I just finished George Lakoff’s book, Don’t Think of an Elephant! Know Your Values and Frame the Debate. Channeling my inner Joe Biden, I loved the book; I hated the book. (2019 Update: By golly, Joe Biden is still relevant today!)
I hated the book because as much as Lakoff tried to fight it, he does too much of the “no reasonable person could think this way unless they were being manipulated” spiel. It is just too condescending and partisan for my tastes, which I think takes away from some luster of the book for me.
A topic near and dear to my heart, tort reform, is the classic example. Lakoff writes (on page 30 for those of you following along at home) that conservatives are not focused on tort reform because of their disdain for the volume of lawsuits, but because they want to take money out the coffers of progressives by taking away the attorneys’ fees available to trial lawyers. Obviously, these attorneys are prone to contribute heavily to progressive candidates.
The thought had never occurred to me that tort reform is a back door to bleed progressive causes and I’m sure there is some truth to it. But the notion that this is the primary source of the motivation for tort reform among conservative thinkers ignores the magnitude of the animosity in many circles of our society – including people smarter than me – with frivolous lawsuits and, to a lesser extent, large jury verdicts.
This problem is compounded by the repeating of verdicts that are completely taken out of context (the McDonald’s verdict), fabricated (the Stella Awards), or simply rare. Compounding this problem further is the fact that celebrities tend to use lawsuits as the resolution mechanism of first choice, leading Americans to assume that these de facto aliens are a microcosm of our country.
How to Frame the Tort Reform Issue
Lakoff suggests that trial lawyers need to frame the issues differently. Consumer protection and personal injury trial lawyers should be framed as public protection lawyers. Under this frame, when tort law tries to put a cap on non-economic damages, they are taking away the constitutional right of juries to decide justice. Large settlements and verdicts result in greater public safety because the impact of accident, malpractice and, most importantly in this context, products liability cases go beyond the case at hand and are a form of public protection law.
The problem goes beyond framing, though, because the real issue in the tort reform battle is that there are not enough people to make the frames. Trial lawyers are the wrong messengers. Trial lawyer lobbyists? Worse. So who is left?
The fuel that fills the tort reform train is that everyone on the ride has never suffered a catastrophic injury as the result of the negligence or willful disregard for their safety (typically consumer or med mal context) of someone else. Those folks who have suffered a catastrophic injury often do come forward and make compelling witnesses for the unfairness of many tort reforms, most notably caps on noneconomic damages.
But most people who have suffered a grave injury have enough to deal with, without having to carry the anti-tort reform ball. So that leaves a few compelling proponents against many people who think their insurance costs and what they pay for drugs and medical devices are because of greedy personal injury lawyers and their clients. This is a hard obstacle to overcome.