Abstract: In 1996, Daniel Bailis and I published a statistical content analysis of media reporting on tort litigation between 1980 and 1990, at the peak of the "tort reform" debate. Compared with objective data on tort cases, we found that the magazine articles considerably overrepresented the relative frequency of controversial forms of litigation (product liability and medical malpractice), the proportion of disputes resolved by trial (rather than settlement), the plaintiff victory rate at trial, and the median and mean jury awards. Since that study was published, several content analyses have extended our work with respect to methodology and legal domain (e.g., employment discrimination cases, air-bag litigation, pharmaceutical industry litigation). In my paper, I will first briefly review the findings of these studies and sketch out their implications for claiming rates, settlement rates, and deterrence. I will then contrast two classes of explanations for the distortion. One class involves functional explanations involving media markets, the political interests of corporations, and the motivations of ordinary citizens. The second class involves formal attributes of the trial narratives themselves (plot features, numerical magnitude, and so on). I will argue that a formal, perceptual account is surprising successful in accounting for the observed pattern of distortion. In contrast, the functional accounts are either tautological or contradictory. If in fact the media distorts trial outcomes in the service of powerful corporate interests, they may be doing those interests a disservice. Everything else being equal, rational choice and psychological accounts agree that exaggerated estimates of the expected value of a lawsuit should encourage blaming, claiming, large awards, and overdeterrence. Author : Robert J. MacCoun, Center for the Study of Law and Society Jurisprudence and Social Policy Program. Source: JSP/Center for the Study of Law and Society Faculty Working Papers.
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