Looked what was just leaked to us!
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CONFIDENTIAL MEMO
To: American Tort Reform Association
From: Property/Casualty Insurance Industry PR Hacks
Date: December 6, 2021
Re: Good luck tomorrow!
I hope you know that we value nothing more than our friends in the “tort reform” movement, like you, who share our goals: getting politicians and media outlets on our side, demeaning judges who rule against us, and passing laws that take power and authority away from juries. Our methods may be different than yours: we engineer the unjustifiable price-gouging of policyholders until they scream, you issue an inane repetitive yearly “judicial hellhole report” designed to cause screaming! (More about that below.) But as our goals are the same, we thought you might benefit from our recent experience trying to attack judges and juries during a pandemic - since it looks like you are officially releasing another one of these reports tomorrow.
We should start by being honest and telling you that those screaming about your report aren’t quite what we’d hoped, and have instead presented some real PR challenges for our movement. The severity of attacks by legal scholars and media outlets even took us by surprise! Targeting jurisdictions with poor and minority populations probably doesn’t help either (although we do that all the time so who are we to judge?). Also, attacking local judges and juries seems un-American and unpopular to a lot of people. So, while you were already on thin ice with this “study,” there is now a whole new context to consider: the pandemic. The civil justice system was dormant for many months and is only now slowly coming back to life. Jury trials stopped, are still not happening in many places, and injured people can’t get cases heard. In other words, this darn pandemic has just wreaked havoc on our PR messaging!
We know this from experience. Let us explain. A few months before the pandemic, we began suddenly raising insurance rates on businesses (as usual) despite sitting on mountains of cash (close to a trillion dollar surplus now). For forty years, we followed a standard playbook: 1. Suddenly raise rates on doctors and businesses so they go nuts; 2. Falsely tell them that lawsuits, juries, lawyers and victims are to blame even though there is never a spike in insurance claims or lawsuits; 3. Lie to politicians, saying enacting “tort reform” is the only way to bring down rates; 4. Get "tort reform" laws passed that take power away from juries. This worked every time.
But our old tricks aren’t working now. In 2019 and 2020, we dutifully created a new insurance crisis, trying to follow the same playbook. We even thought up a convenient new term to blame for our price-gouging. We called it “social inflation” - a term we haven’t given up on yet, by the way. We thought this was a perfect PR device, a term so vague it can be used for everything we hate: policyholders who go court, “aggressive” attorneys who represent them, and local juries. But one thing we didn’t anticipate: COVID. COVID shut down the courts. Complaining about too many lawsuits and “out of control” juries suddenly made us look silly. And without that kind of PR hook, no one was screaming for “tort reform.”
Things aren't getting much better. In fact, thanks to the pandemic, civil cases are now completely backlogged. Civil cases are being put at “the end of the line,” and they are piling up. Judges – and there are simply not enough of them - are trying to prevent jury trials altogether, often for the safety and economic concerns of potential jurors. They are pressuring settlements like never before. So believe it or not, sometimes we’re the ones pushing for jury trials now! (As one lawyer put it, “We are finding that liability insurers and defendants, most of the time, will not waive their right to a jury trial…”)
Now I’m not saying you won’t be able to bamboozle some, shall we say, “gullible” reporters and editors to pick up your spin. For example, just look at the awesome, highly misrepresentative headline by media outlets (like here here) reporting on a so-called “record breaking” Nebraska jury verdict for a negligently injured, permanently-disabled child. We all know the family will receive only a tiny fraction of this verdict because Nebraska has a severe cap on damages for injured patients including children – a cap the jury was not told about. But this fact was barely mentioned in the articles. Kudos to whatever PR operation hoodwinked some lazy reports and editors on this one! But the media isn’t as reliable for us as it used to be. Take, for example, the very popular podcast “You’re Wrong About That.” Here’s what they tweeted when they re-ran this year their episode on the McDonald’s Hot Coffee case. They’ve turned our entire PR fabrication about this case on its head, just like the 2011 HBO documentary film Hot Coffee.
Whatever happens tomorrow, we’ll have your back don’t worry. We just feel bad that your role in our movement has been reduced to releasing tired, discredited messaging about judges and juries who rule against your corporate members when they kill and injure people. Perhaps it's time to reevaluate?
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