Over the weekend, I saw the ad embedded below while watching the French Open. While the ad is an intentional attempt at humor, it was a part that I presume was not meant to be funny that put the biggest smirk on my face and got me thinking about the widespread tendency that people have of overestimating the risk of being sued.
The ad opens with a shot of an empty intersection and a narrator stating, “Let’s say you had an accident.” As the narrator begins speaking, a DeLorean meant to look like the time machine from “Back to the Future” comes sliding into the picture on its roof while flames shoot out from the wreckage and the sounds of glass breaking and metal crumpling can be heard in the background. If you saw an accident like this happen live, you would probably need counseling for post traumatic stress disorder to deal with the psychological damage you would likely suffer from having witnessed something so awful. But just in case it isn’t clear to you that sliding across an intersection on the roof of your car is something you should try to avoid, the words “do not attempt” helpfully appear at the bottom of the screen as the car makes its catastrophic entrance.
Maybe your initial reaction, like mine, is to smirk. Oh, those silly lawyers and their ridiculous lawsuits. Gotta put a warning label on everything or you’ll get sued by some gold-digging idiot claiming not to have known that his scissors were sharp or that his stove top was hot.
A deliberate effort to discredit the jury system
Upon further reflection, however, this ad strikes me as part of something more insidious — a decades-long, calculated effort by extremely powerful interests to make it seem like something is wrong with people who exercise their 7th amendment right to a jury trial to recover compensation for injuries caused to them by others. That way, when those powerful interests run into those people in court — the one place where an average citizen can be on the same footing as a GE, or a Toyota, or a Bayer Pharmaceutical — the jury is already predisposed to believing that the plaintiff is an overentitled whiner, trying to hold some innocent party accountable for their own stupidity.
If you’re an insurer like Esurance, the company behind the ad at issue, your motivation for discouraging lawsuits, and keeping your customers from being sued, is obvious. At the same time, you want people to think that their chance of being sued is astronomical, practically an inevitability, so that they’ll buy more insurance. Perhaps not surprisingly then, this ad does a perfect job of sending both messages simultaneously: that lawsuits are silly… and you’re definitely going to be dragged into one. Probably by one of those people greedy enough to sue Esurance for planting that crazy car crash idea in their heads.
The reality is that the chance that Esurance is going to be sued by someone claiming to have been motivated by this ad to wreck his car is zero. None. Nada. Not any. The “do not attempt” warning is patently, objectively, completely absurd. It is inconceivable to me that anyone at Esurance believes that briefly flashing that warning across the bottom of the screen reduces some real risk that it was facing by putting this ad out there. I suppose I’d be the last to know if I was one, but I don’t think you have to be a conspiracy theorist to think there’s something else besides risk mitigation behind that message.
Doctors overestimating the risk of being sued
The impact of this kind of messaging can be seen in the industry most often claiming to be the victim of unjustified lawsuits — doctors. A somewhat recent study in HealthAffairs magazine described its findings as follows (emphasis mine):
Physicians contend that the threat of malpractice lawsuits forces them to practice defensive medicine, which in turn raises the cost of health care. This argument underlies efforts to change malpractice laws through legislative tort reform. We evaluated physicians’ perceptions about malpractice claims in states where more objective indicators of malpractice risk, such as malpractice premiums, varied considerably. We found high levels of malpractice concern among both generalists and specialists in states where objective measures of malpractice risk were low. We also found relatively modest differences in physicians’ concerns across states with and without common tort reforms. These results suggest that many policies aimed at controlling malpractice costs may have a limited effect on physicians’ malpractice concerns.
What this means is that the defensive medicine that you hear so much about, and which is supposedly sinking our healthcare system in a morass of unnecessary costs, may be the result not of a crush of frivolous lawsuits, but of an irrational fear by doctors that they’re under constant threat of lawsuit. In their defense, that irrational fear is almost certainly deliberately sowed in them by their insurers, whose interest in having someone else to blame for ever increasing malpractice rates is clear.
When I was more involved litigation, I would regularly get calls from potential clients who would start their conversations with me with adamant assurances that, “I’m not the type of person who files lawsuits, but…” The guilt that they felt just for inquiring into their rights was palpable. And these were people who had suffered life-threatening as a result of using products sold to them by companies that made billions of dollars every quarter, not exactly a situation that one would expect to come with such a predisposition to guilt attached.
These widespread feelings that most people appear to have towards litigation — reluctant to initiate it, but assuming that everyone else is suing and being sued all the time — have real world consequences. If you’re a small business owner, for instance, you want to make decisions about which markets to enter, which services to provide, and which insurance to purchase based on what your risks truly are, not on what they are rumored to be. Overestimating the risk of being sued can unnecessarily create paralysis in your thinking, increase your costs, and lead to other inefficiencies. Those inefficiencies are benefiting someone, but it isn’t you.