[Mb-civic] The Myth of America's 'Lawsuit Crisis'

Thu Oct 7 17:31:43 PDT 2004

The Myth of America's 'Lawsuit Crisis'

By Stephanie Mencimer, Washington Monthly
 Posted on October 5, 2004, Printed on October 7, 2004
 http://www.alternet.org/story/20082/

Last December, Newsweek featured a cover package by Stuart Taylor and Evan
Thomas that blared: "Lawsuit Hell: Doctors. Teachers. Coaches. Ministers.
They all share a common fear: being sued on the job." Paired with a weeklong
tie-in on NBC News and online chats on MSNBC.com, the article claimed that
because "Americans will sue each other at the slightest provocation," the
country is suffering from an "onslaught of litigation" that costs Americans
$200 billion a year. The story was full of tales claiming to illustrate
Americans' overarching sense of legal entitlement and desire to "win a
jackpot from a system that allows sympathetic juries to award plaintiffs not
just real damagesŠbut millions more for the impossible-to-measure 'pain and
suffering' and highly arbitrary 'punitive damages.'"

 Among others, the story featured a softball tournament organizer, a
minister, and a doctor who all claimed to have modified their behavior
because they were terrified of lawsuits. Ryan Warner, an insurance salesman
in Page, Ariz., told Newsweek that he had recently cancelled an annual
charity softball tournament because an injured player had sued the city of
Page for $100,000. Warner said that he worried he might be added as a
defendant.

 The story as published, though, lacks a few critical details. Newsweek
didn't mention, for instance, that the 1997 federal Volunteer Protection Act
ensures that people like Warner are immunized from these types of lawsuits.
The article also excluded the injured man, Richard Sawyer, a locomotive
engineer who suffered a dislocated ankle and a spiral fracture to the fibula
 and missed months of work as a result  after he slid into a base that was
supposed to break away on impact but didn't because the city hadn't followed
the manufacturer's instructions for maintaining these fixtures properly,
according to Kevin Garrison, Sawyer's lawyer.

 The event organizers had insurance  required by the city  to protect
against exactly this kind of situation, but Warner cancelled the tournament
anyway because he says the lawsuit was "a hassle." Canceling the tournament
proved a smart PR move, as it brought out an immense amount of pressure on
Sawyer to drop his suit, says Garrison. The case was settled this January
for an undisclosed amount and Warner was never named. In fact, the
tournament has been revived and scheduled for early September.

 Not only were the particulars of the Newsweek story misleading. The essence
of the story was wrong, too. Newsweek's "onslaught" of lawsuits simply
hasn't happened. According to the National Center for State Courts, a
research group funded by state courts, personal injury and other tort
filings, when controlled for population growth, have declined nationally by
8 percent since the 1975, and have been falling steadily in real numbers
since 1996. The numbers are even more dramatic in places with rapid
population growth, like Texas, where the rate of tort filings fell 37
percent between 1990 and 2000. Even in liberal California, the rate of
filings has plummeted 45 percent over the past decade. And those overly
sympathetic juries Newsweek derides as so eager to dole out big bucks to
injured victims?

 In 2001, they voted against plaintiffs in 75 percent of all medical
malpractice trials, according to the federal government's Bureau of Justice
Statistics (BJS).

 In an interview, Taylor dismisses these numbers as insignificant compared
with the tort system's $200 billion drag on the economy. "The costs of the
tort system to society have gone up astronomically," he says. That figure,
though, comes from the insurance-industry consulting firm Tillinghast-Towers
Perrin (TTP), which includes in its definition of the "tort system"
insurance company administrative costs and overhead and the salaries of
highly paid insurance company CEOs (Maurice "Hank" Greenberg, chairman of
AIG, one of the world's largest insurance companies, makes $29 million a
year). One thing TTP doesn't include: court budgets, which makes its study
seem a lot more like an assessment of the insurance industry than of the
legal system.

 It's not as though Newsweek wasn't aware of these facts. On Friday, Dec. 5,
a day before the story went to press, Taylor contacted the Association of
Trial Lawyers of America (ATLA) for a quote. ATLA relayed the request to the
nonprofit Center for Justice and Democracy (CJD), whose director, Joanne
Doroshow, emailed Taylor information that contradicted some of the
assertions in the story, including the state court data and a critique of
the TTP study. (Doroshow provided the entire email exchange to The
Washington Monthly.) Taylor dismissed it all, telling Doroshow, "Based on
your many emails to me over the past 24 hours, you have very little
thoughtful analysis to contribute to that debate."

 Taylor did, however, take lots of his information from Philip K. Howard,
the founder of Common Good, a group funded by corporations and physicians
seeking to limit their legal liability for wrongdoing. Common Good's agenda
includes advocating for legislation that would end the civil jury's role in
many lawsuits. To advance the cause, Common Good helps reporters generate
anti-lawsuit articles by distributing colorful litigation horror stories
from around the country  the story from the Arizona Sun about Warner's
softball tournament, for instance, was linked on Common Good's Web site a
few months before the Newsweek story appeared.

 Incidentally, Howard also works for the law firm of Covington & Burling,
which represents Newsweek's parent company. Post-Newsweek Inc. has been sued
a number of times for employment discrimination and was hit with an $8.3
million verdict in 1999, a fact that Newsweek didn't mention in the story.

 Unfortunately, Newsweek's one-sided coverage of the civil justice system is
the rule, not the exception. Every few months, one or another newspaper,
magazine, or television show does a story just like it. They all hew to a
standard line, starting with a juicy but misleading  or even fictitious 
lawsuit horror story typically describing an irresponsible plaintiff,
followed by "studies" on the economic damage of the tort system published by
corporate front groups, finally ending with calls for "reforms" to rein in
mushy-headed juries and greedy trial lawyers. Such skewed coverage
represents a victory in a sustained, 50-year public relations assault on the
civil justice system by the insurance industry, tobacco companies, and other
corporate giants. It's helped fuel political support for curtailing
Americans' right to hold corporations and individuals accountable for
negligence, fraud, and other malfeasance in court. Perhaps more serious,
journalists' willingness to perpetuate anti-lawsuit propaganda has gravely
jeopardized Americans' unique democratic right to participate on civil
juries.

 Runaway Hedge-clippers

The current PR campaign by the insurance industry and other big corporations
is just the latest iteration of a long fight tracing back to the 1950s. That
was when plaintiffs' lawyers started breaking down some of the legal
barriers that had long protected industry from responsibility for injuries
to workers and consumers and opened up jury pools to make them more
representative of the general public. The blood bath on the nation's
highways during the post-war auto boom also created a whole new arena of
litigation over who should pay for the injuries and deaths caused in car
accidents. Auto insurance companies were frequently in the middle of these
disputes (as they are today; insurance companies are the defendants in 90
percent of all auto-accident lawsuits).

 With their profits threatened by unfavorable jury verdicts, the insurance
industry started running anti-lawsuit ads targeted at jurors. For instance,
in 1953, the industry ran ads in Life magazine and The Saturday Evening Post
that declared, "ruled by emotion rather than facts, [jurors] arrive at
unfounded or excessive awards  verdicts occasionally even higher than
requested!" The ads implored potential jurors to remember that "you pay for
liability and damage suit verdicts whether you are insured or not."

 The industry also successfully planted articles in national magazines and
TV shows that were designed to look like investigative reporting. In 1962,
CBS broadcast "Smash-Up," a fictionalized docudrama that portrayed sleazy
lawyers faking auto accident cases. The Insurance Information Institute, the
industry's public relations arm, helped write the script. In 1977, the
venerable insurance company Crum & Forester sponsored one of the first print
ads that included what would become a staple of anti-lawsuit rhetoric: the
fictional lawsuit horror story. The ad told the story of a guy who collected
a $500,000 jury verdict after he was injured using a lawnmower as a hedge
clipper. The agency later conceded that it had no factual basis for the
story, but that didn't keep it from circulating widely in the media and in
conservative political speeches.

 The industry knew what it was doing. In 1979, Elizabeth Loftus, the famous
memory researcher and University of California psychologist, tested the
effects of this kind of advertising on potential jurors and their decision
making in the jury box. At the time, the industry was spending $10 million
on a series of ads in a host of national magazines. In an article in The
American Bar Association Journal, Loftus reported that potential jurors who
were exposed to even one insurance ad awarded much less for pain and
suffering than those who weren't.

 In the mid-1980s, with insurance companies hitting a slump, the insurance
industry's "tort reform" movement, as it became known, broadened its
emphasis. Instead of limiting itself to targeting individual jurors through
mass media advertising, the industry began to heavily lobby legislators to
restrict citizens' ability to sue. The movement pursued strict caps on
damage awards, tougher standards for proving liability, and caps on
plaintiffs' attorney fees. The industry's crusade was taken up by small
government conservatives, who believed that tort reform paralleled their own
efforts to fill the federal bench with pro-business jurists and roll back
government regulations. They were also upset by changes in the 1960s and
1970s that broadened legal protections for women and minorities, such as the
1964 Civil Rights Act, and the expansion of product liability doctrines that
made it easier for injured consumers to force companies to compensate them
for faulty products. Politically, it was a lot easier to attack juries and
trial lawyers than the popular consumer, civil rights, and environmental
protection laws they enforced  or the injured victims they represented.

 Advertising was a key component of those efforts. In 1986, Newsweek ran a
series of ads sponsored by the insurance industry under the heading, "We all
pay the price." The ads warned that lawsuits were driving ob/gyns out of
business, shuttering local school sports programs, and scaring the clergy
out of counseling their flocks  though few of these assertions turned out
to be true. That same year, 1,600 tort reform measures were introduced in 44
state legislatures, 21 of which passed significant restrictions on lawsuits
and jury awards before adjourning.

 Tort reformers still weren't satisfied but were hamstrung by the fact that
most Americans didn't see lawsuits as a huge problem. After all, most people
never have any contact with the legal system unless they're getting
divorced. So, a group of corporate leaders, including AIG's Greenberg, set
about to change that by pumping money into right-wing think tanks to prepare
a body of "evidence" proving that not only was there a crisis in the
courthouse but also that "we all pay the price" as a result.

 One of the most influential of those groups is the Manhattan Institute,
founded by the late CIA director William Casey. In 1986, the institute
created its Project on Civil Justice Reform with funding from all the same
insurance companies who'd been responsible for circulating bogus lawsuit
horror stories. The project was targeted specifically at journalists. In a
1992 memo, institute president William Hammett explained the strategy for
molding reporters into a "pro-tort reform" position: "Journalists need copy,
and it's an established fact that over time they'll 'bend' in the direction
in which it flows. For that reason, it is imperative that a steady stream of
understandable research, analysis, and commentary supporting the need for
liability reform be produced. If sometime during the present decade, a
consensus emerges in favor of serious judicial reform, it will be because
millions of minds have been changed, and only one institution is powerful
enough to bring that about: the combined force of the nation's print and
broadcast media, the most potent instrument for public education  or
miseducation  in existence."

 Over the next decade, the institute produced a blizzard of reports,
conferences, op-eds, books, and mailings all decrying the "litigation
explosion" and greedy trial lawyers. They cultivated sympathetic and
influential journalists such as "20/20"'s John Stossel, then-New Republic
editor Michael Kinsley, and TNR columnist Fred Barnes, and more recently,
Stuart Taylor, who frequently cites their work in his columns for Newsweek,
The National Journal, and The Atlantic Monthly. The "research" conducted by
the institute usually purported to show how lawsuits impact the average
consumer's daily life by raising the cost of groceries or auto insurance or
driving their favorite physicians out of business. But some of the
institute's "scholars" played a little fast and loose with the facts.

 Take the idea of a "tort tax," the financial hit allegedly taken by every
citizen because of the legal system, which Taylor raised in his December
Newsweek article. It dates back to 1988, when Manhattan Institute fellow
Peter Huber coined the term in his book, Liability, and claimed that the
tort system cost Americans $300 billion a year. Three years later, the
figure made its way into a speech given by Vice President Dan Quayle, who
blamed lawyers for wrecking the economy. After the speech, several
researchers examined the methods Huber had used to arrive at that figure.
Huber, they found, had simply made it up. As The Economist observed in 1992,
"the $300 billion figure has no discernible connection to reality."

 While the Manhattan Institute targeted the media elite, large corporations
also set about creating the appearance of a "grassroots" movement to
persuade lawmakers that tort reform had broad populist appeal. As Neal
Cohen, one of the PR geniuses behind this project explained to a meeting of
the Public Affairs Council in 1994, "In a tort reform battle, if State
Farm...is the leader of the coalition, you're not going to pass the bill. It
is not credible. OK? Because it's so self-serving." Cohen was speaking from
experience. Since 1988, he had been running Philip Morris's "family tort
project" through the D.C. consulting firm APCO, where he helped the tobacco
industry wage a multi-million stealth campaign to insulate itself from
smokers' lawsuits. By 1995, the tobacco industry was providing almost half
the budget  $5.5 million in a single year  for the American Tort Reform
Association (ATRA).

 ATRA, in turn, helped funnel money to state level organizations called
Citizens Against Lawsuit Abuse (CALA). These chapters were responsible for
holding "lawsuit abuse awareness week," buying ads on buses and billboards,
providing experts for reporters, generating "polls" that claimed 99 percent
of Americans believe there are too many frivolous lawsuits. The groups were
hardly grass-roots organizations of inflamed citizens; the original chapter,
in Weslaco, Texas, is just a shell corporation housed in the local chamber
of commerce.

 Even after the corporate backing of these groups came to light (thanks in
part to Cohen's speech, a tape of which was obtained by some muckraking
reporters), tort reformers have continuted to use variations of the
technique. Most recently, doctors seeking to restrict medical malpractice
lawsuits have worked with corporate front groups like Texans for Patient
Access and Californians Allied for Patient Protection.

 After 50 years and hundreds of millions of dollars spent convincing the
public of a litigation crisis, the tort reformers have largely succeeded.
There's very little that journalists won't repeat and readers won't swallow
about the evils of the civil liability system.

 The Lying Florists

In November 2002, viewers of "60 Minutes" learned that Fayette, Miss., was
the nation's capital of "jackpot justice," a place where "plaintiffs'
lawyers have found that juries in rural, impoverished places can be mighty
sympathetic when one of their own goes up against a big, rich, multinational
corporation." In the story, Morley Safer interviewed a local florist who had
received a multi-million dollar settlement in a diet-drug lawsuit. The
unnamed florist alleged that trial lawyers were bribing jurors to give big
awards. "The jury awarded these people this money because they felt as if
they were going to get a cut off of it," he told Safer.

 During the broadcast, Safer interviewed Wyatt Emmerich, the publisher of a
newspaper in Jackson, who explained a few big verdicts there by saying,
"Look at the jurors. These are disenfranchised people. These are people
who've been left out of the system, who feel like, 'Hey, stick it to the
Yankee companies. Stick it to the insurance companies. Stick it to the
pharmaceutical companies.' The African Americans feel like it's payback for
disenfranchisement. And the rednecks, shall we say, it's like, 'Hey, you
know, get back at' revenge for the Civil War. So there's a lot of
resentment, a lot of class anger, a lot of racial anger. And it's very easy
to weave this racial conflict and this class conflict into a big pot of
money for the attorneys." The day after the program aired, the legislature
passed new restrictions on lawsuits.

 Tiny Jefferson County's national reputation as a "judicial hellhole" came
in part from intense publicity from the American Tort Reform Association,
which every year publishes a "study" purporting to identify various
jurisdictions around the country it deems too plaintiff-friendly and in need
of reform. At the time of the "60 Minutes" episode, the U.S. Chamber of
Commerce's Institute for Legal Reform was spending millions nationally on
advertising and lobbying for restrictions on citizens' rights to sue. At
least $100,000 of that had recently gone into an advertising campaign in
Mississippi to push for a cap on damages in lawsuits against corporations.
Those facts weren't included in the story. Meanwhile, the florist, Beau
Strittman, retracted his comments about the payoffs, telling the AP, "I just
said it as a joking statement." CBS spokesman Kevin Tedesco said the network
could not comment on the segment because several jurors have sued CBS for
libel over the broadcast.

 It wasn't the first time "60 Minutes" got duped in an anti-lawsuit segment.
Back in 1986, the show profiled the owner of a ladder manufacturing company
who claimed his company had been hit with a $300,000 jury verdict in a suit
by a man who fell off a ladder because he set it in a pile of manure. The
business owner claimed the lawsuit alleged the company should have warned
buyers of the dangers of setting ladders in dung. The real lawsuit had
nothing to do with manure; the ladder had broken with less than 450 pounds
on it, even though it had a safety rating that said it could support up to
1,000. Tedesco says the show never ran a correction.

 The print media, mostly opinion columnists, have proven even more gullible
in publishing stories about lawsuits that are simply fictional. For
instance, in June 2003, in a column entitled, "Welcome to Sue City, U.S.A.,"
U.S. News & World Report owner Mort Zuckerman claimed that "litigation has
become our national pastime." As proof, he offered several examples of
lawsuits that illustrated the nation's "enormous inflation of rights over
responsibilities." Zuckerman wrote, "A woman throws a soft drink at her
boyfriend at a restaurant, then slips on the floor she wet and breaks her
tailbone. She sues. Bingo  a jury says the restaurant owes her $100,000! A
woman tries to sneak through a restroom window at a nightclub to avoid
paying the $3.50 cover charge. She falls, knocks out two front teeth, and
sues. A jury awards her $12,000 for dental expenses."

 The anecdotes were catchy. Unfortunately, they weren't true. The stories
had been circulating in an email for two years and had made it into several
mainstream news outlets, including another Zuckerman property, The New York
Daily News, which had published an email containing one of the fake lawsuits
in the sports section a year earlier (with no correction). When The
Washington Post's Howard Kurtz called him on the U.S. News error, Zuckerman
was unapologetic. The magazine only published a brief clarification about
the fictional suits, which ended by saying, "Mr. Zuckerman continues to
believe, and most Americans agree, that we live in a country where far too
many frivolous lawsuits are filed each year." When contacted by The
Washington Monthly, a spokesperson for Zuckerman refused to disclose the
source of the lawsuit anecdotes or to offer an explanation as to why
Zuckerman would publish anything from a spam email without checking it out
first.

 Small-town papers seem even more vulnerable to such fabrications than the
national media, yet their impact is substantial, as battles over most tort
reform laws are fought in state legislatures, and juries are drawn from
local pools. For instance, in February last year, the Weirton Daily Times in
Weirton, W. Va., published an editorial supporting tort reform and blaming
juries for outrageous decisions in frivolous lawsuits. Among the examples
was the story of an Oklahoma man who put his Winnebago on cruise control at
70 mph and "calmly left the driver's seat to go into the back and make
himself a cup of coffee." Naturally, after the crash, the man sued Winnebago
for not advising him of the dangers of cruise control. A jury awarded the
man $1.75 million and a new motor home, the paper said. But it turned out
that every one of the lawsuits mentioned in the Daily Times editorial
stemmed from an anonymous email and was fiction. A local attorney, Michael
Nogay, called Daily Times managing editor Richard Crofton and alerted him to
the error. But rather than print a humble retraction, Crofton argued in
print that the essence of the editorial was true and published several
examples of "real" frivolous lawsuits. "What really killed me was that they
didn't even say 'we're sorry,'" says Nogay, who notes that the column came a
week or so after the state chamber of commerce had run a full-page ad in the
paper calling for tort reform while the legislature was in session. When I
asked what made him write about the suits without checking their veracity,
Crofton says, "We're a small paper, and I don't have the resources to track
down things all over the country."

 The media mogul Steve Brill first wrote about litigation myths back in
1986, when, as a journalist he traced several examples of the allegedly
"frivolous lawsuits" for The American Lawyer magazine and found that many of
them were simply urban legends. He says, "I had gone back through the
archives of Time magazine, and every ten years, Time declared a 'litigation
crisis.' But there was no crisis." Reporters' perpetuation of the litigation
myths has become one of Brill's pet peeves, even though, as a business owner
himself, he supports legal changes that would protect businesses. "Reporters
are basically lazy," says Brill. "You can always find a ridiculous lawsuit
to make the system look crazy."

 The $30,000 Jackpot

 The plain fact is, most lawsuits are neither ridiculous nor lucrative.
Despite the eye-popping headlines about billion-dollar fen-phen verdicts or
David v. Goliath movies about little guys taking on corporate wrongdoers in
court, the civil justice system looks a lot more like this: On Aug. 2, 1997,
Bonnie Daniels rear-ended Diane Pitnikoff in Cumberland County, Maine, and
was arrested for drunk driving. Pitnikoff suffered a number of lingering
injuries and ran up $42,000 in medical bills. Pitnikoff sued Daniels for
$100,000. On March 20, 2003, a jury voted in favor of Pitnikoff, awarding
her a grand total of $21,000.

 It's not a very sexy story  hardly the kind of thing that captures the
imagination and lands on the cover of Newsweek. Yet most tort lawsuits in
this country  nearly 60 percent  involve simple fender-benders, and the
awards are generally quite small and getting smaller. New data released in
April by the Justice Department's BJS show that in state courts, the median
"jackpot" jury verdict in all tort suits was a mere $37,000 in 2001  down
from $65,000 in 1992.

 And what of the undeserved billions in punitive damages that Newsweek says
Americans win from sympathetic juries? Punitive damage awards are intended
to punish wrongdoers for reprehensible conduct, and as a result, must be
high enough to get the defendant's attention. That's why an Alaska jury hit
Exxon with a $4.5 billion penalty in the wake of the Valdez spill. But such
awards are so rare that, according to BJS, the median punitive damage award
in 2001 was only $50,000. Only 7 percent of all plaintiffs were awarded $1
million or more.

 Because the Justice Department data conflict so sharply with conventional
wisdom, you'd think it would have been big news. The media coverage that
resulted from the new government study? Forty words in the USA Today. As of
mid-August, no major media outlet had covered the study, including Newsweek.
National editor Tom Watson says that his magazine has a strict policy of not
commenting on its own news coverage. "No one is willing to report that tort
awards are down, and that they're 30,000 bucks, not 5 million," says
Theodore Eisenberg, a Cornell University law school professor who does
empirical research on the legal system.

 Indeed, the tort reformers' message has proven remarkably resistant to
correction. Part of the reason is that those who have another side of the
story to present have vastly fewer resources with which to make their case.
BJS has a publicity budget of zero dollars, making it tough for the bureau
to publicize its remarkable findings. Trial lawyers, who do have some money,
have been reluctant to fight back in the media because they recognize that
they are universally mistrusted. They've picked their fight in the
courthouse, where they challenge tort reform proposals as unconstitutional.

 Tort reformers, too, have deftly manipulated reporters' weaknesses, like
the over-reliance on the anecdotal lead. Editors are always imploring
writers to find a perfect anecdote that can sum up a complicated problem in
40 words or less. This can be a useful tool for conveying information to a
reader, but when it comes to something as complex as civil justice system,
the technique often backfires because the juiciest anecdotes tend to be the
exception rather than the rule. And reporters simply don't expect to be lied
to when an advocacy group hands them tales of a crazy lawsuit or a study
about economic trends  a naiveté that the tort reform movement has
skillfully exploited. Gary Alan Fine, a sociology professor at Northwestern
University and an expert on contemporary legends, says most people,
including reporters, "rely on the trust we have of others."

 Lobbying groups and industry financed think tanks have also taken advantage
of an information vacuum. For years, most state courts never collected
information on case outcomes and jury awards, so real numbers were hard to
come by. Tort reformers have expertly filled this void with their own
figures. "When there's no data, you can just make stuff up," says Eisenberg.

 Even when there are relatively good data, they are easy to misread. The
RAND Corporation's Institute for Civil Justice has reliable jury verdict
data for two counties in Illinois and California going back 40 years. At one
point, California's average jury verdicts showed a big jump. A tort reform
lobbyist might point to the same data as proof that emotional jurors are
giving away a lot more money. In fact, what happened was that California
raised the dollar limits for cases that could be pressed in small claims
court, taking the small cases out of the main court, thus pushing up its
statistical average even when the actual awards stayed constant. "It's
really, really hard to make any inferences about what's going on out there
from jury verdicts," says RAND's Seth Seabury.

 Indeed, the "onslaught of litigation" over the past 30 years decried in
Newsweek is a relative term. In 1962, for instance, only about 300 civil
rights lawsuits were filed in federal courts. In 2000, there were more than
40,000  an onslaught, to be sure, but that's because prior to 1964, racial
discrimination was legal.

 Michael McCann, director of the Comparative Law and Society Studies Center
at the University of Washington, suspects that legal myths remain so
pervasive because Americans want to believe them. He says that tort
reformers have turned the frivolous lawsuit "into a morality tale about the
loss of personal responsibility." He also suspects that the flexible
American legal system lends itself to such caricatures because in America,
fat people really can sue McDonalds (whether they would win is an entirely
different matter), so many of the fake lawsuit stories don't seem like that
much of a stretch.

 The news coverage may be creating some unexpected consequences: Some
academic researchers suspect that all the hype about the litigation crisis
might actually be making Americans more litigious by giving them the
erroneous impression that compensation is available through the courts for
most injuries. As McCann says, "Tort reformers may have produced more
frivolous claims while making legitimate claims harder to bring."

 Indeed, if Americans really are overcome with fear of lawsuits, it might be
because they've been reading too many Newsweek articles. At least that's the
rationale cited by the organizers of annual Polar Bear Plunge back in Page,
Ariz. In January, organizer Paul Ostapuk told the local newspaper that he
was canceling the annual event at Lake Powell because "Given the rampant
rise in frivolous lawsuits across the nation and the recent Newsweek
articleŠI've had to play it safe and rethink the 2004 Polar Bear Plunge
event." Ostapuk said he was planning to reschedule for next year  after
buying some insurance.