Fighting the trial lawyer ‘elite’: How Right

spreads its message against civil justice

 

by Roger Bybee

Thomas Jefferson declared in 1788: “I consider the trial by jury as the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.”

Two centuries later, Jefferson the democrat remains revered. Yet Jefferson’s valued  “anchor” of democracy is being repudiated widely in the present public discourse.

The civil justice system is incessantly disparaged—from the “Lawsuit Hell” Newsweek cover story[1] to right-wing talk shows and websites proliferating stories of mythical “jackpot” settlements—as a millstone weighing down society. In the current era, the Jeffersonian principle of democratic accountability for all members through the civil justice system has become an intolerable burden in the eyes of significant and influential sectors of corporate America.

Applying meaningful standards of accountability to corporate conduct is viewed not as a  anchor of democracy, but an insufferable weight dragging down the creation of wealth. Much of Corporate America wants to decisively snap the chain binding America to the civil justice system, letting the anchor of democratic accountability drop to a watery grave, and allowing the ship of enterprise to sail forth unimpeded.

Moreover, these corporate leaders have developed a systematic, long-term communications  effort aimed at sowing contempt for civil justice across America’s class divide, so that the very people most dependent on the tort system become convinced that it is “out of control” and harming citizens like themselves.  Along with propagating the notion that “frivolous lawsuits” are a significant problem, tort “reformers” have even vilified “activist groups and plaintiffs attorneys” as de facto allies of “suspected terrorists and foreign enemies.” [2]

The pervasiveness and unceasing drumbeat of the anti-civil justice perspective is no accident. The civil justice system has come under a systematic, multi-dimensional assault spearheaded by right-wing foundations such as the Wisconsin-based Lynde and Harry Bradley Foundation. The scope of this attack is truly breathtaking, aimed at fundamental elements of democratic rule: re-shaping public opinion on legislation and regulation of big business;  predisposing jurors to view plaintiffs as pursuing meritless, “frivolous” lawsuits; radically shifting  the composition of the courts, and ultimately weakening if not eliminating long-standing protections for the basic rights of consumers and workers.  Author Michael Scherer has estimated that the staggering sum of roughly $100 million is spent annually to promote this campaign.[3] 

Propaganda lays foundation

The heart of the campaign against civil justice is an expansive communications effort that can be accurately labeled a classic “propaganda” campaign. Propaganda was concisely defined by Australian scholar Alex Carey as

“communications where the form and content is selected with the single-minded purpose of bringing some target audience to adopt attitudes and beliefs chosen in advance by the sponsors of the communication”[4]

The anti=civil justice communications campaign measures up to this definition quite precisely. The attempt to induce adoption of pre-selected attitudes and beliefs is exactly the method of the tort “reformers.” If the anti-civil justice movement openly presented their cause as seeking immunity for corporations like Philip Morris and Enron that callously wrought suffering on ordinary citizens, little sympathy would be elicited outside corporate suites. Recognizing this, the anti-civil justice movement has carefully  re-packaged itself as standing up against an “elite” of trial lawyers profiting from “frivolous” lawsuits at society’s expense.

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