Under-Estimating and Over-Estimating Litigation: How Activist Plaintiffs may Advance their Causes Even as they Lose their Cases

Under-Estimating and Over-Estimating Litigation

How Activist Plaintiffs may Advance their Causes Even as they Lose their Cases

William Haltom and Michael McCann

For more than three decades scholars and other analysts have debated whether the benefits of resorting to courts to pursue social change outweighed the costs of litigation to litigants, litigators, the economy, and society. Critics have questioned the net benefits of litigating as opposed to changing policies or practices through markets or in legislative, bureaucratic, electoral, or other non-judicial arenas (Horowitz 1977; Melnick 1983; Rosenberg 1991; Sandler and Schoenbrod 2003). Some of these criticisms have been general, system-wide if not always systematic, and even cultural (Glendon 1993; Kagan 2001). Other critiques have focused on specific cases or issues and have assessed concrete benefits and, especially, demonstrable costs (Derthick 2010a; Schuck 1986). Of course, legal scholars and practitioners have answered such questions and such questioning vigorously, especially by emphasizing advances and setbacks beyond winning or losing trials and other calculable, concrete outcomes (Bogus 2001; Feeley and Rubin 1998; Koenig and Rustad 2001; McCann 1994; Mather 1998; Rubin and Feeley 2003; Scheingold 1974; Wagner 2007).

Points and counterpoints regarding appropriate uses and inappropriate abuses of courts, lawsuits, or threats of courtrooms and lawsuits have each and all enhanced our understanding of adjudication as a strategy and tactic for reform, regulation, and change as well as arenas and venues within which changes and continuities in policies and practices might be contested. These dialogues and debates, however, promote at least two temptations. The first temptation is “Scorekeeping”—a tendency to tote proximate, direct costs and benefits of verdicts, judgments, and settlements but to overlook both longer-term, more indirect ramifications of litigation and the cultural consequences of alternatives to ordinary politicking. A second temptation is “Overgeneralization”—a tendency to exaggerate the facility or capacity of litigation to re-frame issues and contests and to overlook obstacles to successful re-framing.

In this chapter we review news coverage of litigation over tobacco, firearms, implants, and food to show that diminishing the responsibility of consumers by attacking the alleged irresponsibility or duplicity1 of companies is a strategy or tactic the utility of which varies with cultural, legal, ideological, and political contexts. Our narrower objective is to urge analysts and activists alike to attend to costs and benefits both immediate and eventual, both straightforward and roundabout, and, maybe most important, both monetary and symbolic when striving to understand the culture and practice of litigation for social change. Our broader objective in this chapter is to deepen and complexify appreciation of the impacts and ramifications of litigation as tool, tactic, and strategy so that scholarly dialogue might be more complete and productive.

Broadening and Diversifying Scorekeeping

Some recent contributions to the many-sided discussions of adjudication and litigation have directed attention to case studies or specific sorts of litigation and to demonstrable, calculable outcomes. Gordon Silverstein (2009) has advanced interesting explanations of victories and defeats premised on narrow presumptions about what counts as winning and what as losing in litigating the regulation of abortions, environmental issues, campaign finance, presidential powers in wartime, and tobacco (Silverstein 2009). Likewise, in their recent, rigorous assessment of the strategic contexts of regulation by means of litigation, Wayne V. McIntosh and Cynthia L. Cates (2010) ended their chapters on tobacco, firearms, and foods with sections entitled “Winners and Losers” and defined winning and losing largely, albeit not entirely, by proximate, direct, calculable outcomes. In his even more recent study of attempts to regulate or reform tobacco and lead-pigment industries by means of lawsuits, Donald Gifford ranged beyond outcomes of trials and settlements on his scorecard but not far enough to include some political and cultural gains that tobacco and lead-pigment litigation may have yielded in the broader culture and polity (Gifford 2010, 215–229).

These assessments of litigative attempts to remedy or to regulate powerful concerns achieve considerable clarity at some costs to breadth of understanding of victories and defeats beyond verdicts, judgments, and money. In addition to particular, tangible results, lawsuits may result in symbolic and cultural consequences that, while less immediate, less direct, and less quantifiable, may matter greatly for politics and policies and for those who would alter some status quo (Haltom and McCann 2004). While lawsuits anticipated, threatened, or filed may focus issues, test arguments, and alter the short-run calculations of reformers and defenders alike, over longer runs and across political and cultural contexts such suits may also acquaint attentive publics with reformers’ and defenders’ alarums and calumnies, with claims and contentions, and muckraking narratives in settings in which powerful entities and their spokespeople may be more forthcoming than in legislative or electoral politicking. Changes in public awareness, in mass media’s attention to and coverage of social causes as well as legal cases, and in attitudes toward novel claims and innovative issues are important examples of the consequences of lawsuits that develop and ramify long after verdicts, judgments, and awards have faded from political consciousness. Indeed, activists and advocates often aim to advance indirectly through such “radiating effects” of litigation or the threat of litigation what they have less expectation of achieving directly in courtrooms or in settlement offers.2 Whatever their direct, case-specific aims, reformers may settle for or count on informing the public, challenging prevalent presumptions, and redefining responsibility on issues of great moment to consumers and citizens. Litigation is a venue replete with rhetorical flourishes, image-politicking, and contests to frame issues, problems, and policies, all of which may evolve gradually but persist long after piecemeal results have faded.

If reformers’ litigative tactics and strategies are to yield consequences that radiate outward from resolutions of lawsuits, cases must publicize causes. Here, the tendencies of mass media coverage and commonplaces of reporters’ and editors’ understandings shape what would-be reformers might amplify and disseminate to wide audiences. Class-action and public-interest litigation that is deemed newsworthy may be reduced by the routine over-reporting of plaintiffs’ payouts and win-rates and under-reporting of factual and legal predicates that studies of civil-justice disputes have uncovered (Bailis and MacCoun 1996; Garber and Bower 1999; Haltom and McCann 2004; MacCoun 2006).3 This is the journalistic form of “scorekeeping.” Simplistic, sensationalized, and succinct reporting may filter out the novel, complex, substantive contentions that reformers aim to publicize and may emphasize instead outlandish claims or derelictions of traditional assignments of responsibility. Claims that depart from common sense and causes that flout individual responsibility in favor of blaming government or corporations may introduce new ways of seeing familiar problems in ways that virtually guarantee that most readers will settle for familiar perspectives. In sum, what news media propagate, they tend to overstate and to understate in keeping with news values and common sense and not with the novel views or uncommon sensibilities needful to make readers and viewers aware or to change readers’ and viewers’ attitudes and beliefs.

If reports of reform efforts disparage attempts to change minds or to reconceive policies through themes friendly (or at least friendlier) to reformers, then reform-oriented lawsuits may boomerang in disadvantageous publicization. Cases sometimes serve causes poorly. If publicized litigation makes reformers and their causes look ridiculous, then news media may over time radiate assessments as harmful to reform messengers as to reform messages. Some activists might endure caricature or personal attacks in return for advances in their causes, but reformers and reforms portrayed as mutually reinforcing promotions of irresponsibility may make lawsuits counterproductive to their own causes.

In contrast, reform-minded legal activists may elicit coverage that supplants stereotypic villains (for examples, frivolous, ambulance-chasing lawyers, self-styled victims who pour coffee on themselves then sue, and judges who seek punitive damages for pants lost at the cleaners) and some customary perspectives (for example, that individuals bear responsibility for their own choices) with characterizations and frames more advantageous to their causes. With beneficial coverage reformers seeking to induce or coerce governments or corporations to share responsibility with the citizenry might fare better than in other litigation or in lobbying, electioneering, or other alternatives to litigation.

The strategic and tactical advantages of plaintiffs and the strategic and tactical liabilities and vulnerabilities of defendants look very different if we take seriously the capacity and potential of plaintiffs to change the minds of citizens and leaders about the makers and marketers of products that plaintiffs want regulated. Through litigation and discovery, plaintiffs have documented reckless indifference to the welfare of customers, deceits, and willful subordination of health and lives to profits. Reformers have shown how and how often makers and marketers of suspect products have engaged in duplicity, misrepresentations, and frauds to advertise their wares, to camouflage their misdeeds, and to promote images as solid corporate citizens that belie their conduct and orientations. Whistle-blowers and troves of secreted documents have enabled accusers to move beyond negligence and recklessness to actions and practices that resemble or constitute crimes. Litigants who establish the responsibility or even culpability of manufacturers, marketers, and other usual targets of civil suits before judges and juries may achieve public relations victories that survive courtroom defeats. Activists who long have waged publicity campaigns to “criminalize” industries (Kagan 2001) have often relished opportunities to deploy almost prosecutorial tactics against civil defendants that the activists view as malefactors. Often such legal actions have combined elements of civil and criminal litigation ordinarily deployed to pursue and punish white-collar defendants deemed criminals (Koenig and Rustad 1998, 2004; Simons 2008; Youngdale 2008). Whether lawsuits invoke innovative uses of “public nuisance” doctrines or basic principles of criminal fraud, litigants may through such tactics transcend their losing records in courts with much greater success in mainstream media.

If plaintiffs and plaintiffs’ attorneys have wielded “game-changers” that often enable victories outside, beyond, or after trials in which activists and attorneys were soundly beaten, then causes may secure widespread cultural advances, if not flat-out victories, even from lawsuits that those causes routinely lose. The instant, obvious outcome may be defeat. Among the eventual, subtler consequences may be changes in definitions, perspectives, interpretations, symbolizations, and minds. That’s the problem with “keeping score” too narrowly.

How Criminalization Changed Tobacco and Firearms Reform

If plaintiffs, activists, and reformers have some capacity to change coverage to reflect themes more advantageous to their causes and very disadvantageous to defendants and companies, has such capacity been realized to any extent in recent litigation? We answer that rhetorical question in the affirmative and now adduce two exemplary deployments of lawsuits to “prosecute” culprits.4

Our paper “Criminalizing Big Tobacco: Legal Mobilization and the Politics of Responsibility for Health Risks in the United States” showed how tobacco plaintiffs changed characterizations of tobacco suits in the New York Times and challenged Big Tobacco despite Big Tobacco being virtually unbeatable in court (McCann, Haltom, and Fisher 2009). Allegations that manufacturers and marketers of tobacco products had behaved irresponsibly and duplicitously crept upward despite an absence of overt vilification or imbalanced characterizations of defendants in the pages of the New York Times 1984–2005. Criminalization of tobacco defendants proceeded despite plaintiffs losing hundreds of lawsuits against tobacco companies. Themes that had long assisted tobacco defendants, especially the “Individual Responsibility” of those who elected to use tobacco products, slowly declined. Themes much more to the liking of tobacco plaintiffs ticked upward as suits revealed evidence of the responsibility of corporations for addicting consumers at early ages and the duplicity of corporations in covering up the carcinogenic effects of tobacco use. Themes piled up against tobacco companies and in favor of Big Tobacco’s detractors despite very balanced descriptions of corporations, defense lawyers, and allies in New York Times reports.5

Did such sullying of Big Tobacco through media cued by and reliant on the New York Times in turn affect regulation of tobacco makers and marketers? Evidence and inference indicate that indirect effects of coverage and imagery matched the ramifications of largely losing litigation to force new policies and practices on the Industry (Center for Responsive Politics 2010, 2011; Derthick 2010b).6 Beyond the Master Settlement Agreement of 1998, litigation, reportage, and imagery appear to have influenced the defection by Philip Morris, the largest seller and historically the manufacturer most concerned about its public image, which split the tobacco industry. A compelling study of internal documents disclosed in compliance with the Master Settlement Agreement reveals that Philip Morris began in 1999 to explore the option of supporting regulation by the Food and Drug Administration (FDA) in part because its polls and focus group studies showed that its corporate image had plunged among the citizenry (McDaniel and Malone 2005), a stark departure from the company’s attitude toward FDA regulation (Kessler 2002). In 2009, Philip Morris spent more than $4 million lobbying for the FDA authorization bill that became law (Layton 2009). Internal communications from Philip Morris commented on the corporation’s concerns about the lawsuits highlighting “the deceptive practices of the industry” and allegations of racketeering, conspiracy, and fraud. Moreover, Philip Morris supported governmental regulation of tobacco as

part of a broader effort to address its negative public image, which has a damaging impact on the company’s stock price, political influence, and employee morale. Through regulation, the company seeks to enhance its legitimacy, redefine itself as socially responsible, and alter the litigation environment.

(McDaniel and Malone 2005)

Criminalization in the legal mobilization effort seemed to play a huge role in leveraging support for the regulatory authority over Big Tobacco. Both the increasing stakes and substantive re-framing of litigation arguably contributed to a “tipping point” recalibrating the equilibrium in tobacco policy (Wood 2006).

Reformers who organized lawsuits to reform policies regarding firearms provide a second example of how criminalization or near-prosecution can succeed in newspapers beyond apparent successes in courtrooms. As a result of charges, filings, discoveries, and other accumulations of arguments and information, manufacturers and marketers of firearms took many hits over their dishonesty or irresponsibility in various newspapers in 1984–2005 despite the absence of overt vilification of particular defendants in coverage and despite the victories of firearms makers in courts and in other venues.7 Firearms lawsuits, like tobacco lawsuits, drew greater attention to and coverage of corporate responsibility for some gun-related problems and revealed examples of corporate duplicity even as attention to and invocation of themes of individual responsibility dipped in coverage in several major newspapers.

Perhaps the re-framing in newspapers and other media mattered little in the contest to regulate firearms. Perhaps firearms companies—far less well heeled than tobacco companies—tired of extensive fees for legal defenses or poor public relations. Nonetheless, the National Rifle Association and other defenders of the manufacturers, marketers, and owners of firearms moved quickly to induce legislatures to ban lawsuits against firearms interests. Scorekeepers who deem firearms suits to be failures owing to the few victories and many defeats of proponents of greater regulation of firearms should at least consider whether intangible, indirect advances by firearms plaintiffs might explain or justify closing the courthouse to such lawsuits; tangible, direct outcomes of such suits would seem to have threatened the makers and marketers of firearms at most minimally.

What Narrow Scorekeeping May Miss

In tobacco and firearms lawsuits alike “Individual Responsibility” frames— presumptions, expectations, or demands that consumers bearing the costs of their decisions to consume products or those who misuse legal products bearing blame for deaths, injuries, and crimes from those products—tended for decades to be features of producers’ defenses against attempts to ban or regulate products via lawsuits. In newspapers from 1984 to 2005, these “Individual Responsibility” frames declined relative to frames emphasizing the responsibilities and sometimes even the criminal culpability of those who manufactured or marketed tobacco or firearms. Those who sought greater control of tobacco or of firearms circumvented disadvantageous “Individual Responsibility” frames through dramatic attributions of the collective responsibility to manufacturers and marketers—that is, “Corporate Responsibility” frames— and the collective culpability of manufacturers and marketers in misleading opponents and officials in courtrooms as in public relations—that is, the frames we call “Corporate Duplicity”—as we shall see in detail later in this chapter. Combinations of responsibilizing and criminalizing rhetorics often failed in courtrooms but made major headway in mass media, so those who would “score” litigation strategies or tactics ignore perhaps wider and more resonant changes in coverage and focus instead on narrower and perhaps highly technical results in courtrooms. Moreover, in the studies of tobacco and firearms coverage that we synopsized above, responsibilizing and criminalizing rhetorics dominated newspapers and other popular media more when lawsuits were involved prominently than when tobacco or firearms control was discussed with little or no mention of lawsuits. Articles that extensively or intensively reported lawsuits demonstrated the promulgation of “Corporate Responsibility” and “Corporate Duplicity” frames far beyond articles that featured little or no attention to litigation.

Our studies of tobacco and firearms cases, in sum, revealed that even though plaintiffs almost always lost particular cases they secured coverage that publicized charges of corporate irresponsibility and corporate deceit or mendacity. Hundreds of newspaper articles in which coders could find little overt or direct vilification of producers and little or no detectable sympathy for consumers teemed with frames that plaintiffs preferred, so the shifting of frames and themes appeared to follow less from reportorial or editorial bias than from the structure and process of litigation. Civil litigation involves filings in which plaintiffs assert defendants’ negligence, recklessness, or culpability as part of the cause of action. The more that reform-minded civil litigants deploy tools usually used to prosecute white-collar defendants, the more those litigants exacerbate charges and accusations. If activist plaintiffs appeared to have “criminalized”8 tobacco and firearms companies in news media even when suits failed in courtrooms, this change of corporate image should be counted among the ramifications of regulating or reforming through lawsuits.

Avoiding Overgeneralization