwing money away. Mobilize your members. Talk to your deep pockets.
But you are not alone. Others with significant resources at their disposal are also being attacked! Think about joining forces with other powerful groups such as organized labor, teachers' associations, and others under attack and targeted for "defunding" by the "conservative movement." Of course, each of these groups will in turn benefit as the assault from the Right is turned back.
And please be smart, fund strategically – always with the long-term goals in mind, always thinking how do we build the organizations we need, to get us where we want to be in 5 or 10 years.
There currently are few organizations of the type I am discussing, because reaching out to change underlying attitudes really is a new concept – probably because until recently you could take for granted that the public-at-large supported your efforts. Not anymore. Organizations like the Commonweal Institute and the Washington-based Center for American Progress are examples of the NEW types of organizations that are reaching out to the general public with messages that counter the Right. Center for American Progress focuses on current Washington issues and major media response, which is so badly needed. Commonweal Institute focuses on language and metaphor and messages, reaching the general public over the long term to change underlying attitudes.
I asked you to think about these concepts, but let me remind you that an idea is just an idea until you have an execution plan.
In closing, I want to emphasize something about what the Right has done. It was not illegal to set up think tanks. It was not illegal to make speakers available and distribute editorials. It was not illegal to strategically coordinate their philanthropy toward long-term goals. It was not illegal to reach out to the general public and work to change their values.
It wasn't illegal, it was SMART.
Well, there are a lot of smart people in THIS room. There are a lot of smart people in THIS room.
What I am asking you to do is look at what the "conservative movement" has accomplished,
and look at HOW they have accomplished it,
...and see that this could be a model for taking American BACK,
...and for restoring the rights and protections of consumers,
...and for restoring the ideals of democracy and community,
...and say to yourselves, "I wanna get ME some of that."