Magazine article USA TODAY

The Case against Litigation Journalism

Magazine article USA TODAY

The Case against Litigation Journalism

Article excerpt

When A Florida widower claimed on CNN'S "Larry King Live" (Jan. 21, 1993) that his wife had died from a brain tumor caused by her cellular telephone, he was advancing a deliberate, wellplanned legal strategy called "litigation journalism." So were the lawyers and plaintiffs involved in "Waiting to Explode?," ethically embarrassing "expose" of General Motors' C/K pickup trucks aired on "Dateline NBC" (Nov. 17, 1992). The same applies to the two student plaintiffs appearing on "Good Morning America" (Feb. 26, 1993) to discuss why they were suing the Denny's restaurant chain for racial discrimination.

All these plaintiffs and their attorneys were given free air time to argue their cases, relatively unchallenged, in the court of public opinion. These are not isolated instances. In a frantic search for programming, such litigation entertainment is scheduled regularly on electronic news magazines and talk shows.

In the guise of news and public affairs interviewing, the moderator is elevated to the role of judge. The audience is invited to serve as jury, rendering instant "verdicts" that may have serious consequences. At stake are personal and corporate reputations, public fear, and lots of money. Even more critical is the threat that such exercises pose to the system of legal due process.

Litigation journalism is a trend which represents a symbiotic relationship that meets both the needs of the media and those of trial lawyers and their clients. As cable channels have proliferated - giving rise to independent news networks such as CNN and the seemingly endless stream of daily syndicated talk shows - competition for topics and guests has become fierce. Throw in competition from movies that stimulate an ever-growing public appetite for action and drama, and a breeding ground for litigation journalism has been created. It was spawned and is nurtured in a "sue-crazy" environment in which trial lawyers are seeking ways to generate public sympathy for their clients, create favorable environments of public opinion for class-action suits, apply pressure on defendants to settle of court, and influence juries when their clients' lawsuits make it to trial.

Because of the contingency fee system, plaintiffs have nothing to lose financially by filing lawsuits. They don't have to pay unless they win, and judges do not require them to pay the court costs and attorney's fees of the defendant if they lose. While the contingency system is an advantage to hardship cases with genuine claims, it also encourages frivolous suits and dubious claims motivated by greed. Examples include the Pepsi Cola tampering cases and the New Jersey bus accident where some of the "victims" jumped aboard after the crash so they subsequently could file pain-and-suffering claims.

Under the contingency fee system, trial lawyers'cut of financial settlements can go as high as one-third or more. They have a vested interest in trying to up the ante in lawsuits as high as public opinion will allow. The enhanced ability to manipulate the media and public opinion makes it more tempting for attorneys to accept even marginally valid cases in anticipation that suits will be settled out of court by defendants eager to stifle negative publicity.

In pursuit of their mutual needs, the media, trial lawyers, and plaintiffs are pre-empting the role of the courts and seriously undermining due process. Once a lawsuit is filed, the appropriate place to argue its merits is in a courtroom, where witnesses are sworn, cross-examination is possible, and rules of evidence prevail..

When civil lawsuits are tried in the public arena, arguments usually are one-sided, distorted, heavy on emotion, and light on evidence. In the cellular telephone case, the plaintiff presented no facts to substantiate his claim that his wife's brain tumor was caused by electromagnetic waves emitted from her portable telephone. His reasoning was that, because she used the phone frequently and the tumor developed directly next to where the antenna was located when the instrument was held up to her ear, it must have been caused by the phone. …

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