John Grisham’s Law
The overall cost of litigation in the United States has now reached the vertiginous level of 2 percent of the nation’s gross domestic product, around $300 billion. That is more than the legal bills of all other nations combined. An intellectual revolution that began in the 1940s and 1950s has bequeathed to us our present-day legal system—hyperactive, expansionist, and ruinously expensive. It transformed courts into arenas for social change, and then filtered down to the more homely precincts in which civil actions are argued. Previously obscure disciplines in the realm of civil litigation (tort law, environmental law, occupational-safety law) became the means whereby judges and juries were urged successfully by crusading lawyers to use their power over the pocketbooks of governments, corporations, and well-insured med-ical professionals to “teach a lesson” to those who had supposedly made less powerful and less protected people suffer.
As a result, there is no longer a meaningful disincentive to sue. The growth of contingent-fee representation (in which lawyers do not take money up front but rather a large cut of the financial settlement) and the absence of a “loser pays” rule (which requires a plaintiff whose suit is considered without merit to bear the costs of all litigation on both sides) have seen to that. At the same time, lucrative awards granted by juries in the form of punitive damages have made litigation a quasi-entrepreneurial business for ambitious lawyers.
One might have expected the costs incurred by the litigation revolution to have stirred a backlash, and they have, somewhat—but that backlash has had very little effect. Reformist efforts to bring more balance have failed in state after state and at the federal level as well, owing in part to the effective lobbying of the legal profession.
But lobbying alone cannot explain the failure. The culture has played a role as well. The romanticized, glamorized depiction of law in the popular culture has acted as a bulwark against change—and has helped nudge jurors and judges toward creative legal theories and colossally large awards. And when it comes to popular culture and the law, there is no more influential figure than John Grisham, the Mississippi attorney who almost single-handedly created the pop literary genre known as the “legal thriller.”
Grisham does much more than drive publishing decisions. The real question to ask, after nearly two decades of his ubiquitous presence on the bestseller lists and in the multiplexes, is whether the Grisham “brand” itself has had a measurable effect on the way civil litigation is conducted in the United States. The term “tainting the jury pool” refers to the way in which the media coverage of an event can exert influence on the jurors who are called upon to adjudicate a case in so corrupting a fashion that a dispassionate verdict is made impossible. Has Grisham’s success effectively tainted the American jury pool?
Grisham Law is a dark and devious world in which corporations are filled with expert conspirators, not banal paper-pushers. They blackmail, cover up, rig settlements, manipulate juries, and demonstrate stealth to a degree that would put the CIA to shame. It is a world in which the regulatory apparatus of the federal government is virtually nonexistent. Likewise, the in-house attorneys who populate nearly every mid-sized and large company in America (and who, in reality, regularly restrain, cajole, and shape corporate decision-making) are generally absent, or else serve as entirely passive cogs in the managerial conspiracy of evil. As a result, upper-echelon villains run amok, seemingly oblivious to litigation risks that shape the decisions of corporate America as it must function in the real world.
Their plots are revealed in helpful memos buried somewhere deep in the bowels of the corporate bureaucracy that need only be uncovered by industrious good-guy lawyers to blow the case wide open. Elaborate plots abound, motives are invariably malign, and the results are disastrous for the poor, the weak, and the innocent.
In Grisham Law, “causation”— the fundamental link in tort law between the wrongful act and the injury—is usually a given. We know from the mere presence of the evil executive and the woeful plaintiff that the corporation certainly must have caused the harm. We usually know that a chemical produced by the corporation was the sole reason the plaintiff—indeed, a whole town—became ill, as in The Appeal (2008). After all, we know about the defendant’s facility: “Like a prison, where bad things happened, the plant shut out the world and kept its secrets buried within.”
Only in Grisham Law do you get silent confessions from the corporate villains that (as one explains in The Appeal) they “built a pesticide plant in Podunk, Mississippi, because the land and the labor were dirt cheap, then we spent the next thirty years dumping chemicals and waste into the ground and into the rivers, quite illegally of course, and we contaminated the drinking water until it tasted like spoiled milk, which as bad as it was, wasn’t the worst part, because then people started dying of leukemia.”
The lawyers these malefactors engage to defend their indefensible actions are shamefully complicit in the scheme, contriving to make jurors into hapless puppets along with the injured plaintiff. The entire firm in The Firm is a Mafia front. Scully & Pershing, which employs the title character of his latest book, The Associate, is a sweatshop (“lousy accommodations, brutal hours, sadistic bosses, unbearable pressure”) that phonies up its billings because, as one partner tells our hero, “we are entitled.” And why not? After all, the defense contractor for which Scully & Pershing is working has “a rotten history of making cheap products, screwing the government and taxpayers, dumping dirty weapons around the world, killing innocent people, promoting war, and propping up nasty little dictators, all in an effort to increase the bottom line and have something to show the shareholders.”
In The Appeal, a slimy defense lawyer keeps the incriminating evidence away from the other side by “luck and flagrant disregard for the rules of civil procedure.” And speaking of flagrant disregard, the plot of The Runaway Jury (1996) hinges on Rankin Fitch, a lawyer whose great skill is in manipulating and even buying off jury members, in this case for an unspeakable gun manufacturer. These bad barristers are users of law for malignant ends, and they are all cut from the same cloth—cynical, devious, power-hungry, and dedicated to foiling the good and innocent. Moreover, they enjoy unlimited funds, superb technology, and an endless supply of shadowy functionaries. Naturally, they have nothing but endless contempt for juries and their members—“ignorant people,” as the evildoers in The Appeal repeat ad nauseam.
Readers and moviegoers are taught implicitly to make the connection between powerful actor and injured plaintiff, without a question ever being raised about whether the former was actually responsible for the latter’s plight. And the trickier and more difficult questions involved in determining the legal (as opposed to emotional) threshold of causation are brushed aside.
Grisham’s plaintiffs are, by contrast, a noble lot. They may be down on their luck and rough around the edges (trailer-park residents, single moms, young lawyers from small towns, and the unemployed are all recurring characters in the Grisham repertory company), but that only makes them more endearing. Plaintiffs are never savvy operators; they don’t have a relative or boyfriend with dreams of a big score coaxing them to sue. And their lawyers are almost never shysters or con artists, but rather shrewd, hard-working, and as carved out of the salt of the earth as their clients.
Even in Grisham’s sole indictment of the avaricious plaintiff bar, The King of Torts (2003), the basic structure—evil pharmaceutical manufacturers on one side and hapless victims of a drug that causes cancer patients to go on shooting sprees on the other—remains intact. The devious pharmaceutical conglomerate somehow evaded all manner of FDA regulation by “smuggling” drugs to federal rehab centers. (And you just have to take Grisham’s word that the killers who took the drug—Tarvan—lacked free will: “Tarvan makes them kill. Plain and simple.”) It is only because they hatched the nefarious operation in “human laboratories overseas”—“far away from the American tort system”—that their evil can be disguised.
The King of Torts reports that the worst fear of the evil corporation is a jury (and a plaintiff’s lawyer):
The case would never go to trial; no jury would ever hear it. Whoever made Tarvan would spend a helluva lot more than thirty-four million to bury the truth. And they would hire all manner of thugs to break legs and steal documents and wire phones and burn offices, whatever it took to keep their secret away from those twelve angry faces.
There may be greedy plaintiffs’ attorneys out there, jet-setting about the country to carve up verdicts, but no matter how bad they might be, the corporations they come up against are nothing but felonious and the plaintiffs entirely deserving. After all, it is for the cause of justice that the trial lawyers rack up their big fees, as one explains:
You catch the greedy bastards putting out bad products that harm innocent people and you, the lawyer, get to punish them. It’s what I live for. . . . People think I’m greedy because I could quit and go live on a beach for the rest of my life. Boring! I’d rather work a hundred hours a week trying to catch the big crooks.
And if the plaintiffs’ lawyers go awry, there will always be another lawyer who can sue them on behalf of the abused clients, who remain untouched by corrupting greed and ever in need of someone to look after their interests.
Grisham Law was preceded by L.A. Law, the hit television series that was the first work of popular culture to showcase creative theories of litigation in ways that may have had a direct impact on juries (remember the multimillion-dollar verdict for the woman who spilled a hot cup of McDonald’s coffee onto her lap?). Post Grisham shows Ally McBeal, Boston Legal, and The Practice have also offered a full array of venial corporate defendants—power-line operators, tobacco giants, gun manufacturers, and the like
They too have contributed to the sense that any strategem is permissible so long as the lawyer is creative enough. And they all portray law as a profoundly desirable career, exciting, lucrative, and above all, drenched in sex.
But it is Grisham who had to come along to supply the underlying morality. The plaintiffs are justified in their creativity, and the lawyers entitled to a bit of scientific license, because corporations are monstrous, plaintiffs are deserving, and causation is a given.
All this works for plaintiffs in a courtroom environment in which their lawyers can question and weed out jurors who might be more critical or analytical than the average Grisham reader. A competent jury-selection expert’s list of finely honed questions is precisely designed to eliminate cynics and skeptics. Often what remains is a jury that may be even more susceptible to histrionic argumentation and more attuned to pop culture. Rather than the model of a representative cross section of the public, the average jury, as the law professor James Langbein has said, comprises “people who have been picked over by trial lawyers.”
Consider the trial lawyer Mark Lanier, who wrung a $115- million jury verdict against Merck with very slight evidence of causation between its drug Vioxx and the plaintiff’s death. His jury appeal included this tidbit: “I can’t promise Oprah . . . [but] there are going to be a lot of people who’ll want to know how you had the courage to do it.” After winning his case, Lanier exulted: “I love when a widow from a small town can stand up against one of the largest companies in the entire world, actually get access to their documents and show a jury how they killed her husband.” The line between Grisham Law and the real thing is sometimes rather blurry.
Walter K. Olson, perhaps the nation’s foremost student of what he calls “overlawyered America,” points out that demagogic lawyers are nothing new: “Mark Lanier’s tool box,” Olson says, “is not as new a tool kit as you may think.” But Lanier certainly has taken advantage of the anti-business sentiment that Grisham and others have popularized, translating it and channeling it into enormous verdicts that express carefully cultivated jury anger.
And the mutually reinforcing cycle of pro-plaintiff pop culture and large verdicts, at the very least, has an impact on the amount of monetary damages juries award. Jim Copland of the Manhattan Institute explains that publicity surrounding “outlier verdicts” and pop legal culture that glorifies lawyers who win those outsized awards at the very least may influence juries to inflate verdicts. Mammoth verdicts create a new floor of what is reasonable; the outliers soon become the norm.
There are few cultural counterweights to Grisham Law. Occasionally, a news story breaks that offers a portrait of shocking conduct on the part of the tort bar, as when Grisham’s friend Dickie Scruggs, who had already earned more than a billion dollars as a lawyer, was sent to jail for attempting to bribe a juror. But these aren’t the stuff of novels, let alone a series of novels.
The monumental advances in medicine, manufacturing, consumer technology, and science largely made possible through private industry don’t become the focal point of TV shows, movies, and best-selling novels. Tort reformers and a small band of intellectuals like Olson and media contrarians like John Stossel have made strides in educating the public about the social and economic costs attributable to our hyper-litigiousness, but they are badly outnumbered and outgunned by Grisham and the cadre of pro-plaintiff novelists and filmmakers whose audience is vast and growing.
At the root of the tort system is the notion that the law is a great equalizer between the powerful and the weak, and ultimately a source of justice. But justice depends on an unbiased eye toward the facts and a refusal to be blinded by emotion. So corporate lawyers in voir dire might do well to throw away their boilerplate list of questions (Will you treat a rich company fairly?) and focus on one basic query when selecting their jury: How many John Grisham novels have you read?
1He has also published four novels that do not have a legal theme.