Lawyers are going beyond their brief. Too often, lawyers in courtrooms are determined to win at all costs – and that is dangerous for the rest of us.
The American economy is built on the free market and the value created by private enterprise. Companies and entrepreneurs alike must be free to trade and do business without falling victim to overzealous attacks from lawyers who are happy to bring worryingly large sections of the economy tumbling down, just so long as it leaves their client smelling of roses. The companies on the receiving end of attorney attacks are often innovative, productive and value-creating, providing vital products and services to millions of consumers. It is not the place of lawyers to bring that to a grinding halt without good reason.
The way lawyers are behaving in American courts poses a direct threat to the free market economy. When it comes to professional negligence or issues with product safety, it is important that businesses are held to account according to the law – but in a growing number of cases, trial lawyers are abusing the concept of consumer protection to hurriedly discredit whole swathes of the American economy, with little thought for the far-reaching consequences of that.
Attorneys are collecting millions of dollars every year by villainizing entire industries by following a carefully honed set of steps involving outside experts and marketing organizations. Media reporting on high-profile trials of interest to consumers can be manipulated. Convenient media narratives often paint the plaintiffs as ‘good’ and the accused as ‘bad’, resulting in a misleading perception of what went on.
As is so often the case, these problems stem from the system, not the individual actors. The way the American tort system works allows deceptive lawyers to exploit the law and spread misinformation. To prevent legal counsel from acting in bad faith, sensible tort reform is urgently needed. As well as better protecting American consumers, tort reform would prevent millions of dollars from going down the drain because of these harmful, time-wasting maneuvers.
It's not just lawyers – marketing agencies have a role to play in this, too. Attorneys know that public opinion is all-important, and they have no qualms about openly manipulating it to suit their own ends. Plaintiffs’ lawyers do extremely well out of cherry-picking information, taking it out of context and exaggerating its important to the media, often forcing companies to fork out enormous settlements just to ease the media pressure.
The Wall Street Journal reports that “the system makes it easy for lawyers to file nearly identical complaints in rapid succession, with just a few paragraphs changed about each plaintiff, giving defendants little to go on to gauge the legitimacy of any given case.” In other words, the bar for plaintiff’s lawyers to meet in order to file a case is far too low, and they are able to weaponize the system to put undue pressure on the company they are suing, far beyond what the law intends.
Then, to hide how weak their case is and keep up the relentless attacks on industry in the public square, attorneys often hire marketing agencies to do their dirty work for them. According to X-Ante, a tort litigation tracker, TV commercials asking people to report alleged injury by Zantac, a heartburn medication, aired more than 45,000 times in the first quarter of 2021. That’s the same as airing every four minutes. The plaintiffs’ bar spent $7 million on that alone. That weights the scales of justice in a wildly unfair way by placing enormous undue pressure on the company to pay out.
The problem has become so serious that some companies are having to resort to creative new methods such as the so-called ‘Texas Two-Step’. When Johnson & Johnson suddenly found itself stuck with a whopping 38,000 pending lawsuits alleging the talc in its famous baby powder product had carcinogenic effects, the company had no choice but to take drastic measures.
J&J divided itself in half by slicing its consumer health business off into a separate company, moving all its legal liabilities along with it. That brought all tort cases relating to baby powder across the US to a halt, because they suddenly fell under the jurisdiction of bankruptcy courts, rather than civil courts. That gave the company a fighting chance – plus the opportunity to keep trading, rather than supermarket shelves abruptly containing a much smaller range of baby power products – which it may not otherwise have had.
Companies should not have to resort to such dramatic, costly measures to escape the harms of reckless lawyer behavior. It is high time we recognize the ways trial lawyers are abusing the tort system to make it more difficult for wrongly accused companies to defend themselves, at the expense of their customers and the free market. We urgently need sensible tort reform to continue protecting consumer rights while also putting an end to this systematic manipulation of the legal process.
Jason Reed is the spokesperson for Young Voices and a writer and broadcaster on politics and policy for a wide range of outlets. Follow him on Twitter @JasonReed624.