Dave Johnson
November 18, 2003

Lowering the Bar

The conservative movement's well-funded attacks on trial lawyers

We've all heard the story of the woman who spilled hot coffee from a fast food joint in her lap, then sued the restaurant, and was subsequently awarded a huge sum of money for a seemingly stupid act. This is only one of many supposed examples of "out-of-control" lawsuits and outrageous damage awards that are causing our legal system to collapse, our businesses to fold, and our insurance rates to skyrocket. Right?

Maybe not. It turns out that these popular stories about lawsuits and their effects are almost always misleading, distorted, or outright lies. Our legal system is not collapsing, lawsuits are not causing businesses to fold, and damage awards are not why insurance rates are rising.

Why then do so many people accept these untruths about our legal system? Because, for more than a decade, consumers and trial lawyers have been under attack from a well-funded effort advocating "tort reform." Many reputable reports have shown that this "tort reform" movement is nothing more than an industry-funded public relations effort, using phony "grassroots" organizations that purport to be groups of concerned citizens.

A Commonweal Institute report that I authored titled, The Attack on Trial Lawyers and Tort Law, shows that the "tort reform" attack is actually just one part of a broader, coordinated, ideological "movement," that consists of a network of more than 500 "conservative" organizations, all receiving funding from a core group of far-right foundations. They call themselves the "conservative movement," but can be more accurately described as the far right. Many of these organizations are disguised as pseudo-scholarly "think tanks," but are really communications and advocacy organizations, marketing ideas the same way detergent is sold to the public.

The primary method of these organizations is the coordinated repetition of phrases designed to influence public attitudes and opinions. By repeating messages through multiple channels over a sustained period of time, they manufacture "conventional wisdom." Examples of this "conventional wisdom" include falsehoods like "Social Security is going broke," and "public schools are failing." The use of many supposedly independent organizations, all communicating the same messages through various channels, gives the impression that many learned people and organizations have a consensus of opinion on important issues, bringing credibility to their perspective. But the voices all turn out to be components of what amounts to one overall organization, set up and funded by this core group.

These "movement" organizations share a common ideology that forms the underlying base for their various political campaigns. In the realm of "demand for tort reform," the goals include limiting the amounts that can be awarded to injured parties, limiting the ability to file class-action lawsuits, and limiting the amounts that attorneys can collect from damage awards.

Our report shows that along with the ideological effort to change the public's views about consumer litigation, the "conservatives" also employ a strong tactical component. We show how the conservative movement seeks to limit damage awards because doing so will "defund" one group of their assumed political opponents, trial lawyers, and thereby limit the litigators' ability to contribute money and clout to anyone who opposes the Right's agenda.

Trial lawyers and other advocates of strong protections for consumers are today on the defensive, and their responses to the "tort reform" movement's attacks have mostly been ineffective. Similarly, labor unions, environmentalists, teachers, women's rights advocates, advocates for the poor, and so many others unfortunately find themselves in a defensive situation. While some tactics and responses seem effective in the short term - legislation may be blocked, or a ballot initiative may be defeated - the "conservative" opponents seem to rise from every popular defeat like the mythical Phoenix, bringing renewed vigor to each fight. Take the issue of school vouchers, for example. Year after year public school privatization is handily voted down in state referenda, yet the issue never dies. Instead it returns the following year, with its advocates merely spouting different, usually illogical arguments for the same proposed policies.

Fighting back requires understanding what it is that you are fighting back against. Without understanding the involvement and nature of this underlying right wing movement, trial lawyers and consumer advocates will not be effective in their response to "tort reform" arguments. Fighting a larger, deeper, multi-issue-oriented opponent requires a broader, more nuanced response. Reactive, reason-oriented efforts - explaining the merits of the coffee-spill lawsuit, for example, or providing figures showing that damage awards are not increasing, have not been effective. Because the conservatives' perspectives on issues come from an underlying ideology, and they are marketed so heavily, it is difficult if not impossible, to refute them by addressing their arguments on specific issues. If progressives are to be successful in getting their message out to the public they must first expose and refute that underlying right-wing ideology.

The solution, it seems to me, is for progressives to employ the same tactics and methods that have worked so well for the organized Right. That is, they should fund multi-issue think tank/communication organizations designed to reach the broad public with repeated messaging that will change underlying public attitudes. The "conservative movement" has provided an excellent model. Of course progressives don't need to use deceit, lies and smears as the conservatives do (mainly because most people agree with Progressives on the issues), but clearly there is a need to build a comparable infrastructure of organizations and communication channels. Organizations like the Commonweal Institute, Cursor, Inc. (publisher of MediaTransparency.org and Cursor.org) and the Center for American Progress are examples of these types of organizations.

While that may seem to be a monumental task, it is also undeniably necessary. And as it turns out, building a comparable network of advocacy and communication organizations might not be as daunting as first appears. There is actually quite a bit of money available from moderate and progressive funders, but it has not been applied as effectively as the conservatives' resources. The fundamental difference between progressive and conservative philanthropic funding, described by various authors, is that the conservative movement provides general operating support to ideological advocacy organizations, while moderate and progressive funders do not. Moderate and progressive funders tend to provide support for programs, and avoid funding advocacy, or funding organizations that might upset the established political order. This must change.

Meanwhile, the programs moderate and progressive funders support are becoming less effective because of the results of the conservatives' ideological campaign to the public. For example, environmental programs are less effective and their program funding is wasted when their underlying public and political support is undermined by the conservatives' successes. A program protecting a redwood grove is a waste of money, for example, if the "conservatives" are able to convince the public to elect politicians who enact legislation allowing logging companies to cut down the trees, ostensibly to protect against forest fires. Building organizations that affect underlying public attitudes will back up and reinforce specific program work.

Trial lawyers and other advocates of consumer protection need not take on this fight alone. Joining forces with other powerful groups such as organized labor, teachers' associations, environmentalist organizations, all of which are under attack and targeted for "defunding" by the "conservative movement," will leverage the resources of each of these groups. And, of course, each of these groups will in turn benefit as the assault from the conservatives is turned back. If progressives and moderates will build a movement of multi-issue think tank/communication/advocacy organizations comparable to, yet more ethical than, the one created by the conservatives over the past three decades, we may yet look forward to improved public attitudes toward the common good, and public officials supportive of moderate and progressive goals will take office. The alternative is more of the same.