Microtrends or Disruptive Forces in Tort Reform

"By the time a trend hits 1 percent," says Mark Penn who coined term "soccer moms," it can be a disruptive force.  In his new book "Microtrends: The Small Forces Behind Tomorrow's Big Changes," this public relations leader and  political consultant provides educated nannies, older women dating younger men [cougars] and home schooling as examples of such trends.

In law, I am seeing pushing back, as the former lead paint industry and Merck are doing, instead of settling as a new and far-reaching approach to tort reform. Instead of schlepping to legislatures for constraints on the plaintiff bar, companies are applying a more direct strategy: Fight.  The easy money - think tobacco - used to be in organizing a high-profile individual injury or class-action lawsuit and wait for the defendants to settle.  As we saw in the tobacco settlement, that doesn't settle much.  So, why not erect an aggressive and innovative offense [Sherwin-Williams' federal suit against the Ohio cities suing it], keep at it, see what happens, and learn from it. 

Yes, it's expensive.  According to Ashby Jones of THE WALL STREET JOURNAL Law Blog, "to date, Merck has spent more than $1 billion on the Vioxx litigation." In its sustained fight against plaintiff firm Motley Rice, Sherwin-Williams has been using the white-shoe law firm Jones Day.  That can't be cheap.  But both companies have been winning significant victories, including Thursday's from the New Jersey Supreme Court for Merck. 

The payoffs of not settling can be profound.  As I see them, they could include:

• Being there long enough to accomplish victories in courts such as the state Supreme Courts wins in New Jersey and Missouri for Sherwin-Williams.  There is also time for tort reform to be argued and legislation implemented.  A prominent plaintiff attorney opined that these wins wouldn't have happened for the former lead paint industry had not tort reform taken place.  If you not out there slugging, you will never know who will win and who will lose.

• Neutralizing negative publicity in the court of public opinion.  Not settling in itself sends a message of innocence.  Fighting the good fight reinforces that message, over and over again.  This lag between the threatened suit or the actual suit and the sustained defense provides the opportunity to present the facts to all relevant constituencies.

• Another message also gets delivered.  It's targeted at the plaintiff bar.  It is: Think twice before taking us on again.

• Defendants learn invaluable lessons on how to mount a defense and offense.  For example, from the Rhode Island Lead Paint Trial II, the lead industry gained the knowledge that the jury respected medical testimony.  In the later City of Milwaukee v. NL Industries, lead attorney Donald Scott seemed to apply this, calling medical experts to testify for the defense.  Scott won an acquittal. [On 9/6, there was a hearing on the plaintiff's motion for a new trial and to change the answer to Question 2 on the jury verdict form].

• Other potential targeted industries also learn plenty from watching.  This growing knowledge base can deter the plaintiff bar and state attorneys general.

What are some other possible microtrends in tort reform? Here's my take. 

One microtrend is the use of citizen journalism.  The pro-tort reform think tank Manhattan Institute operates a sophisticated blog.  Headed by Walter Olson it doesn't miss a trick.  It catches everything from the bizarre pants lawsuit to effective defense strategies. 

Another is niche means of communications which focus on and hammer away at one issue.  LEGAL NEWSLINE, for example, is the place to go for updates on and analysis of state attorneys general's trends.

A third is empowering constituencies, be they company employees or shareholders, to become evangelists for tort reform. From the e-mail I receive from employees of the lead-paint defendant companies, it's obvious they see themselves as ambassadors for preventing this sort of legal peculiarity from happening again.

A fourth is embracing humor.  There's less of that corporate gravitas that used to dominate messaging about public affairs.  Snark is everywhere, including in THE WALL STREET JOURNAL Law Blog. 

Readers, do you have any insights about these or other microtrends to share with us?  Please contact Mgenova981@aol.com.