By Jeremy Pasternak

CAOC “Forum” – 2006

In an October 17, 2004 article in The New York Times Magazine, Ron Suskind quoted a senior advisor to President Bush:

The aide said that guys like me [Suskind] were “in what we call the reality-based community,” which he defined as people who “believe that solutions emerge from your judicious study of discernible reality.” I nodded and murmured something about enlightenment principles and empiricism. He cut me off. “That’s not the way the world really works anymore,” he continued. “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality – judiciously, as you will – we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors … and you, all of you, will be left to just study what we do.”

That level of hubris, to believe that reality itself has no effect on your ability to achieve your goals, to believe that you “make your own reality,” is delusional. But insofar as politics is perception, the advisor is correct; where he is wrong is the difference between perception and reality.

There is a parallel to this in the work that we do, a way of “making reality” that is actually quite effective. The forces we fight against on behalf of our clients tend to consider themselves so powerful that they also think they make their own reality. Though the “tort reform” movement is not new, I am sure we have all noticed a particular certainty in the positions that have been taken in the last several years by adjusters and other decisionmakers, as if they not only think they can sway a jury’s perception, but actually believe the outrageous positions they often take. Unfortunately, to the extent a jury’s bias can affect a verdict, they are also right. Consider a story which ran in the Los Angeles Times last year, in which an investigative report revealed that some corporations and their lobbyists intentionally spread stories about fictitious court cases to convince the public that our country has a lawsuit “crisis.” One of the examples? The story we have all heard about the Winnebago driver who left his vehicle on cruise control while he got up for a cup of coffee, and then successfully sued the manufacturer for not providing sufficient warnings.

The story is a fabrication.

The LA Times article also references the fact that this kind of disinformation campaign is particularly successful on the Internet, where the source of the lie is hard – if not impossible – to identify and through which unwitting individuals pass the information on. E-mails retelling the facts of these wholly-fabricated “suits” sometimes include a closing from a fictional law firm, stating that it is part of an effort to stamp out frivolous lawsuits and asking the reader to forward on the e-mail.

The difference, of course, between the Bush White House’s intentional ignorance of reality and the efforts of the tort-reformers (putting aside for the moment the overlap between the two) is that the Bush White House cannot by sheer desire change reality, whereas insurance companies and other corporate interests can, at least in terms of public perception, and therefore in terms of jury bias.

Every person who believes the out-and-out lies about the civil justice system is a potential juror. Juries decide what “reality” is in the context of the suits they hear. In the end, the disinformation campaigns on tort reform achieve their goals, and really do have the ability to “make their own reality.” Voir dire is a great tool, but it can’t eliminate every prejudice.

What are we to do?

1) Support CAOC

Nobody likes to be asked for money, and if there’s one thing I hate, it’s manning the phone banks. But there is no getting around it. Millions of dollars are being spent by the corporate interests on this issue. They are flat-out lying to the public. We need to do everything we can to work against these efforts at manipulating public perception, and that takes money.

2) Call It Like It Is

In the September 18, 2006 issue of The New Yorker, former President Clinton discussed the Bush advisor’s comments, and remarked, “We ought to run on that.”

Perhaps we should, as well.

Don’t soft-pedal this message. Identify lies for what they are. If someone says something that simply has nothing to do with reality, call them on it, whether you’re doing so in person, in a letter to the editor, or even in voir dire.

If you want to arm yourself with facts, go to www.protectciviljustice.org. The web-site has a great section on Facts vs. Myths that you can use.

3) Go to Trial

Insurance companies and other corporate interests may have poisoned the national jury pool, but that does not mean they have won. We do, after all, still attain favorable verdicts on behalf of our clients. But sometimes, as in the political story above, defendants and their representatives begin to believe their own spin. Once they have “drunk the Kool-Aid,” there is simply no reasonable settlement to be had and we must go to trial. In evaluating reasonable settlement positions, we should of course consider our potential jury pools. But unlike some of the defendants we encounter, that does not mean we should ignore reality. Just because they don’t see the liability, or don’t comprehend the damages, does not mean that those things are not there, and it does not mean that a jury, despite the campaigns of some, will not see them.

As a whole, this is not a fight that we can shy away from, on any of these levels. Fighting the tort reform myths is not something to be done just through contributions on a political level, your own interactions on a personal level, or in court when the issue is staring you in the face. It is a fight that has to be fought on all three levels, all the time, and if we don’t fight it, no one else will, until there will be nothing left to fight for.

Jeremy D. Pasternak has law offices in San Francisco. He is a member of the Forum Editorial Board.