As I was driving my daughter, Shannon, to school recently, the radio crackled with talk about the settlement of a lawsuit brought by an overweight McDonald’s employee alleging discrimination. Regardless of its merits, I wondered how this case, among the thousands tried or settled each day in America, made it to the radio.

Talk-radio hosts could have chosen to discuss one of the five largest verdicts in the United States in the past 12 months, reported by the National Law Journal—all were business-versus-business cases that brought verdicts in the hundreds of millions of dollars.

Or they could have talked about news reported in one recent edition of the New York Times business section: The Royal Dutch/Shell Group paid $7.79 million for manipulating electricity supplies in California; a former CEO of Warnaco Group, a clothing company, paid $12.85 million for defrauding investors; a jury in Alabama found ExxonMobil liable for depriving the state of its natural-gas royalties. And in an article headlined "The Smoke and Mirrors of Food Labeling," the same edition of the Times reported that "food companies . . . routinely exploit labeling laws to allow them to make their products seem less fattening than they really are."

Which brings me back to the radio program and to our opponents’ concerted attempt to portray the civil justice system as something it is not.

Public attitudes

Despite our work holding the Enrons of the world accountable, uncovering the hazards of Firestone tires, and exposing the tobacco industry’s lies about nicotine addiction, trial lawyers are made out to be greedy opportunists without concern for the public good. Every day, we hear media reports about "jackpot justice," "frivolous lawsuits," and "the tort tax." But do these phrases truly reflect public attitudes?

Apparently not. According to a recent report by the Commonweal Institute of Menlo Park, California, these phrases have been tested, found to be "influential language," and carefully marketed to undermine the civil justice system.

Alliance exposed

The report, The Attack on Trial Lawyers and Tort Law, uncovers the alliance between conservative think tanks and industry-backed interest groups such as the American Tort Reform Association, Citizens Against Lawsuit Abuse, the Washington Legal Foundation, the CATO Institute, and the American Legislative Exchange Council.

The report exposes how industries seeking legal immunities have "pursued a strategy of creating and funding numerous seemingly independent advocacy groups that push tort reform arguments, work to discredit opponents, and use marketing methods to change underlying public attitudes over the long term." It analyzes a strategy that "has included phony ‘grassroots’ campaigns designed to give an impression of widespread public support for an issue, the circulation of false or misleading lawsuit scare-stories," and the establishment of organizations and Web sites "that seek to taint the public image of trial lawyers."

These think tanks conduct "studies" and issue "reports" in which they use "influential language," and then market their "findings" to the media in an organized way. For example, the Commonweal report shows how the phrase "out of control"—referring to lawsuits—has found its way into magazine columns, newspaper editorials, books, advertisements, broadcast news programs, medical association publications, Web sites, college newspapers, and even a presidential speech. It describes how effectively this campaign has undermined trust in the civil justice system, influencing legislators, scholars, and, ultimately, jurors.

Those waging the current campaign have become so brazen that they fabricate cases and encourage the media to report them. A U.S. News & World Report editorial cited a case in which a woman allegedly threw a soft drink at her boyfriend, then slipped in the liquid, sued the restaurant, and collected $100,000. There was only one problem with the story: It never happened. And last month, Newsweek published a cover story heavily biased against the civil justice system: It was packed with factual inaccuracies and misleading statements, and it described alleged frivolous lawsuits without case citations or other substantiation.

Our opponents subscribe to the proposition that a lie repeated often enough becomes the truth—and that spreading deception about civil justice will make the political climate favorable for legislation that would deprive citizens of their Seventh Amendment rights.

It is time for trial lawyers to stop this campaign of distortion. The Commonweal Institute has done a great service to the American people by identifying this organized and disciplined attack to undermine civil justice. Now the trial bar must respond as never before—and we will.

David S. Casey Jr.