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If you want to see how badly trial lawyers have lost the war for the hearts and minds of the American public, just watch the 2004 Disney-Pixar movie “The Incredibles.” Lawsuits force the movie’s cartoon superheroes to hang up their capes and leave the public vulnerable to criminal menace. Sure, it’s only a cartoon. But the plotline shows just how successfully Republicans and their business allies have spread the idea that out-of-control litigation is harming America. Stephanie Mencimer sets out to show how corporate America won — and the public lost — the tort-reform war in her new book, Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue. That subtitle pretty well sums up where Mencimer comes down on tort reform, not a surprise considering her previous reporting for Washington Monthly disputing the notion of a litigation crisis. Mencimer, a former Legal Times and Washington Post reporter, is not the first to show how media coverage focusing on big jury verdicts for plaintiffs distorts the public’s view of civil litigation. Nor is she the first to detail how the U.S. Chamber of Commerce’s Institute of Legal Reform has poured tens of millions of dollars into the effort to knock off state Supreme Court judges around the country deemed too trial-lawyer friendly. But Mencimer does a great job pulling all these strands together and tracing the tort-reform movement’s origins in a way that no one has before. She shows how corporate America, starting with the insurance industry and big tobacco, remade public opinion with the help of manufactured grass-roots outrage and studies with the sheen of academic respectability. She deconstructs their often self-serving and questionable sources of evidence, such as health care consultant Tillinghast Towers Perrin’s annual report on the tort system’s economic cost. The truth is murkier, due in part to a lack of good data about what goes on in state courts. The truth is that facts are really of secondary importance in this policy debate ruled by anecdote. Republican politicians talk about industries destroyed by lawsuits. Plaintiffs lawyers and their allies point to the innocent victims, such as a little girl who had her intestines sucked out by a pool filter. Mencimer includes at least one case of a plaintiff so grievously injured in every chapter so you are almost guaranteed to feel outraged — or at least queasy. But the book, which often reads like a Naderite screed or a brief on the trial lawyers’ behalf, suffers some for its unabashedly partisan tone. She portrays plaintiffs lawyers as Davids fighting on behalf of all that is right against corporate, evil-doing Goliaths. In fact, if this war is not a totally fair fight, it’s not a complete mismatch either. True, the trial bar is a diverse bunch of mostly bottom-feeding loners who aren’t by their nature apt to cooperate. But at the highest echelons, they are not exactly lacking for money, pouring tens of millions of dollars to friendly candidates — mostly Democrats — every election cycle. And they deserve more of the blame than Mencimer is willing to concede for some grievous political and public relations miscalculations. Trial lawyers thought they could win the war by quietly funneling money to politicians. They sat by as tort reformers’ savvy marketers and political strategists remolded public opinion and state and federal laws. Trial lawyers may win big in the courtroom, but they have proven far less successful in framing the resulting verdicts and the larger debate, thanks to a media and public that don’t care much for the subtleties of civil litigation. Take the case of Stella Liebeck, the old woman who sued McDonald’s after she dropped scalding coffee in her lap and became the butt of jokes on late night talk shows. After a while, it doesn’t much matter to anyone whether the details of this story or other tort-reform tall tales are true — they at least have the ring of “truthiness” to people increasingly convinced that litigation is out of control anyway. In just a generation, the bad guy in the public mind went from the corporate suits responsible for the exploding Ford Pinto to the trial lawyers seen as ruining the economy. The trial lawyers have realized just how much this is about marketing, as evidenced by the Association of Trial Lawyers of America’s hiring of Jon Haber, a former Fleishman-Hillard public relations executive, as its new chief, and by its recent decision to change its name to the American Association for Justice. A name change may be too little, too late. After all, trial lawyers, more than anyone, should know that you can’t start making your case after the jury has already returned with its verdict.
Seth Stern is a reporter for Congressional Quarterly .

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