The Media

How often do we hear that “everybody sues” in the United States, and that there are “jackpot juries” handing out huge sums of money to undeserving plaintiffs? Is the media to blame for these skewed beliefs or is the media accurate in its portrayal of the tort system, especially the medical malpractice system? The answer is “yes” to the former and “no” to the latter. The bottom line is this: While the media creates the impression of an out-of-control tort system, this is out of alignment with actual jury behavior. Jury members, in fact, are harder on their own friends and neighbors than are other decision-makers.

Motivations

The media is a business and, like any business, it survives only if people are interested in what it has to sell. So, how do you sell a news story?

Our ancestors stayed alive by knowing when to activate the fight or flight response. They needed to be alert to situations out of the ordinary so they could respond. Their lives depended on it. Like them, our brains don't activate unless there is something out of the ordinary. It is anthropological. We have been hard wired to pay attention to things that are unusual. And the media knows this. We may have become inured to typical things, but we wake up and pay attention when something extreme catches our attention.'

We continue to focus on the extremes in life for longer periods of time, and they take firmer hold in our brains long-term. MacCoun, Robert: “Symposium; Who Feels Their Pain?: The Challenge of Noneconomic Damages in Civil Litigation: Article: Media Reporting of Jury Verdicts:' Is the Tail Wagging the Dog?”; 55 DePaul L. Rev. 539, 554; Winter 2006. Citing Sokolov, Ye: Perception and the Conditioned Reflex (Stefan W. Wadenfield trans., 1963); Dijkersterhuis, Ap et al.: “Affective Habituation: Subliminal Exposure to Extreme Stimuli Decreases Their Extremity,” 2 Emotion 203 (202); Fazio Russell et. al.: “On the Automatic Activation of Attitudes,” 50 J. Personality and Soc., Psychol. 229 (1986).

Media in the Courthouse

When was the last time you read a headline saying, “Plane Lands Safely,” or “There Were No Motor Vehicle Fatalities Today”? No one would be interested. Robert MacCoun offers this chain of events to explain how and why the media shapes the public perception of the tort system: “1. Journalists sample cases for their interest value, not for their statistical representativeness; 2. Our brains have evolved to give disproportionate weight to extreme stimuli; 3. Jury awards are distributed asymmetrically, bounded at zero on the left but unbounded in the right tail; 4. As a result, very large awards will attract interest, but very small awards will not; 5. Because product liability, medical malpractice and class action cases produce more extremity, they will be overrepresented in the set of attention-grabbing cases; 6. And because only plaintiff victories produce extreme awards, plaintiff victories will be over represented in the set of attention-grabbing cases, relative to defense verdicts.” MacCoun, supra at 552.

Research shows that the media reports on plaintiffs' victories more often than defense verdicts, and it most readily reports the large, outlier plaintiffs' verdicts. In a content analysis of 249 articles in Time, Newsweek, Fortune, Forbes and Business Week over a 10-year period, evidence of distortion was apparent at every point. Bailis, Daniel et.al.: “Estimate Liability Risks with the Media As Your Guide: A Content Analysis of Media Coverage of Tort Litigation; Law and Human Behavior,” Vol. 20, No 4, 1996.

To begin with, the study found that the media amplifies the number of cases that even result in a trial. Only a small percentage of cases ever end up before a judge or jury ' 2.3% of state trials in one study ' yet the types of cases the media focuses on are disproportionately those that go to trial. In this look at magazine coverage over a 10-year period, nearly 64% of the cases that received coverage were cases that went to trial ' a hugely inflated number when compared with reality. Further, the verdicts that were reported were four and five times the size of the largest mean and median court estimates, and were 14 and 34 times the size of the smallest estimates.

Reality vs. Media Coverage

In a later study, the spread between reality and the media coverage was even greater. Between 1986 and1992, the average jury award reported in The New York Times was 16.5 times as large as the average reported by the Jury Verdict Reports for the entire state of New York, and 15.4 times the size of the awards in the New York City area. Chase, Oscar: “Helping Jurors Determine Pain and Suffering Awards,” 23 Hofstra L. Rev. 763 (1995). In another study of 351 product liability cases, of which 73.8% were defense verdicts and 26.2% were plaintiffs' verdicts, newspapers reported on 41.3% of the plaintiffs' verdicts, yet only on 3.5% of those for the defense. Garber, Stephen: “Product Liability, Punitive Damages, Business Decisions and Economic Outcomes,” 1998 Wis. L. Rev. 237. Simply put, plaintiffs' verdicts were reported nearly 12 times more than defense verdicts.

This same study also found that even though punitive damage awards were rare, their presence upped the likelihood of a case receiving newspaper coverage by 3.55 to 5.5 times. Galanter, Marc: “An Oil Strike in Hell: Contemporary Legends about the Civil Justice System,” 40 Ariz. L. Rev. 717, 746 citing Garber supra at fn 5, 71 Denv. U. L. Rev. 77, 80 (1993). And if the verdict was local, it was much more likely to be reported in the local newspaper, especially if there was a punitive component to it. A $45 million verdict had a 65% chance of local newspaper coverage, but if punitive damages were awarded, the chance of local coverage skyrockets to about 90%. Garber, Steven et. al.: “Newspaper Coverage of Automotive Product Liability Verdicts,” Law and Society Review, Vol., 33, No. 1 (1999) at 116.'

When the public believes that juries award outrageous amounts of money, it is the skewed media reporting that leads them there.

Next month, we will explore the ways that the media's slant influences perceptions of the litigeousness of the American public, and how those perceptions color what many think about the validity of personal injury claims.

Linda S. Crawford, a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and has consulted with defendants and witnesses on research-based effectiveness at deposition and trial since 1985.

How often do we hear that “everybody sues” in the United States, and that there are “jackpot juries” handing out huge sums of money to undeserving plaintiffs? Is the media to blame for these skewed beliefs or is the media accurate in its portrayal of the tort system, especially the medical malpractice system? The answer is “yes” to the former and “no” to the latter. The bottom line is this: While the media creates the impression of an out-of-control tort system, this is out of alignment with actual jury behavior. Jury members, in fact, are harder on their own friends and neighbors than are other decision-makers.

Motivations

The media is a business and, like any business, it survives only if people are interested in what it has to sell. So, how do you sell a news story?

Our ancestors stayed alive by knowing when to activate the fight or flight response. They needed to be alert to situations out of the ordinary so they could respond. Their lives depended on it. Like them, our brains don't activate unless there is something out of the ordinary. It is anthropological. We have been hard wired to pay attention to things that are unusual. And the media knows this. We may have become inured to typical things, but we wake up and pay attention when something extreme catches our attention.'

We continue to focus on the extremes in life for longer periods of time, and they take firmer hold in our brains long-term. MacCoun, Robert: “Symposium; Who Feels Their Pain?: The Challenge of Noneconomic Damages in Civil Litigation: Article: Media Reporting of Jury Verdicts:' Is the Tail Wagging the Dog?”; 55 DePaul L. Rev. 539, 554; Winter 2006. Citing Sokolov, Ye: Perception and the Conditioned Reflex (Stefan W. Wadenfield trans., 1963); Dijkersterhuis, Ap et al.: “Affective Habituation: Subliminal Exposure to Extreme Stimuli Decreases Their Extremity,” 2 Emotion 203 (202); Fazio Russell et. al.: “On the Automatic Activation of Attitudes,” 50 J. Personality and Soc., Psychol. 229 (1986).

Media in the Courthouse

When was the last time you read a headline saying, “Plane Lands Safely,” or “There Were No Motor Vehicle Fatalities Today”? No one would be interested. Robert MacCoun offers this chain of events to explain how and why the media shapes the public perception of the tort system: “1. Journalists sample cases for their interest value, not for their statistical representativeness; 2. Our brains have evolved to give disproportionate weight to extreme stimuli; 3. Jury awards are distributed asymmetrically, bounded at zero on the left but unbounded in the right tail; 4. As a result, very large awards will attract interest, but very small awards will not; 5. Because product liability, medical malpractice and class action cases produce more extremity, they will be overrepresented in the set of attention-grabbing cases; 6. And because only plaintiff victories produce extreme awards, plaintiff victories will be over represented in the set of attention-grabbing cases, relative to defense verdicts.” MacCoun, supra at 552.

Research shows that the media reports on plaintiffs' victories more often than defense verdicts, and it most readily reports the large, outlier plaintiffs' verdicts. In a content analysis of 249 articles in Time, Newsweek, Fortune, Forbes and Business Week over a 10-year period, evidence of distortion was apparent at every point. Bailis, Daniel et.al.: “Estimate Liability Risks with the Media As Your Guide: A Content Analysis of Media Coverage of Tort Litigation; Law and Human Behavior,” Vol. 20, No 4, 1996.

To begin with, the study found that the media amplifies the number of cases that even result in a trial. Only a small percentage of cases ever end up before a judge or jury ' 2.3% of state trials in one study ' yet the types of cases the media focuses on are disproportionately those that go to trial. In this look at magazine coverage over a 10-year period, nearly 64% of the cases that received coverage were cases that went to trial ' a hugely inflated number when compared with reality. Further, the verdicts that were reported were four and five times the size of the largest mean and median court estimates, and were 14 and 34 times the size of the smallest estimates.

Reality vs. Media Coverage

In a later study, the spread between reality and the media coverage was even greater. Between 1986 and1992, the average jury award reported in The New York Times was 16.5 times as large as the average reported by the Jury Verdict Reports for the entire state of New York, and 15.4 times the size of the awards in the New York City area. Chase, Oscar: “Helping Jurors Determine Pain and Suffering Awards,” 23 Hofstra L. Rev. 763 (1995). In another study of 351 product liability cases, of which 73.8% were defense verdicts and 26.2% were plaintiffs' verdicts, newspapers reported on 41.3% of the plaintiffs' verdicts, yet only on 3.5% of those for the defense. Garber, Stephen: “Product Liability, Punitive Damages, Business Decisions and Economic Outcomes,” 1998 Wis. L. Rev. 237. Simply put, plaintiffs' verdicts were reported nearly 12 times more than defense verdicts.

This same study also found that even though punitive damage awards were rare, their presence upped the likelihood of a case receiving newspaper coverage by 3.55 to 5.5 times. Galanter, Marc: “An Oil Strike in Hell: Contemporary Legends about the Civil Justice System,” 40 Ariz. L. Rev. 717, 746 citing Garber supra at fn 5, 71 Denv. U. L. Rev. 77, 80 (1993). And if the verdict was local, it was much more likely to be reported in the local newspaper, especially if there was a punitive component to it. A $45 million verdict had a 65% chance of local newspaper coverage, but if punitive damages were awarded, the chance of local coverage skyrockets to about 90%. Garber, Steven et. al.: “Newspaper Coverage of Automotive Product Liability Verdicts,” Law and Society Review, Vol., 33, No. 1 (1999) at 116.'

When the public believes that juries award outrageous amounts of money, it is the skewed media reporting that leads them there.

Next month, we will explore the ways that the media's slant influences perceptions of the litigeousness of the American public, and how those perceptions color what many think about the validity of personal injury claims.

Linda S. Crawford, a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and has consulted with defendants and witnesses on research-based effectiveness at deposition and trial since 1985.