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Turning on Those Who Turn to the Courts

View more insights in Professional - Uncategorized - Law - Tort Law

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View the page of Jeb Barnes

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Do people turn on those who turn to the courts? Jeb Barnes suggests they do. His research finds people have significantly more negative attitudes toward personal injury litigants than other types of claimants, even when they believe the claimant is injured and mostly not at fault.

Image courtesy of interviewee. December 7, 2023

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This video video discusses the pervasive nature of litigation in American society, citing that roughly 600,000 personal injury cases are filed each year, which averages to over one lawsuit per minute. Concerns about litigation have been raised, with criticisms focusing on its costs, unpredictability, and inefficiency, as well as its societal implications. The authors of the study highlight a potential backlash against litigants, even those with valid claims, questioning whether public attitudes are fixed or changeable.

The research employs a survey experiment to explore how people perceive a hypothetical claimant, Joe, who suffers a work-related injury. Participants are presented with different scenarios where Joe seeks various remedies—doing nothing, seeking family help, or hiring a lawyer for a lawsuit or other claims. Results indicate that while participants recognize Joe’s injury as legitimate, their attitudes toward him become significantly more negative when he chooses litigation over other remedies.

The study also investigates the broader narrative around litigation, suggesting that negative media portrayals could shape public perceptions, leading to biases against those who opt for legal action. The authors conclude that to combat these societal challenges and improve public perception, lawyers should consider exhausting other remedies before pursuing litigation. This video video strategy may foster a more favorable view in both legal and public contexts for clients with legitimate claims.

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Here are some articles that discuss similar themes related to litigation in American society, public perception of lawsuits, and the implications of pursuing legal action:

1. **"The Impact of Legal Culture on Public Perception of Litigation"** - This article explores how the cultural convideo of the legal system influences public attitudes towards litigants and the litigation process, analyzing how media coverage can affect the societal view of claimants.

2. **"Understanding the Costs of Litigation: A Societal Perspective"** - This piece delves into the financial and emotional costs of litigation, examining the impact on individuals who pursue legal remedies and the potential backlash they may face from society.

3. **"Litigation and Image: How Media Shapes Perception of Lawsuits"** - This article discusses the role of media in shaping public perceptions of lawsuits and litigation, focusing on specific case studies that highlight the disparities in how claimants are viewed based on their choice to pursue legal action.

4. **"Does Seeking Legal Help Stigmatize Plaintiffs? A Study of Public Attitudes"** - This research study surveys public opinion on individuals who choose to litigate versus those who seek alternative remedies, providing insight into the societal biases against litigants.

5. **"The Evolving Landscape of Personal Injury Litigation in America"** - This article reviews trends in personal injury cases, including statistics on the number of cases filed annually and discussions about public concerns over the litigation process.

6. **"The Psychology of Litigation: How People Perceive Legal Claims"** - This research examines the psychological factors influencing how individuals respond to claims of injury and the consideration of litigation, assessing the legitimacy versus social stigma faced by claimants.

7. **"Exploring Alternative Dispute Resolution: A Shift from Litigation?"** - This article discusses the rise of alternative dispute resolution (ADR) methods, evaluating how these can influence public perceptions of claimants who avoid the courtroom.

These articles should provide a diverse range of perspectives on the issues highlighted in the original video, such as societal perceptions of litigation, impacts on claimants, and the broader implications of legal actions in American culture.

X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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You know, litigation is everywhere.

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Uh, it's in our boardrooms, it's in our bedrooms,

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it's in our churches, schools, parks.

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Uh, it even, decides the odd presidential election.

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And just to give, one number to this phenomenon,

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Americans reportedly filed 600,000, personal injury

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or tort suits every year in state court.

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So that, averages out

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to a little more than one suit a minute, 24 hours a day,

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365 days a year.

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So it's a lot of litigation,

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and it's not surprising that there's been, a lot

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of criticism with respect

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to our reliance on litigation ranging from academics

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who talk about its cost and unpredictability

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and inefficiency to conservatives that talk about litigation

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as a sign of social decline.

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And of course, all these,

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high profile negative media accounts

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of litigation like the infamous,

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McDonald's high coffee case.

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Um, so, in this paper,

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we sort of, the background is sort of thinking about, about

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that backdrop and those criticisms matter.

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They matter both inside and outside the courtroom.

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So if there's this negative reflexive reaction,

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to litigants, then it may be that people, even people with,

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meritorious claims, might have a hard time,

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getting relief in court.

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Uh, it also may set the stage for, the types of reforms

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that are aimed at blocking access to the courts,

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as opposed to trying

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to tamp down frivolous litigation like damage caps, which,

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basically try to discourage all litigation, by

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limiting the amount of recovery and successful ones.

01:36.065 --> 01:39.005
So with that background, we, we sort of asked two questions.

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So the first question, as you said, as the paper's titled,

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do People Turn, against the Courts even when they have,

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meritorious claims?

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And then the second question, which is, well, if so,

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are these, attitudes fixed or can we shift them?

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Uh, and those are the questions that that frame the project.

01:57.705 --> 01:59.965
And I should add that this paper is a down pro,

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down payment on a broader project where we look at lots

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of different policy areas and we find very similar results.

02:05.685 --> 02:08.005
A lot of the literature focuses on slightly different

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questions when it comes to backlash.

02:10.345 --> 02:13.765
So there's a broad literature that talks about,

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the relative ability of the Supreme Court

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and say, legislatures

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or referendums to,

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give an impro imprimatur of legitimacy.

02:24.865 --> 02:26.845
So that's, you know, sort of related to this question

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of institutional choice, but it has to do with, with policy.

02:30.925 --> 02:33.665
Um, there's some literature that talks about

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how individual decisions

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can turn people against individual groups of claimants.

02:39.205 --> 02:41.785
So there's a large literature on sort of marriage equality.

02:42.215 --> 02:44.225
What distinguishes our work is

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that we're looking at the decision to litigate itself just

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as the choice of remedy trigger a negative reaction.

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And that part is new, in terms of the scholarship

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of thinking about the, so what of institutional choice.

02:59.225 --> 03:01.325
One of the things that is really difficult about doing

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this kind of research is how can we zero in on that choice

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of remedy the decision to go to the courts

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or government program or elsewhere?

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And that's really tough because there's so many things

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that can affect people's attitudes towards claimants,

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their age, their race, their ideology,

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their affective response to the underlying injury scenario.

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So we decided to do a survey experiment.

03:23.345 --> 03:24.525
No, no method is perfect,

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but what's nice about it is in a survey experiment,

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we can give all our participants the same injury scenario,

03:31.425 --> 03:34.485
and then we can randomly assign the choice of remedy.

03:35.065 --> 03:38.605
And that allows us to compare across the groups the average

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response to the underlying claimant.

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And that gives us some leverage.

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Now, the trade-off is

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that you worry about external validity.

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Is this just a product of the individual experiment?

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And that's why when we mentioned,

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replicating these findings in other policy areas

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is, is so important.

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But, so the basic idea is to try

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to randomize this, choice.

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So maybe a few more details.

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Uh, and unfortunately the devils are,

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are in, the details.

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So the, the common scenario is we start

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with a man named Joe, and Joe's a worker.

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He's been working a company for a long time, and he's sick,

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and he gets sick from, chemicals that he used at work.

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And Joe says, you know, the,

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the company should have warned me about these risks,

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and they didn't take adequate steps to do it.

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And the company says, wait a second.

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Um, no one knew about these risks,

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and we followed the rules.

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Um, and the end of the scenario says

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that Joe has some insurance, but he's underinsured.

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His, his insurance isn't gonna cover all his bills.

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So that's the common scenario that everybody gets.

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Now, we get to the experiment part.

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So some people are just given the prompt,

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and then other people are put into treatment groups

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that involve different choice of remedies.

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So one group is told that Joe lumps it,

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that he stoically, does nothing and lumps his injury.

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Uh, another group is says, you know what?

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He goes to his family, he doesn't, go

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to the government or the courts.

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He goes, gets help from his family.

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And then the last three scenarios

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involve the hiring of a lawyer.

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So one is he hires a lawyer to bargain in the shadow

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of the law and send a demand letter.

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The second is that he hires a lawyer

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to make a government claim.

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And then the third is he hires a lawyer to make a lawsuit.

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Now, I know that there's some, geeks out there

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who may say, wait a second, Barnes.

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Um, this is an injury.

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This is a workers' compensation claim.

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But the fact is that in a lot of states,

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including California, which has the largest workers'

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compensation program, if a worker thinks

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that the employer concealed risks

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and that concealment made them worse off,

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they can not only fi file a workers' compensation claim,

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a government claim, they can also sue their employer.

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So under this scenario,

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Joe has all these choices as a matter of law.

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And in fact, in United States,

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like California workers have availed themselves

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of all of these

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Decisions. So we think that this

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scenario,

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while it's a hypothetical kind of maps onto both the law

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and practice, at least in a state like California.

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So once we, we, we, you know, we trade these groups,

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we randomly assign people, then we ask him questions about,

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Hey, what's your perception of Joe's injury?

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Uh, what's your perception of his level of fault,

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his degree of blame?

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And then finally, what are your attitudes towards him?

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Do you think he's honest?

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Do you think he is trustworthy, et cetera.

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And we create a scale with respect to attitudes towards Joe.

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Um, so the first level is we wanted to make sure

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that we were in a scenario where people thought

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that Joe had a legitimate claim,

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because it wouldn't be interesting at all.

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I mean, I would hope that people would turn against people

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who abuse the courts and have bogus claims.

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So the first level of findings is at this level

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of perceived injury and fault.

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And what we find is that people think that Joe is hurt,

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that he has a, a, a sort of a significant injury

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and that he's not at fault.

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They assign the vast majority of blame to the company.

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And these levels of injury

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and fault are the same across all the groups.

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So that whether you're in the control group

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or the lumping a group or the family help group,

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they have this perception that Joe is hurt and not at fault.

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So at the, at the bottom of this project is a sense

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of this is a legitimate claim.

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So then the question is, okay, does the medium matter?

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I mean, if you're an economist, you say,

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what difference does it make if you get a $10,000 from,

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a negotiation or a lawsuit

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or a government claim or a family member?

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10,000 bucks is 10,000 bucks.

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But what we find is that the medium really does matter,

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that our participants had a significantly,

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more negative view of Joe when he decided

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to sue versus all of these other remedies.

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And the thing that was particularly interesting to me

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as a former lawyer was

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that these weren't anti hiring a lawyer remedy,

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because in three of our options, Joe hires a lawyer.

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So he hires a lawyer to send a demand letter,

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he hires a lawyer to, you know,

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file this government claim.

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He hires a lawyer to file a lawsuit,

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and yet the attitudes towards the demand letter

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and the government claim much, much higher, statistically,

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significantly higher view

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of Joe than in the lawsuit, entity.

08:16.265 --> 08:18.965
So there is this idea that people are turning against those

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who turn to the courts.

08:20.915 --> 08:22.965
Yeah, that mechanisms is always fair.

08:22.965 --> 08:26.165
And it's sort of the dreaded question with respect to,

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you know, those who, you know, we're just finding

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sort of associations.

08:28.905 --> 08:32.525
So the underlying theory of this broader project is

08:32.525 --> 08:35.875
that all these negative, media stories,

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about litigants, the hot coffee case most recently,

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there's a lot of coverage over someone

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getting a wedgie in the water slide.

08:42.455 --> 08:45.755
Um, that these negative tropes that are called torque tails

08:46.335 --> 08:48.755
are priming people to have these negative attitudes.

08:49.295 --> 08:51.875
Now, in this, study, we don't directly test

08:51.875 --> 08:54.755
that mechanism, but we do explore it. And what

08:54.755 --> 08:59.005
We do is we say one of the common tropes of the tort tail,

08:59.465 --> 09:02.445
narrative is that, Americans are rushing

09:02.445 --> 09:05.045
to the courthouse that they're trying to cash in their,

09:05.055 --> 09:07.925
their, litigation lottery tickets.

09:08.615 --> 09:10.715
And so one of the things we do with our lawsuit groups is a

09:10.715 --> 09:14.865
secondary analysis is we change the,

09:15.005 --> 09:16.305
we give people more information

09:16.305 --> 09:17.585
that challenges that assumption.

09:17.965 --> 09:20.265
It says, you know what, Joe doesn't rush to the court.

09:20.615 --> 09:22.465
Instead, he tries these other remedies.

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First, he exhausts the remedies

09:24.845 --> 09:26.145
before he turns to the court.

09:26.765 --> 09:29.465
Now, some people would say, look, Barnes, if you tell me

09:29.465 --> 09:30.825
that your family said no,

09:31.525 --> 09:33.265
the negotiations turned up nothing.

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The government claim didn't work, you might think

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that the claim is a lousy claim.

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Instead, what we find is that the more remedies you exhaust,

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the more justifiable the lawsuit is seen.

09:46.595 --> 09:49.415
So we think this is suggestive of this idea

09:49.415 --> 09:52.295
that the underlying mechanisms are these stories,

09:52.515 --> 09:55.015
and that's resonant with this broader literature,

09:55.015 --> 09:57.655
that stories are incredibly important in politics,

09:57.725 --> 09:59.295
they're important in public policy,

09:59.295 --> 10:00.575
they're important in elections.

10:00.875 --> 10:03.335
And I think what we're seeing is the power of stories

10:03.885 --> 10:05.295
with respect to the courts

10:05.435 --> 10:07.655
and this decision, to litigate.

10:07.875 --> 10:09.855
The other thing is that, you know, I mean, as someone

10:09.855 --> 10:12.335
who studies public policy, I care about sort

10:12.335 --> 10:13.455
of the practical implications.

10:14.195 --> 10:18.615
Uh, and so for me, you know, part of this project was

10:18.955 --> 10:21.455
to try to help lawyers who are representing people

10:21.455 --> 10:24.415
with legitimate claims to navigate a world in which

10:24.955 --> 10:27.935
we rely on litigation a lot, in part

10:27.935 --> 10:30.735
because congress often can't address these problems.

10:31.435 --> 10:33.335
At the same time, you're fighting this kind of hostile

10:34.175 --> 10:35.415
cultural environment.

10:35.635 --> 10:38.415
How can you navigate that, as an advocate

10:38.415 --> 10:39.655
for people with legitimate claims?

10:39.755 --> 10:43.775
And part of what we say, based on our findings is

10:43.775 --> 10:44.895
that even if your,

10:45.985 --> 10:49.435
your client claimant has a really good claim, you should

10:49.975 --> 10:51.355
pursue these other pathways

10:51.615 --> 10:53.595
before you ascend the stairs to the courthouse.

10:54.135 --> 10:56.595
And if you do that, you're not only gonna have a better

10:56.595 --> 10:57.995
chance of winning in the courts of law,

10:58.215 --> 10:59.235
but you're gonna have a better chance

10:59.235 --> 11:00.475
of winning in the court of public opinion.

11:00.995 --> 11:01.115
I.

00:00 - You know, litigation is everywhere. it's in our boardrooms, it's in our bedrooms, it's in our churches, schools, parks. it even, decides the odd presidential election. And just to give, one number to this phenomenon, Americans reportedly filed 600,000, personal injury

00:18 - or tort suits every year in state court. So that, averages out to a little more than one suit a minute, 24 hours a day, 365 days a year. So it's a lot of litigation, and it's not surprising that there's been, a lot of criticism with respect to our reliance on litigation ranging from academics who talk about its cost and unpredictability and inefficiency to conservatives that talk about litigation

00:43 - as a sign of social decline. And of course, all these, high profile negative media accounts of litigation like the infamous, McDonald's high coffee case. so, in this paper, we sort of, the background is sort of thinking about, about that backdrop and those criticisms matter. They matter both inside and outside the courtroom. So if there's this negative reflexive reaction,

01:08 - to litigants, then it may be that people, even people with, meritorious claims, might have a hard time, getting relief in court. it also may set the stage for, the types of reforms that are aimed at blocking access to the courts, as opposed to trying to tamp down frivolous litigation like damage caps, which, basically try to discourage all litigation, by limiting the amount of recovery and successful ones. So with that background, we, we sort of asked two questions.

01:39 - So the first question, as you said, as the paper's titled, do People Turn, against the Courts even when they have, meritorious claims? And then the second question, which is, well, if so, are these, attitudes fixed or can we shift them? and those are the questions that that frame the project. And I should add that this paper is a down pro, down payment on a broader project where we look at lots of different policy areas and we find very similar results. A lot of the literature focuses on slightly different

02:08 - questions when it comes to backlash. So there's a broad literature that talks about, the relative ability of the Supreme Court and say, legislatures or referendums to, give an impro imprimatur of legitimacy. So that's, you know, sort of related to this question of institutional choice, but it has to do with, with policy. there's some literature that talks about how individual decisions

02:36 - can turn people against individual groups of claimants. So there's a large literature on sort of marriage equality. What distinguishes our work is that we're looking at the decision to litigate itself just as the choice of remedy trigger a negative reaction. And that part is new, in terms of the scholarship of thinking about the, so what of institutional choice. One of the things that is really difficult about doing this kind of research is how can we zero in on that choice of remedy the decision to go to the courts

03:06 - or government program or elsewhere? And that's really tough because there's so many things that can affect people's attitudes towards claimants, their age, their race, their ideology, their affective response to the underlying injury scenario. So we decided to do a survey experiment. No, no method is perfect, but what's nice about it is in a survey experiment, we can give all our participants the same injury scenario, and then we can randomly assign the choice of remedy.

03:35 - And that allows us to compare across the groups the average response to the underlying claimant. And that gives us some leverage. Now, the trade-off is that you worry about external validity. Is this just a product of the individual experiment? And that's why when we mentioned, replicating these findings in other policy areas is, is so important. But, so the basic idea is to try

03:57 - to randomize this, choice. So maybe a few more details. and unfortunately the devils are, are in, the details. So the, the common scenario is we start with a man named Joe, and Joe's a worker. He's been working a company for a long time, and he's sick, and he gets sick from, chemicals that he used at work. And Joe says, you know, the, the company should have warned me about these risks,

04:21 - and they didn't take adequate steps to do it. And the company says, wait a second. no one knew about these risks, and we followed the rules. and the end of the scenario says that Joe has some insurance, but he's underinsured. His, his insurance isn't gonna cover all his bills. So that's the common scenario that everybody gets. Now, we get to the experiment part. So some people are just given the prompt,

04:43 - and then other people are put into treatment groups that involve different choice of remedies. So one group is told that Joe lumps it, that he stoically, does nothing and lumps his injury. another group is says, you know what? He goes to his family, he doesn't, go to the government or the courts. He goes, gets help from his family. And then the last three scenarios involve the hiring of a lawyer.

05:05 - So one is he hires a lawyer to bargain in the shadow of the law and send a demand letter. The second is that he hires a lawyer to make a government claim. And then the third is he hires a lawyer to make a lawsuit. Now, I know that there's some, geeks out there who may say, wait a second, Barnes. this is an injury. This is a workers' compensation claim. But the fact is that in a lot of states,

05:28 - including California, which has the largest workers' compensation program, if a worker thinks that the employer concealed risks and that concealment made them worse off, they can not only fi file a workers' compensation claim, a government claim, they can also sue their employer. So under this scenario, Joe has all these choices as a matter of law. And in fact, in United States, like California workers have availed themselves

05:55 - of all of these Decisions. So we think that this scenario, while it's a hypothetical kind of maps onto both the law and practice, at least in a state like California. So once we, we, we, you know, we trade these groups, we randomly assign people, then we ask him questions about, Hey, what's your perception of Joe's injury? what's your perception of his level of fault, his degree of blame?

06:17 - And then finally, what are your attitudes towards him? Do you think he's honest? Do you think he is trustworthy, et cetera. And we create a scale with respect to attitudes towards Joe. so the first level is we wanted to make sure that we were in a scenario where people thought that Joe had a legitimate claim, because it wouldn't be interesting at all. I mean, I would hope that people would turn against people who abuse the courts and have bogus claims.

06:41 - So the first level of findings is at this level of perceived injury and fault. And what we find is that people think that Joe is hurt, that he has a, a, a sort of a significant injury and that he's not at fault. They assign the vast majority of blame to the company. And these levels of injury and fault are the same across all the groups. So that whether you're in the control group or the lumping a group or the family help group,

07:08 - they have this perception that Joe is hurt and not at fault. So at the, at the bottom of this project is a sense of this is a legitimate claim. So then the question is, okay, does the medium matter? I mean, if you're an economist, you say, what difference does it make if you get a $10,000 from, a negotiation or a lawsuit or a government claim or a family member? 10,000 bucks is 10,000 bucks. But what we find is that the medium really does matter,

07:37 - that our participants had a significantly, more negative view of Joe when he decided to sue versus all of these other remedies. And the thing that was particularly interesting to me as a former lawyer was that these weren't anti hiring a lawyer remedy, because in three of our options, Joe hires a lawyer. So he hires a lawyer to send a demand letter, he hires a lawyer to, you know, file this government claim.

08:02 - He hires a lawyer to file a lawsuit, and yet the attitudes towards the demand letter and the government claim much, much higher, statistically, significantly higher view of Joe than in the lawsuit, entity. So there is this idea that people are turning against those who turn to the courts. Yeah, that mechanisms is always fair. And it's sort of the dreaded question with respect to, you know, those who, you know, we're just finding

08:27 - sort of associations. So the underlying theory of this broader project is that all these negative, media stories, about litigants, the hot coffee case most recently, there's a lot of coverage over someone getting a wedgie in the water slide. that these negative tropes that are called torque tails are priming people to have these negative attitudes. Now, in this, study, we don't directly test that mechanism, but we do explore it. And what

08:54 - We do is we say one of the common tropes of the tort tail, narrative is that, Americans are rushing to the courthouse that they're trying to cash in their, their, litigation lottery tickets. And so one of the things we do with our lawsuit groups is a secondary analysis is we change the, we give people more information that challenges that assumption. It says, you know what, Joe doesn't rush to the court. Instead, he tries these other remedies.

09:22 - First, he exhausts the remedies before he turns to the court. Now, some people would say, look, Barnes, if you tell me that your family said no, the negotiations turned up nothing. The government claim didn't work, you might think that the claim is a lousy claim. Instead, what we find is that the more remedies you exhaust, the more justifiable the lawsuit is seen. So we think this is suggestive of this idea

09:49 - that the underlying mechanisms are these stories, and that's resonant with this broader literature, that stories are incredibly important in politics, they're important in public policy, they're important in elections. And I think what we're seeing is the power of stories with respect to the courts and this decision, to litigate. The other thing is that, you know, I mean, as someone who studies public policy, I care about sort

10:12 - of the practical implications. and so for me, you know, part of this project was to try to help lawyers who are representing people with legitimate claims to navigate a world in which we rely on litigation a lot, in part because congress often can't address these problems. At the same time, you're fighting this kind of hostile cultural environment. How can you navigate that, as an advocate for people with legitimate claims?

10:39 - And part of what we say, based on our findings is that even if your, your client claimant has a really good claim, you should pursue these other pathways before you ascend the stairs to the courthouse. And if you do that, you're not only gonna have a better chance of winning in the courts of law, but you're gonna have a better chance of winning in the court of public opinion. I.

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