HBO's new documentary sheds light on the misconceptions surrounding tort reform, and how civil justice already has been sold, in some cases lock, stock and gavel, to the highest corporate bidder.
I have been meaning to write about the important new HBO documentary "Hot Coffee" for the past two weeks, but it seems as though every time I have sat down to write it up a major, breaking legal story has intervened. The raucous end of another Supreme Court term. The Strauss-Kahn Spin-O-Rama. The Anthony verdict. The Roger Clemens perjury trial. The execution of Humberto Leal Garcia. All biggish meteors in the universe of American law, all flying in different directions at once.
Hot Coffee instead tells the tale of something far less sudden but far more important than the fate of a French financier or the future of Orlando's most (in)famous citizen. At its heart, the movie chronicles the demoralizing results of one of the most successful propaganda campaigns in modern American legal history. It's a tale of how corporate interests, and their dutiful tribunes in political office and on the bench, have stripped the American jury of much of its authority to dispense justice to civil litigants.
The title of the documentary suggests the film is about the famous McDonald's "hot coffee" verdict nearly two decades ago. But the narrative includes three other strong and sad legal stories, each showing in its own way the modern-day marginalization of the American jury. Essentially, the stories merge into one theme: To avoid big jury awards, and to close the doors of courthouses on tort plaintiffs and others, corporate groups have bought and paid for like-minded politicians and jurists who, in turn, have enacted or endorsed pro-business, anti-plaintiff, anti-jury legislation.
Although it is far from a perfect documentary, Hot Coffee is a worthwhile endeavor. It tells the other side of the story of "tort reform," the de-corporatized version, about plaintiffs who have lost out in the shuffle, victims not just of negligence or corporate wrongdoing but of the inapt and inept stewardship of their jury rights. As John Grisham suggests on camera during the movie, the truth is that civil justice already has been sold, in some cases lock, stock and gavel, to the highest corporate bidder. How this has happened, and why, is the story of this film.
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It's easy to blast juries over a specific case, especially when jurors, who have given up their lives for weeks or months on end without adequate compensation in the service of their country, don't give us the result we want. The job of a juror is one of the hardest and most solemn jobs a citizen ever may have in a democracy. Each day, all over the country, the jury's deliberative work is the embodiment of one of the few inherent powers of the governed over the governing.
Alexis de Tocqueville wrote hundreds of years ago in glowing terms about the American jury. He saw in it both a form of grassroots democracy—individual citizens rendering judgments that became part of the body of the law—and a civic virtue—individual citizens playing a direct role in their own governance and learning from it. Thomas Jefferson took the idea one step further. In 1789, he wrote of the jury as a bulwark against the prejudices of a single judge:
We all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does.
Because of this political and legal dynamic, because of the bond Americans still have for their juries, the forces of "tort reform" decided long ago that they would gain better traction in the court of public opinion if they blamed instead for their litigation defeats "greedy" plaintiffs or, better yet, their "greedier" trial lawyers. So, instead of candidly telling voters that "tort reform" legislation takes power and control away from their beloved juries, which it does in all tort cases, the corporate tribunes told voters that the legislation would take power away in some cases from fortune-seeking plaintiffs and their lawyers. It was the functional equivalent of the ol' bait-and-switch. And it has worked for decades with devastating public-relations effect.
So-called "tort reform" hurts the individual plaintiff and attorney from case to case, the documentary quickly reminds us through its storytelling. But those laws also diminish the authority of the American jury in every tort case by limiting the damage-award options available to it. The pro-business measures, now ubiquitous across America, take power out of the justice system and deliver it on a platter to the other branches of government. Hot Coffee makes this point, too.
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There are actually two moving parts here, one providing cover for the other. There is the substance of "tort reform" and there is the style or manner in which it has been foisted upon a largely ignorant citizenry. The documentary did a better job of identifying the latter than it did of explaining the former. The substance, the results of so-called "tort reform," is pretty much everywhere to see and virtually impossible to miss. There are rules which preclude certain types of jury awards. There are rules which dramatically limit (or "cap") damage awards to a certain amount. And there also are a great many new rules (and court rulings) designed to limit the ability of plaintiffs to even get their case heard by a jury in the first place.
We already know what corporate America thinks of "tort reform," almost all of it undermining the rights of plaintiffs and jurors while protecting the pockets of civil defendants. The movement has been both hailed and choreographed by corporate attorneys as a form of sanity restored to a tort system they say was generating too many big jury awards. The insurance companies and U.S. Chamber of Commerce tell us that businesses must have cost certainty in litigation and that damage awards by juries often have no logical relationship to the injuries occurred in a particular case.
The message has been simple: Corporations are being preyed upon by plaintiffs, trial lawyers, and juries, each of whom are involved in some sort of cosmic conspiracy to transfer wealth from the rich to the poor by virtue of a damage-award verdicts. This propaganda implies that this redistribution of corporate wealth in this fashion is unconstitutional or otherwise unfair. The narrative also pits neighbor against neighbor, juror against juror, and thereby undermines both the letter and the spirit of the Seventh Amendment, which codifies a right to civil trial by jury.
In short, the "tort reform" movement has largely succeeded in making jurors out to be anti-American vengeance-mongers, a mob of citizens unhinged by law or logic and set loose upon innocent corporations. This is all wrong. Tort reform isn't democratic because the people's wishes are being expressed through state legislation. It's anti-democratic because the lobbyists have succeeded in taking away the power of individual plaintiffs and jurors to set damage awards at an amount they feel is just. Remember, no damage award has ever been handed out to a plaintiff who lost a tort case against a company.
How has this marketing campaign been so successful for so long when it's so obviously built on so many misconceptions about the justice system? Easy. For decades, the media machine dutifully has played along. Indeed, one of the most striking parts of Hot Coffee is its consistent use of old news broadcasts to highlight the extent to which journalists, on the whole, have miserably failed to explain the true nature of "tort reform" to their audience. So many people uninformed about the nature of a jury's work! So many people underinformed about who benefits and who is burdened by tort reform!
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Which brings us to the first segment of Hot Coffee—the case of Stella Liebeck. She is the New Mexico resident who sued McDonald's many years ago after she suffered third-degree burns when she spilled a "scalding hot coffee" cup in her lap. She was sitting in the passenger seat of a parked car when the accident occurred. Liebeck asked the company to pay her medical bills. The company refused, a trial ensued, and a jury of her peers ultimately awarded Liebeck $160,000 in compensatory damages (for medical bills and the like) and $2.7 million more assessed as punitive damages against McDonald's.
The reaction to this result, as the film chronicles, was swift and severe. And also largely inaccurate. McDonald's was portrayed as a victim. Mrs. Liebeck became a laughingstock. And her jury became an unruly mob looking to give an old lady some extra dough. Few news outlets emphasized the details of the trial: that the temperature of the liquid was absurdly high, that at least 700 other McDonald's customers had at this time been injured by hot coffee, that photographs of the burns were shocking to see, that the company showed no signs of reducing the temperature in its coffee makers, that the jury apportioned some of the blame to Liebeck, and that the punitive damage amount equaled only two days worth of McDonald's coffee sales.
Were Americans immediately criticizing a verdict without having the requisite facts to render an informed judgment? Nah, it could never happen. Not here in the United States. Alas, as the film reveals, the problem isn't just that so many people were so quick to blast Liebeck and her jury without understanding why. The problem is that many of those same people today continue to remain terribly uninformed about the nature of tort lawsuits. Not every tort lawsuit is frivolous. Not every trial lawyer is greedy. Not every jury award is excessive. And not every corporate defendant is an innocent victim of a jury's cabal. If Hot Coffee delivers no other lessons than those, it is a worthwhile contribution to this weighty topic.
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Which brings us to the story of Colin Gourley, the second mini-story in Hot Coffee. Gourley has "severe brain damage" as a result of medical malpractice at his birth. When Gourley's parents sued, Nebraska law capped their damages at a total of $1.25 million, an arbitrary figure far short of the $6 million the family established it needed to take care of their son for the rest of his life. A jury, which was not told of the state cap, had awarded the family $5.6 million to help pay for Colin's care. So what happened? The law was upheld by the corporatist Nebraska Supreme Court, and the family now must use Medicaid to cover the young man's health care. Is that what Nebraska voters had in mind when they elected the men and women who capped the damages at $1.25 million? I don't know. Ask them.
The Gourley's story allows the movie to segue into an exposition of another front in the anti-jury battle: the way in which state court judiciaries have been co-opted by pro-corporate jurists, many of whom have been elected following venal campaigns for the job. Hot Coffee then also tells us the story of Olivier Diaz, a former justice of the Mississippi Supreme Court, whose reelection campaign was targeted by Karl Rove and other so-called "tort reformers" who were opposed to Diaz's candidacy because of his traditional views on the jury's role in tort cases.
Ask former United States Supreme Court Justice Sandra Day O'Connor what she thinks of judicial elections. She sees in them their pernicious impact upon justice—and the perception of justice—in the country's state court system. For the insurance companies and their fellow travelers, these judges are, well, mostly just another form of insurance. Just in case a jury renders a damage award that makes the bean counters wince, the state judiciary is there to gavel down a lower award. (Not incidentally, the same sort of disregard for the jury's work is evident now in death penalty cases in Alabama, where judges have taken to overriding jury verdicts that call for life sentences in capital cases).
Everyone has their own spin for so-called "tort reform" laws. Here's mine: In each instance, state legislators, who are elected largely through corporate donations, have acted to reduce the authority and ability of jurors to render meaningful verdicts against corporations. These lawmakers have interceded to protect corporate interests in advance, via statutes that nullify the facts of individual tort cases, with arbitrary damage caps that are designed more to protect wrongful defendants from liability than protect the victims of their wrongdoing. And the state judiciary, also now being bought and paid for in many states, has followed the lead of the legislative branch in undermining the role of the jury.
No one wants a "frivolous" lawsuit but what exactly is that, anyway? And who is better to decide what is "frivolous" or not? The lawmaker who caps out damage awards based upon the views of the lobbyist who has made a campaign contribution? Or you and your neighbor sitting in judgment on a plaintiff and her case? No want wants an "excessive" jury award but what exactly constitutes "excessive?" Was it excessive for the Gourleys to want the corporate defendants, and their insurance carriers, to pay the $6 million it will take to pay for Colin's care? Nebraska lawmakers made that decision for the family, in advance, without regard to the facts of their case. Were they better equipped than the Gourleys' jury to evaluate the definition of the word "excessive"?
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Some reviewers liked Hot Coffee and some didn't. Some said it was necessarily biased and incomplete because it was produced and directed by Susan Saladoff, a former plaintiffs' lawyer. And some said it did not go far enough in implicating the political (as opposed to the legal or judicial) nature of the country's anti-jury trend. If you are a corporate counsel, or an insurance executive, for example, you'll hate the movie more than you hate this review. But, chances are, if you are coming to this debate fresh, you'll find Hot Coffee a decent way to start a meaningful conversation about whether these so-called "reforms" are fair, just and appropriate in our civil litigation system. And at least, finally, you'll have both sides of the story.
I write "decent" instead of great because the documentary lacked a few critical elements. For example, the film should have addressed the legitimate questions raised over the past few decades by the conduct of the plaintiffs' bar. Such a critical analysis would have been particularly worthy coming from Saladoff herself, who surely can identify at least some of the ways in which trial lawyers have hurt their own cause over the years. To pretend that the problems of the tort system rest solely with corporations is as unfair and disingenuous as arguing that only plaintiffs and their lawyers are responsible for bad justice.
Another disappointment with the film is that Saladoff clearly tried to do too much at once. The four-story concept didn't work well within the short confines of a single documentary. The trail from one story to another came too quickly and there was some material—like coverage of the Citizens United ruling—that seemed slapped onto the end of the movie. Saladoff and her team might have been better off devoting their considerable energy toward producing a series of similar documentaries, called In Defense of the American Jury or something like that, each highlighting one of the stories Saladoff used to constitute Hot Coffee.
Would Americans still countenance "tort reform" if they hadn't bought into the propaganda? Would they continue to tolerate intrusions upon the authority of the jury if they better understood who benefits and who burdens from damage limitations? Those are legitimate questions—after all, Americans put up with a great many other policies that help corporations at the expense of individuals. But we'll never know the answers. We can presume, fairly I think, that if de Tocqueville and Jefferson were around today to see what corporate interests have done to the American jury, they'd be furious. So I guess it's only naturally that Hot Coffee asks instead the inevitable next question: Why aren't you, too?