George Lakoff Discusses "Tort Reform"

Q: Professor Lakoff, why have conservatives made such a major issue of “tort reform” and “lawsuit abuse”?

Lakoff: For two main reasons. The conservative worldview includes the fundamental belief that business is only about profits. They believe that anything that interferes with the opportunity to maximize profits, including the range of protections that are so important for society, should be eliminated or at least severely restricted. And of course, lawsuits to compensate for injuries and to punish those who knowingly caused them are some of those socially important protection mechanisms that can diminish profits.

So, the right wing is attempting to destroy this system by promoting legislation to eliminate punitive damages and cap compensatory damages to relatively small sums. This legislation benefits business both by minimizing the risk of any single suit and by creating a disincentive for lawyers to take cases. Lawyers have to spend their own money to search for evidence of harm, to put together a case, and to prosecute the trial. Their compensation, if any, is a percentage of the “recovery” — the compensatory and punitive damages. Though the lawyers' fees sound high, most of those fees go to support the system. If damages are capped or eliminated, the system will break down for lack of funding.

The attack on tort suits also amounts to an attack on those lawyers who represent injured parties. Those lawyers have historically supported progressive causes and candidates. Not to put too fine a point on it, conservatives want to dry up the flow of contributions from trial lawyers by squeezing their source of income.

Q: How have conservatives mounted their attack?

Lakoff: They have very cleverly framed the public discussion and have repeated these frames so often and for so long that they have become ingrained in the public’s mind, which means that those frames have become realized physically in the brains of many members of the public.

Q: What are some of those frames?

Lakoff: To begin, the very phrase “tort reform” evokes a frame. In two words, it communicates that something is the matter with the tort system, which requires reform or correction. In this respect, the phrase is similar to another effective conservative phrase, “tax relief.” Once the public accepts these phrases, they have bought into the idea that they need to be relieved from the affliction of taxes and that they need to fix the tort system. The debate then turns to the question of how and how much. At that point, progressives can’t win the debate; the best we can do is limit the losses.

Q: What other frames have the conservatives employed?

Lakoff: They repeat the phrases “lawsuit abuse” and “frivolous lawsuits.” They refer to “greedy” and “out of control” lawyers. These words suggest that the speaker is a good, honorable, hard-working, God-fearing person. Opposition to abuse communicates reverence. Being against something frivolous is to be prudent and serious. Opposition to things out-of-control implies being orderly and law abiding.

Let’s take another expression that they often use: “litigation lottery.” In order to meaningfully use a word like “lottery” you need a frame. That frame has in it everything about a lottery. It’s gambling. It says you’re not making money by being an honest, hard working person going to work every day. You’re trying to make money just by gambling. That sets up a contrast between the kinds of people who are diligent, careful and frugal and those who want something for nothing and perhaps are willing to cheat to get it.

Once they’ve twisted the discussion to the point where people accept that lawsuits are bad things, the “tort reformers” take it another step. They say that the “frivolous lawsuits” are the cause of the high costs of health care and health insurance. Because people have accepted the frames, they are willing – even in the face of contrary evidence – to believe these statements.

Q: How have the conservatives been able to come up with such effective frames and messaging?

Lakoff: That’s easy. Time and money. Extremely well-funded conservative think tanks have been tackling these issues for the last 40 years. They have become quite expert at figuring out how to frame messages that appeal to persuadable voters.

Q: Have consumer advocates, trial lawyers, and other progressives had much success responding to these conservative frames?

Lakoff: No. Despite spending great sums of money, they have had very little success, as we’ve seen with all the new tort reform legislation at both the state and federal levels. And more legislation is in the pipeline.

Q: To what do you attribute this lack of success?

Lakoff: The primary reason is that the progressive groups you mention have fought the fight on the “tort reformers’” turf, that is they have merely offered facts to rebut the conservatives’ frames, leaving the frames intact. They’ve tried to show that lawsuits aren’t frivolous, that lawyers aren’t greedy, that plaintiffs are genuinely aggrieved. It’s like Nixon saying, “I am not a crook,” which made everyone think of Nixon as a crook. As I said before, once you go down that road you’ve already lost the fight. It’s only a question of how badly.

Q: What’s the alternative?

Lakoff: First, we have to recognize that when the right wing says “tort reform,” what they really mean is destruction of the civil justice system. Just what is the civil justice system? Most people have a frame for the criminal justice system, but not the for the civil justice system. Since a corporation isn't literally a person, it can't be put in jail for performing harmful or murderous acts. When corporations engage in practices that harm or kill people, the only way through the legal system to punish them and give them an incentive to stop their harmful practices is to sue them and make them pay.

In the civil justice system, the trial is in the form of a lawsuit. The victims of harm are the plaintiffs and the defendants are typically corporations. The roles of police and prosecutors are played by the plaintiffs' lawyers. The victims come to lawyers (the only police). The lawyers search for evidence of harmful corporate behavior. The plaintiffs' lawyers act as prosecutors. The punishments are of two kinds: compensatory damages (compensating victims for harm); and punitive damages (punishing corporations that do harm).

Since a billion-dollar corporation cannot be imprisoned, only very large compensatory and punitive damages can provide sufficient disincentives from doing harm. Given the current climate of less and less regulation of business and increasingly lax or underfunded enforcement of what regulations remain, the civil justice system is rapidly becoming society’s only line of defense. Without it, the unscrupulous can and will run roughshod over the American people, maiming people, making them seriously ill, and sometimes killing them — all in the name of profit. Limiting profits is the only deterrence in many cases. Bear in mind that conservative voters believe in deterrence. It’s a basis for their support of the death penalty, for example. Conservatives also believe in the concept of being responsible and accountable. It relates to their strict father family model for society and government that I’ve written about.

Q: With that understanding, what do progressives do?

Lakoff: What we have to do is create and communicate our own major frames, frames that communicate this fundamental role of lawsuits and trial lawyers in protecting the public. These frames must be communicated through narratives that people understand and resonate to. There are two key components here. The first is the notion of protection. The second is the idea that it is the public that is protected rather than certain individuals being compensated for injuries.

Q: Why is that important?

Lakoff: Because as a general rule, people don’t readily identify with victims. They tend to think that those victims somehow haven’t taken care of themselves properly. So the more effective frame is the bigger picture of societal protection.

Q: How would that work?

Lakoff: Let me back up slightly. Progressives must understand that the business of America is business. Most people are involved with business. Most people are honest and want to do the right thing. Trust is an essential component of a healthy, functioning business economy. But there are dishonest, unscrupulous business people that undermine that trust. We must emphasize that the marketplace itself is under threat from those bad actors. Lawyers are necessary to bring the suits that ferret out those who undermine trust and threaten the health of the marketplace.

Q: What other frames do you think would be effective?

Lakoff: Plaintiffs are and should be portrayed as courageous souls. After having suffered harm at the hands of the defendant, they must stand up to the rigors of the justice system, including intense cross-examination and personal attacks, and must display the great patience to withstand the delays of the process. They do it not just for themselves, but for the public as well.

I should emphasize that though I feel strongly about these ideas, none have yet been researched and tested. That’s something that we at Rockridge have on our plate.

Q: How do you communicate these points?

Lakoff: We must create narratives that reclaim the moral high ground: unscrupulous businesses against lawyers — the police and prosecutors — who protect the public. An important image is the open door to the courthouse. Conservatives want to slam the courthouse door shut. We want to keep it open. That concept encompasses everything from preserving the laws that protect the public, to the right of juries to impose fair damage awards that won’t be taken away by judges, to the right of plaintiffs to be able to contract with their lawyers without government interference.

Q: Are word choices important as well?

Lakoff: Of course. I’ll give you a couple of examples. I’ve already mentioned the phrase “tort reform.” This plays so well into the conservative frame. Progressives should not repeat this phrase. They should point out over and over that conservatives are trying to destroy our precious system of justice. Another example is “trial lawyers.” It’s a label that conservatives have been vilifying for a long time. It would take a lot of effort to try to revive any positive connotations. More importantly, it doesn’t communicate the frames that I’ve discussed. By contrast, “public protection attorneys” communicates the right frames and avoids the negative connotations. But this can’t be used until the idea of the civil justice system and protection is first in place in the public mind.

Remember that it’s not just a matter of words. It is a matter of conveying a complex truth to the public, a truth in the form of a high-level complex frame. This cannot be done just by describing it once. The civil justice system has to be described over and over, and portrayed in the arts and the media. Words are important, but ideas come first.

This is not a matter of one ad campaign. It must become part of the system of progressive ideas, part of the framework progressives use to think about public issues.

Q: Where do we go from here?

Lakoff: That’s what Rockridge is all about. We are in the process of writing a Progressive Manual that will offer a fresh, reframed approach to the whole range progressive values and issues. The issues we’ve talked about today will be included in our section about public protection. With help from the progressive community, we’ll be able to do our work quickly and well, and generate a product that will help reshape the political dialogue for the long term. We are running a marathon here, not a sprint.

Defense of the civil justice system is not just a trial lawyers’ issue. It is an issue for all progressives, just as “tort reform” is an issue for conservatives in general. The trial lawyers should not be standing alone here. They should be supported by the environmental community, the labor community, the anti-poverty community, and every other progressive in America. Trial lawyers are not just defending their clients; they are defending all of us by making the civil justice system possible.