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In 2004, Illinois voters witnessed one of the most expensive and, perhaps, nastiest judicial races in the state’s history. Tort reform took center stage in the face-off between Republican Lloyd Karmeier and Democrat Gordon Maag for the south Illinois seat on the state Supreme Court. Here was a race about a fiercely contentious issue in American politics, and one that is seldom honestly confronted. And this time, the battle was playing out in the heart of the American midwest. It’s easy to see why this race, emblematic of a national struggle among special interest groups from across the political spectrum to shape the judiciary, appealed to documentary filmmaker Wayne Ewing. But it’s also all too easy to evoke villains and victims in the fight over tort reform. Ewing passes up an uncommonly timely opportunity to deflate or at least thoroughly probe the formulaic arguments over tort reform. He could have taken a pin to the hot air balloon, but instead injects it with another blast of sniping rhetoric. The stereotypes are threadbare: Predatory plaintiffs’ attorneys putting earnest doctors out of business by pushing for gargantuan medical malpractice awards. Or, alternatively, big business milking the working man out of compensation for life-altering injury or death suffered on the job. The premise of “Benched: The Corporate Takeover of the Judiciary,” which premieres Tuesday, Feb. 8, at the Landmark Theater on E Street, N.W., is that corporate America spends lots of money on tort reform, whether funding judicial campaigns or trying to buy influence on Capitol Hill. For most viewers, this won’t be a revelation. But Ewing does pull the curtains back on the roots of tort reform funding. He points out that at a state level, many tort reform organizations try to appear grass roots, when in fact they are funded by money channeled from corporate lobbying groups. This is a potentially important point for voters hammered by tort reform messages that they might presume have local interests in mind, but that are often a part of national lobbying efforts by big business. Ewing interviews Terry Lavin, a former president of the Illinois Bar Association (and what the movie doesn’t say, a trial lawyer himself). Lavin makes a poignant, if obvious, argument � one the movie succeeds in getting across � that caps on damages for pain and suffering, the kind President George W. Bush champions, could hurt people who desperately need the large personal injury awards or settlements they receive. “Tort reform is not about frivolous lawsuits, it’s about big lawsuits,” Lavin says. “It’s about people who are mangled, brain-damaged, or dead.” In Bob Vogt, Ewing finds a tort reform opponent and beneficiary of a personal injury settlement who is sure to arouse sympathy in most viewers. A full-time caretaker for his wife, who 15 years ago was the victim of a medical mistake that left her severely brain-damaged, Vogt and his wife need the money she received as a medical malpractice settlement to survive. The film centers on a few counties in southern Illinois, home to an annual Watermelon Festival, fading Main Streets, and designated by business groups as the nation’s primary “judicial hellhole” where plaintiffs reap unreasonable awards and businesses and doctors are stripped of equal justice. Ewing, who has produced news segments for NBC, PBS, CBS, and ABC, briefly flirts with deeper questions that, had he pushed them, might have prompted his audience to begin to demand more sophisticated reasoning from tort reform’s opponents and advocates alike. But, for example, when Lavin addresses the lack of transparency required of insurance companies, which tort reformers say are forced to increase rates because of the costs of enormous jury awards in personal injury lawsuits, Ewing gives the comment a swift gloss. It’s a tease of an issue begging for more vigorous examination. Stephen Daniels, a senior fellow at the American Bar Foundation in Chicago and a tort reform movement expert, says that plaintiffs don’t win medical malpractice cases very often. A good point, but where are the numbers to back that up? In a film that isn’t very interesting visually, some hard-hitting data instead of an almost exclusive reliance on interviews would add value. The dollar amounts of recent jury awards in personal injury suits in Madison County or the number of doctors who have actually left Illinois in recent years might give viewers the solid data they need to make up their own minds about the tort reform debate. Yet Ewing does give ample screen time to a cast of familiar players, many being older white men. Among them is Clyde Wiseman Jr., the former mayor of Alton, Ill., who says his community is losing jobs because businesses fear the state’s high jury verdicts and insurance costs. Regrettably, most tort reform activists refused Ewing’s requests for interviews. In their place then is footage of sensationalized TV commercials created by tort reformers and the opinions of people like Wiseman, who talk a lot without saying very much. The film also touches on why a major corporation might have an interest in the Illinois judicial race. But, in the case of Philip Morris USA, it isn’t spelled out clearly for viewers that the tobacco company is appealing to the state Supreme Court an Illinois judge’s order to pay $10.1 billion in damages for misleading smokers. And we hear surprisingly little about the judicial race itself. That is in part because the judges can’t talk about issues during the campaign, making for an odd, candidate-by-proxy situation. Karmeier didn’t agree to an interview with Ewing, saying in local press reports that he feared another “Michael Moore-type” documentary. Maag was interviewed, although briefly. But ultimately, Ewing presents a skewed argument, and viewers deserve better. After all, Ewing is an experienced documentarian and the tort reform movement is household fodder for many middle-class Americans. What they need is a balanced consideration of the dynamics of the debate. Lavin, the former president of the Illinois Bar Association, tells viewers, “Nothing sells like fear in America, nothing.” But Ewing neglects to acknowledge that, in the tort reform debate, this cuts both ways. Lily Henning, a reporter atLegal Times , can be reached at [email protected].

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