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.
* * *
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.
* * *
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.