HBO premiered a documentary this week dealing with the American legal system, specifically the Civil Courts and tort reform. After watching the documentary, it’s somewhat difficult to review. Do you review it as a documentary? In which case, it slips in many ways. Do you review it as a hit piece? Designed by a Plaintiff’s Attorney, it very much screams, “I’m mad as hell and I’m not going to take this anymore!”
Ultimately, it isn’t really fair to review it as either. As a documentary, it walks and talks like a documentary, but the end result would be like if you developed the doc-Hoop Dreams from a reflective perspective that was designed to show the perils of kids who had dreamed of making it big in basketball. Rather than what it did, picking two talented youths and letting the documentary be taken to wherever they may roam. To label the documentary a hit-piece would also be a bit disingenuous. That does a dis-service to the stories told in the documentary.
But, in the end, this is laid out like a closing argument of one side of a case/issue. In this instance, that side is the side in favor of those who bring lawsuits. To be clear, that argument is laid out very well. And, it’s an effective documentary in the sense that, if public perception is that lawsuits are frivolous, let’s ram it home that there are very real needs for Civil verdicts. And that’s most definitely a discussion that should be had. Let’s take a look…
The documentary opens with the early-mid 1990s Hot Coffee McDonald’s case. The long and short of that: a woman spilled coffee on herself, sued McD’s, got paid.
Now, I present that case the way I did above intentionally. Because, that’s the way we know that case. By, we, I simply mean people who haven’t looked into the case, that just hear about the case in passing. The documentary starts out by letting us know that this initial impression leads to conclusions that frivolous lawsuits get brought…and that the McDonald’s case is not one of those frivolous lawsuits. But, if you’re expecting this documentary to delve into the case and really tell you what happened to the woman who burned herself, Stella Liebeck, you’re probably better served watching the Seinfeld episode where Kramer wanted to sue after trying to sneak coffee, via his pants, into a theatre.
They break out photographs of the burns. Which are undoubtedly brutal. They also definitely let you know that there was a legitimate injury here, in case that was your hangup on the case moving forward.
They cover the case for about 11 minutes and then it is time to move on. Save for one moment where the driver of the car states that the car had no cupholders, they didn’t do much of anything in the way of trying to present the other side of the story.
And, ultimately, that’s the trouble with Hot Coffee, your initial premise is that public perception doesn’t understand the verdict in one specific case…then you proceed to spend 90 minutes doing the same thing.
What does work for this documentary is that it’s laid out really, really well.
1. The opening, as mentioned is about the public misperception related to the McDonald’s case.
2. Second stage is to establish that the money damages sought in a lot of cases are legitimate economic needs, but, that these economic needs aren’t met because of caps on damages that can be recovered.
3. They attempt to show that the people pushing for change to the system do so for ulterior motives. And, when you’re at the point where you’re asking for a middle ground such as arbitration systems, they…
4. present the story of a woman raped while working for Halliburton in Iraq whose contract included a clause that she would need to have her matter decided only in front of an arbitrator decided by Halliburton.
Within the brief documentary world that Hot Coffee creates, this is very effective. Googlin’ around for mainstream newspaper reviews of the doc, you get a lot of positive response. Each of these transitions was purposeful and designed to take your mind where the developer of the documentary wanted to go. Does that make a great documentary? Michael Moore would most likely say, “absolutely.”
The second section comes about because even if folks have been moved towards the Plaintiffs direction after the Coffee case, there’s still the looming doubt that these damage awards are the right awards. We’re talking millions of dollars, and thus, why caps on damages have become a weapon of tort reform. Section Two gives us the story of a family awarded 5.6million dollars due to medical malpractice that left one of their twin sons with cerebral palsy.
The documentary lays out that they won 5million in damages based in economic need, not punitive damages. 600k in non-economic damages. This number was reduced to something below 2million by a damages cap that tort reform led to. The family says a couple times how the taxpayers now have to pay a lot for the medical treatment their son needs. We don’t really go further with that debate, or really, the facts of that case specifically.
As in, you feel bad emotionally for the family, but that’s what the documentary wants. I think one thing that you have to remember is that documentary comes from an attorney, but, then addresses jury awards like a non-attorney. A lot of the decisions by the juries here were presented as absolute fact. And, I guess that’s all well and good in terms of giving respect to the jurors, but, in a documentary coming from an attorney, it’s a bit silly. That particular jury found Stella Liebeck 20% at fault and 80% for McDonalds, to say that would end the debate on fault would be silly. And, at times it was presented that way.
As for the family in the second section, we focused more on what their damages were and how they were affected, rather than the medical malpractice involved. Doing so didn’t allow the viewer to engage on a deeper level. Again, that was the intent of the filmmaker, I’d imagine.
But, back to the point about whether this could be a great documentary. For someone like myself, a lawyer who does not delve too far into civil law at the moment, I really wanted a piece that had that deeper discussion. For someone like myself, it leaves me wanting more. For a lot of people, this likely had a positive emotional connection that will lead to them looking in to the issues. For someone already dug in on either side, it likely wouldn’t change anything.
And, really, they never answered what should be an essential question, are there frivolous lawsuits? Later in the documentary they point out some kind of state legislator who voted for a cap on damages…then realized, “oh, I didn’t want to cap damages for so-and-so, only frivolous cases.” Just saying that the coffee case wasn’t frivolous misses the point. Because it goes into the specifics of the case, while avoiding the broader issue.
Feel free to leave a comment with your thoughts on the documentary.
Aside from the law, there is some good stuff in the way of the “regular folks on the street!” camera segments. Where average Americans struggle with what the word “tort” means among other things. Hint: They thought it was a pastry. I like ’em best in the form of the Brown Sugar Cinnamon Pop-Torts.