ABSTRACT
What should lawyers do when confronted with inaccurate media coverage? This essay contends that the Model Rules of Professional Conduct should be read broadly to encourage lawyers and their professional organizations to challenge misleading media accounts vigorously. At least three reasons support an expansive reading of lawyers’ obligations to counter what scholars have called ‘tort tales’: dramatic, personalized accounts, like the infamous McDonald’s coffee case, which exaggerate the system’s cost, inefficiency, and arbitrariness. First, dramatic stories can have a disproportionate effect on perceptions, deeply shaping public understanding and affective response to the courts and tort system. Second, tort tales are not anomalous. Building on prior research and replicating earlier statistical analyses using new data, we show that tort tale coverage is part of a pattern of inaccurate, incomplete, and negative stories as compared to coverage of other modes of injury compensation, such as social insurance programs. Finally, recent public questioning of the legitimacy of the US Supreme Court reinforces the narrative of a broken system, lending urgency to the need for lawyers to defend the system and bolster its reputation. The call for lawyers to confront skewed media accounts of the tort system does not mean that they should ignore its weaknesses or abandon legislative reform efforts aimed at improving it. Instead, lawyers should work with media and existing organizations to promote more balanced coverage, and seek targeted reforms that reflect best evidence, not flawed press accounts.
Jeb Barnes and Parker Hevron, The Ethics of Tort Tales: What Should Lawyers Do When Media Gets It Wrong?, 58 Tulsa Law Review 1 (2023). Online 2 March 2023.
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