You know where a great place to try arguments is? In court. But they’ve spent five years fighting against her attempts to have her day there. It seems odd that they wouldn’t want to explain their side in the courtroom, since they’re willing to in the media.
—Al Franken, in Dahlia Lithwick, “Open the Shut Case”
When Jamie Leigh Jones signed a contract with Halliburton in 2005, she didn’t know she was signing away her right to access to the civil justice system. Instead, she trusted the company, and as a 19-year-old computer technician, she says, “My goal was just to work there forever.” Just four days after she arrived in Baghdad, however, Jones was drugged and gang-raped by male coworkers. Incredibly, there was more horror to come: the rape kit sent to Halliburton was lost, she was locked in a storage container for days, with armed guards outside. And when Jones was rescued by federal agents, she came home to find that she had no legal recourse, as the fine print in her contract included a binding arbitration clause.
Since that time, Jones has pursued criminal and civil remedies, and learned that none is allowed, according to her contract. She’s testified before congressional committees, inspired Senator Al Franken’s “anti-rape” amendment, and started Jamie Leigh’s Foundation, dedicated to “helping United States citizens and legal residents who are victims of crime while working abroad for government contractors and subcontractors.”
And now she’s in Hot Coffee. Premiering on HBO 27 June, former lawyer Susan Saladoff’s documentary looks at the many ways that corporations work to limit individuals’ access to the civil justice system. The film takes as its first example the infamous “hot coffee” case, wherein 79-year-old Stella Liebeck sued McDonald’s when she suffered third degree burns from coffee spilled in her lap, and had to undergo extensive skin graft surgery. Though an Albuquerque jury awarded her over $2 million in compensatory and punitive damages, she and the case were soon fodder for editorials, cartoons, and late-night monologues, as “The media and corporate American turned an advantage into a disadvantage.”
The film argues that such attacks on the hot coffee case were orchestrated, as corporations launched public relations campaigns to denigrate “frivolous lawsuits” and “jackpot justice.” (It notes that McDonald’s, along with other corporate representatives, “declined to be interviewed for the film.”) These campaigns led to public support for “tort reform” (several people-on-the-street interviews here suggest that few know what “tort” means), and thus, a second corporate strategy, the institution of caps on damages.
Hot Coffee‘s own strategy is persistent, compelling, and sometimes scattershot (and too often accompanied by a distracting piano soundtrack). A brief interview with linguist George Lakoff indicts the public relations campaigns’ verbal manipulations (“When that language is repeated over and over again, the brain changes”) and the Bush Administration comes under particular fire for its ongoing support of “tort reform.” (Victor Schwartz, General Counsel for the American Tort Reform Association, notes that Ralph Nader calls it “tort deform,” apparently a joke a Nader’s expense, though the film uses it otherwise.) The film underlines the efforts of the president and Karl Rove (a “paid political intelligence operative” for Philip Morris from 1991 to 1996) to legislate against “junk lawsuits.”
As important as such legislation may be, the film notes as well the effects of corporate-friendly judges (including the Supreme Court’s 2010 ruling on Citizens United v. Federal Election Commission). John Grisham reveals that his novel on the subject, The Appeal, is based on the experiences of his friend, former Mississippi Supreme Court justice Oliver Diaz, the victim of an expensive attack ads campaign funded by the U.S. Chamber of Commerce (which is, the film underlines, not a government agency, but the nation’s largest lobbying group for corporations). As Grisham points out, in such contests, the side with the most money tends to win. And corporate-friendly judges tend to ignore juries’ assessments in favor of business interests.
The multi-pronged effort to keep consumers out of the courtroom finds something like an apotheosis in mandatory arbitration clauses. Jones’ case against KBR/Halliburton offers an extreme example of the problem. (Her case finally made it to a Houston courtroom, on 21 June.) But Hot Coffee reveals that such clauses are common in contracts most all of us have signed, with cellphone companies, cable companies, credit card companies, and car dealerships, among other entities. When signing these contracts, you agree to give up the right to seek redress in court if you are wronged, and instead have disputes decided by arbiters hired by the companies. Unsurprisingly, such arbitration favors the companies.
Hot Coffee argues that all these manipulations of the civil justice system have increasingly closed off opportunities for individuals to hold companies accountable. “Ultimately,” says lawyer Ken Canfield, “It comes down to whether you trust juries.” The judicial branch was conceived as a protection for consumers. If the legislative and executive branches have long been influenced by corporate interests—through lobbying and campaign financing—the courts remained relatively different, offering citizens a forum to right wrongs. According to Joan Claybrook, President of Public Citizen from 1982-2009, in the judicial branch, “You have just as much chance of winning as General Motors does. There’s no other part of government where that’s possible.”
That was then. Now, the so-called playing field doesn’t look very level at all.