In Reference Haltom and McCannDistorting the Law: Politics, Media, and the Litigation Crisis (2004), William Haltom and Michael McCann argue that media attention to “tort tales” has bolstered conservative tort reform campaigns. In response, Reference KaganRobert Kagan (2006) raises the question of how pervasive the anti–tort law sentiment of tort tales is in American legal culture. This article joins the debate about the pervasiveness of these attitudes by examining whether, and to what extent, antitort or antilitigation sentiment is present in the narratives about law offered to the public by reality-based television judge shows. While Kagan analyzes the pervasiveness of tort tales by examining changes in tort law, we analyze the pervasiveness of tort tales as a representation of the legal system and its participants by probing the content of another popular-culture narrative about civil litigation.
For this article, we have coded 55.5 hours of the three most popular reality-based TV judge shows: Judge Judy, Judge Joe Brown, and The People's Court. We investigated how the TV courts treat the parties before them and the claims raised by the parties. We find that the dominant themes of popular antitort messages do not permeate these shows. In fact, these shows tell a strikingly different story about good guys and bad guys and the use of courts. The typical tort tale presents the civil legal system as regularly producing perverse outcomes and therefore properly being the subject of contempt and ridicule in the present and needing massive restructuring in the future. Our study finds, however, that the television courts largely treat plaintiffs' claims as legitimate, and the majority of plaintiffs are not showcased for their opportunistic gain at the expense of the targeted defendant and the complicit legal system. It is the majority of defendants who are identified as wrongdoers in these TV shows. We argue, however, that the particular dramatic qualities of TV judge shows limit their potential to serve as a counternarrative to tort tales because the dramatic force in the television cases comes from the retelling of the conflict between the parties and the judges' sermonizing during this retelling, rather than from the initial legal claim and its resolution. As a result, the courtroom and the law function as backgrounds for the conflict as opposed to the subject of the conflict itself.
Important shared traits between tort tales and television judge shows led us to compare these two narratives about law. Like Haltom and McCann's tort tales, TV judge shows are simplified narratives about the legal system. Both tort tales and TV judge shows employ short narratives that are dramatic and amenable to repetition, structural aspects that give the narratives power to spread and affect perceptions of legal culture. At the same time, we recognize two important differences between TV judge shows and tort tales. First, TV judge shows lack the large monetary claims and corporate defendants that are staples of the tort tale.
Second, as we will discuss later, there is also an important difference in the source of the dramatic appeal of the tort tale versus that of the television judge show: in tort tales the drama comes from how a claim is initially framed and ultimately resolved, whereas on TV judge shows, the drama comes from the court's interaction with the parties during argument, and the actual judgment in the case is beside the point. This leads to our finding of why TV judge shows do not function as a strong counternarrative to tort tales, even though the substantive message in these shows contradicts the tort tale message. A substantive counternarrative to tort tales depends upon audiences having and paying attention to information that specifically contradicts the greedy and inappropriate use of the courts seen in tort tales. TV judge shows, however, do not encourage the viewer to concentrate on their anti–tort tale elements because TV judge shows do not rely upon offending the audience's expectations of litigant and judicial roles for the sake of entertainment value.
In this article we seek to understand the dominant message offered by TV judge shows when these shows are considered as a narrative whole. Based on our research, we cannot make claims about the degree to which audience members endorse or reject this message. We suggest that further research might explore the ways in which audience members receive and attend to the message offered by TV judge shows.
The article begins by reviewing the nature and form of tort tales and comparing them to television judge shows. We then discuss our methods of collecting and analyzing a representative sample of TV judge programs and episodes. We conclude by sharing our analysis of these shows, in which we consider the legitimacy of claims presented, treatment of parties, and relationship of the TV cases to the state's legal system.
Tort Tales, TV Judge Shows, and the Prevalence of Antitort Narratives
William Haltom and Michael McCann's book Reference Haltom and McCannDistorting the Law: Politics, Media, and the Litigation Crisis (2004) is a compelling study of the process by which popular understandings of civil law are created via what the authors term “tort tales.” Tort tales are supposedly true, but they are actually exaggerated or otherwise distorted moralistic anecdotal narratives of greedy litigants and lawyers who successfully abuse the tort system. The story about Stella Liebeck, the woman who burns herself with hot McDonald's coffee and supposedly successfully sues the fast-food chain for millions of dollars, is a fairly common example of a tort tale (Reference Aks, Haltom and McCannAks et al. 1997).
Such stories enter the popular culture in various ways and spread virally through various retellings. In the example of the McDonald's coffee case, the story started in the news, made its way to the entertainment media, and finally spread to interpersonal storytelling—undergoing alterations with each phase and restatement. According to Haltom and McCann, anecdotes like this one are worth noting because they
convey serious meaning and exercise pervasive interpretive power in modern American society … [and] are but one dimension in a larger assault on rights entitlements, legal challenges to hierarchy, and democratic appeals to courts that have fueled the culture wars in American society over the past several decades. (Reference Haltom and McCann2004: 6)
In response to Haltom and McCann's argument that tort tales have allowed conservative tort reformers to dominate the social construction of tort law, Reference KaganRobert Kagan (2006) argues that changes in American tort law have been possible because particular aspects of the tort system had a negative reputation with the American public prior to and independent of tort reformers' efforts to circulate tort tales. Kagan cites such unpopular aspects as the “shift away from contributory negligence defenses and toward liability for more remote, corporate sources of harm; the elasticity of tort damage awards and settlements that go well beyond out-of-pocket losses; the frequency of recovery for weak claims; and frequent padding of claims; the system's failure to compensate many deserving people” (Reference KaganKagan 2006: 723). He then surveys the tort reforms that have been enacted since the mid-1980s and finds that they have been minimal—“nibbling at the edges” of the system (Reference KaganKagan 2006: 723). Kagan argues that successful tort reform has been limited because American legal culture actually supports “the core elements of the American tort regime” (Reference KaganKagan 2006: 712; emphasis in original), values identified by Reference FriedmanLawrence Friedman (1987) as part of a system of “total justice,” in which people expect government and courts to “prevent serious accidents, illnesses, and other sources of harm and to provide compensation to the injured” by holding corporations and businesses accountable for their actions (Reference KaganKagan 2006: 728).
The debate between Kagan and Haltom and McCann raises three questions—one about the pervasiveness of antitort narratives, another about the relationship between these narratives and popular attitudes, and a third about the consequences for the substance of American law. This article addresses the first of these three questions: the pervasiveness of antitort narratives. We do this by comparing the components of tort tales with the narratives about law offered by reality-based television judge shows. We ask if reality-based TV judge shows, as represented by a sampling of Judge Judy, Judge Joe Brown, and The People's Court, contribute to the creation and dissemination of antitort and antilitigation messages represented by tort tales, generate counternarratives about the civil law system, or do a little of each. We conclude that these shows present a view of the civil law system that deviates from the one offered by tort tales in terms of content and structure in order to entertain their particular audience.
Reference Haltom and McCannHaltom and McCann (2004) begin their exploration of tort tales by deconstructing the tales' form in order to explain their power. Tort tales are short, simple, scant on detail, and calibrated to create moral outrage about the misuse of the judicial system. As a result, they are accessible to a wide audience, adaptable, memorable, and easily retold, and easily spread. By simplifying the complexities of the tort system, exaggerating its problems, and sparking moral outrage, tort tales suggest seemingly uncomplicated structural solutions that easily garner support, such as an across-the-board cap on damages. Not surprisingly, the simplicity of tort tales also distorts the empirical reality of the tort system, its problems, and the desirability of possible solutions (Reference Haltom and McCannHaltom & McCann 2004: 52–72).
The distortion and power inherent in these narratives frustrate many scholars and lawyers. Tort tale opponents are hobbled by the complexity of their own arguments, which build from empirical data and present a more complete view of the tort system, but are too detailed to effectively counter the efficiency of tort tales. As a result, “tort reformers have focused their campaign on saturating the mass-mediated public space with their message, [creating] a commitment that has not been matched by their opponents” (Reference Haltom and McCannHaltom & McCann 2004: 27). Reference McCann, Haltom, Sarat and ScheingoldMcCann and Haltom (2005) even argue that the personal injury bar intentionally avoids taking its arguments public because it is better able to defend against tort reformers in the more private halls of power occupied by professional elites.
While tort tale opponents do not seem able or willing to tailor their information into a message fit for the mass-mediated marketplace, other sources may indirectly perform this work for them. Reference KohmSteven Kohm's (2006) research, for instance, suggests that reality-based television judge shows have the potential to foster faith in the law, even when particular cases directly challenge the law's legitimacy and authority. People may disagree with certain judicial outcomes and therefore think that the system is flawed, but the judicial authority, judgment style, and general outlook on law presented by shows like The People's Court remind viewers that “the law must still be treated with respect, even as it utterly fails to produce justice” (Reference KohmKohm 2006: 708). This message about civil law indirectly counters the logic of tort tales. The typical tort tale presents the civil legal system as regularly producing perverse outcomes and therefore properly being the subject of contempt and ridicule in the present and massive restructuring in the future.
Although they may have the potential to substantively counter the central message of tort tales, reality-based television judge shows share or approximate many of the advantageous features of tort tales. As TV shows they are automatically part of the mass-media marketplace. In addition, they have the potential to be spread beyond the immediate viewing audience through retelling. Finally, “because reality-based courtroom programs are marketed and potentially received by audiences as reality, their legal and moral messages are all the more potent” (Reference KohmKohm 2006: 695). Given these form-related attributes, television judge shows have the potential to be a potent force in the popular perception of civil law.
That this form may foster faith in law, however, does not necessarily translate to TV judge shows countering tort tales. Judge shows also have the potential to bolster and amplify the tort tale message. Kohm's research finds that shows like Judge Judy take a “neoliberal” approach to decisionmaking that emphasizes self-responsibility and warns against using the courts to settle personal problems—two strong themes in the tort reform movement generally and in tort tales specifically. Furthermore, on Judge Judy, the “law recedes into the background and the opinions, hunches, and intuition of Judge Judy are pushed to the fore” (Reference KohmKohm 2006: 703). Such a view toward law and decisionmaking mirrors that of tort tales in which the anecdote, as well as gut evaluations of fairness and solutions are taken as authoritative. Finally, returning to his earlier evaluation of The People's Court, even if the show reminds viewers that “the law must still be treated with respect,” Kohm asserts that The People's Court still reaffirms the belief that the system “utterly fails to produce justice” (708). Given these attributes, reality-based television judge shows also have the ability to support, rather than counter, tort tales and the tort reform agenda.
Kohm's work outlines and categorizes the different ideological messages communicated by The People's Court and Judge Judy in terms of (1) sources of judicial authority, (2) style of judgment, and (3) general outlook on the law. His research, however, does not go beyond discussing the big themes in each show. Our article adds to this by mixing elements of Kohm's work on ideological messages with Haltom and McCann's work on creating hegemonic ideas about civil law. We do this by analyzing a selection of three of the most popular reality-based television judge shows in order to evaluate whether these programs contribute to the creation and dissemination of tort tales, or whether they have the potential to generate counternarratives about the civil law system. In doing so, this article also expands Haltom and McCann's work on tort tales and the politics of tort reform by looking at a narrative source that their book does not examine.
We proceed by briefly describing the central features of TV judge shows and addressing some potential challenges to the project's premise. After this, we move to a discussion of data collection and analysis methods. Finally, we conclude with an analysis of the data collected and answers to various questions regarding the relationship between TV judge shows and tort tales.
Judging on Television
The TV judge shows examined in this study are situated at the intersection between American viewers' interest in law-related drama and the prevalence of reality-based television programming. In what have been referred to as “syndi-courts,” because of the programs' placement within the syndicated television market (Reference PodlasPodlas 2002), retired judges wearing black judicial robes preside over a set decorated to approximate a courtroom, complete with bench, gavel, and bailiff. Individual litigants have the opportunity to present their claims and defenses to the judge, who is able to ask questions and then to rule based on the testimony and evidence presented by the parties.
With the exception of specialized programs that focus on divorce and/or family court claims, the claims presented on TV judge shows are generally those that would be found within small claims courts, such as disputes over unpaid rent and loans, damage to property, and unfulfilled service contracts. Most of these shows cap the award at $5,000. Although the format varies somewhat among shows, the adjudication portions of the programs are interspersed with commentary from nonjudicial actors and are often followed by a concluding segment in which a summary of or reaction to the case is offered by an announcer or by the parties themselves.
It is widely acknowledged that law and legal settings make for good television and movies. TV judge shows are extremely popular. Both Judge Judy and Judge Joe Brown ranked in the top 50 for syndicated programs nationally for the 2008–2009 season, and Judge Judy ranked fifth in the top 50 syndicated programs for 2009–2010 (Television Bureau of Advertising 2011). Judge Judy has consistently been a top 10 syndicated show, with viewership between 6.3 and 9.8 million (Reference LevinLevin 2011; Reference StanleyStanley 2007). This number puts Judge Judy in the orbit of The Oprah Winfrey Show (which averaged between 6.5 and 8 million viewers per episode), with Judge Judy regularly surpassing The Oprah Winfrey Show in viewership in The Oprah Winfrey Show's final years (Reference LevinLevin 2011).
While TV judge shows present themselves as resembling courts of law, there are important distinctions between actual courts and syndi-courts. The amount of time given to each case is potentially less in the TV judge show world, as cases are edited to fit within the program length. Programs that run for 30 minutes tend to present two cases per episode, while the hour-long The People's Court generally resolves three cases within one episode.
Another important difference between courts of law and those on TV judge shows regards case selection. Producers for TV judge shows have greater discretion over which cases their judges will hear than do judges in actual small claims courts. Cases for these shows are selected by producers from submissions in response to advertising during the programs and from the programs' Web sites. In addition, producers employ “courtroom stringers” nationwide to review filings in small claims courts and select cases they think would be suited to television resolution (Reference KrukowskiKrukowski 2009; Reference StanleyStanley 2007; Reference WilsonWilson 2009).
The greatest difference between real-life courts and those over which Judge Judy and her colleagues preside is that TV judge shows offer a form of arbitration in which the parties contract with one another and the program to settle their disputes on television and to forgo appeals. The judges (or their producers) are governed by the terms of the contract, not the rules of due process or civil procedure. This allows the TV judges substantial room to consider nonlegal factors and grounds in the resolution of cases and also allows the personality of the judge to play a central role in the resolution of the dispute.
The arbitration offered on these shows also differs from real-world arbitration in that judgments in these cases are paid not by one of the parties, but rather by the program itself (Reference WilsonWilson 2009). (The disclaimer at the end of The People's Court states, “Both the plaintiff and the defendant have been paid from a fund for their appearance. The amount, if any, awarded on the case is deducted from this fund, and the remainder is divided equally between both litigants. The amount of the fund is dependent on the size of the judgment.”) Thus, Epstein argues that the litigants on TV judge shows should actually be considered “contestants,” as they “enjoy the possibility of a payoff with little or no risk of loss” (Reference Epstein2001: 137).
Comparing TV Judges and the “McDonald's Coffee Lady”
Our research begins with the premise that TV judge shows can affect the ways in which people view the American legal system. In their book Reel Justice, Reference Bergman and AsimowBergman and Asimow (2006) argue that popular-culture sources, such as films and television shows, “are the raw material out of which people extract information and construct opinions about how the law works and what lawyers do” (xix). They note, as we do, that popular culture reflects what people may already believe about the law, but it also plays a role in maintaining or altering those beliefs. Reed's theory (Reference Reed and Sherwin2006) of the political consequences of a “juridico-entertainment complex” starts with the transformation of “legal proceedings and legal conflict into consumable commodities that purport to educate and enlighten but simultaneously titillate, amuse, and otherwise entertain a mass audience” (253). These legal entertainment commodities are “interpreted as important and revealing windows on public problems,” influencing viewers' perception of the legal process and particular topics of dispute. Viewers are then primed to respond to mobilization by political elites (Reference Reed and SherwinReed 2006: 254).
We also agree with and build from Reference KohmKohm (2006) and Reference EpsteinEpstein (2001), who argue that daytime TV judge shows are an especially important popular-culture genre to analyze because of their resonance on multiple levels for the average viewer. First, TV judge shows focus on civil law matters, which are the ways in which most people directly experience the legal system in their own lives. Second, because of their status as reality shows, TV judge shows' moral and legal messages may be perceived by viewers as “more potent” than fictional movie and television dramas or comedies (Reference KohmKohm 2006: 695). Third, according to Kohm, these programs are marketed toward female and marginalized viewers, for whom access and power in legal affairs may be limited. This point is reflected by Epstein's note that these programs intentionally have judges who belong to ethnic and racial minority groups and who are also disproportionately female. Epstein concludes that “otherness makes these judges less threatening to litigants and audiences” and “allows the judge to pass judgment on a litigant and not be viewed as suspect or abusive of her power” (135).
Before discussing how television judge shows and tort tales relate, we need to address some significant differences between the form and substance of the two subjects. For example, TV judge shows, while shorter than “real” cases, are longer than tort tales, and the immediate disputants are directly involved and able to present their arguments. As a result, the viewer stands to gather more information about a dispute from one of these shows than from a typical tort tale. These factors may allow viewers more interpretive leeway and also require viewers to condense the show in order to retell it.
These concerns, however, do not undermine the study's premise. The shows provide multiple sources of authority, legal and otherwise, that frame and explain the disputes for the viewer. As a result, the number of possible interpretations is limited. To begin, the judges in the shows that we watched and coded spend significant amounts of time molding the narrative and making the litigants—and, by extension, the home viewers—aware of why they are deciding that case as they are. Nontelevised judges also do this to retain the legitimacy of the law, their authority, and the decisions they announce, but it takes a more overt and blunt form on TV judge shows.
The state's judges may see the competing counselors and other lawyers as their primary audience, and thus rely on law and doctrine to explain their decisions. If this were done in a TV show, the lay viewer could easily be lost and the show would fail. Judges Judy Scheindlin, Joe Brown, and Marilyn Milian, however, have more common audiences to consider and, more important, to entertain. As a result, their explanations, and thus their roles in controlling the narratives, are more overt and bluntly accessible. The TV judges' discussion of the extent of tort liability, when present, may not be fully understood by the audience, but judges' reasoning is clear and alternative interpretations of the cases are cut off. For example, when a judge or courtroom commentator explicitly calls a litigant a liar or an idiot, or tells the litigant he is in need of “proper man training”—which regularly occurs on these shows—the intended interpretation of events and people is quite clear.
All three shows observed also go beyond the judge to frame the cases presented to the viewer. The People's Court and Judge Joe Brown use in-show commentators, midcase recaps, postdecision summations, and gallery or live-audience polling to guide home viewers' interpretations from start to finish. The People's Court and Judge Judy also use litigant interviews, or select edits of interviews, at the close of a case to set the character of each litigant for the audience. These various measures not only help to control the shows' messages, but also allow for easier viewer summation, which can encourage later retelling. These cases thus would be able to spread beyond the already significant viewership, similar to a tort tale.
Another significant difference between tort tales and TV judge shows springs from the content of the cases in each. As the name informs us, tort tales are concerned solely with tort law. Disputes in TV judge shows, however, are not limited to tort cases. They can, and often do, involve contract disputes. For example, 97 cases, or just over half of our sample of 191 cases, involved tort claims. This is compared with, and outnumbered by, the 119 cases that involved contract disputes.Footnote 1
This substantive legal difference, however, is neutralized when one considers that most consumers of tort tales and TV judge shows likely do not differentiate between tort and contract disputes. These cases are all just part of the larger civil justice system that these shows present to the viewer. By attacking tort law, tort tales present the civil law system—and possibly the entire legal system by extension—as being broken. Considering this, TV judge shows are still a strong potential contributor to forming the public's beliefs not only about torts, but also about the legal system in general.
An additional difference between cases on TV judge shows and those featured in tort tales concerns the amount of money being sought by the plaintiffs in each forum. Defendants in TV judge shows lack the “deep pockets” of the customary tort tale victim. The cases that Judge Judy and her colleagues hear are small claims cases with maximum award amounts set at $5,000. The television cases lack the high stakes that Haltom and McCann identify as part of the “holler of the dollar,” whereby the plaintiff's blameworthiness and character defects increase in proportion to the amount that he or she “tries to take from the faultless party” (Reference Haltom and McCannHaltom & McCann 2004: 62).
While the absence of deep pockets may diminish, from the tort tale perspective, the potential indignation directed at particular plaintiffs, the smaller amounts sought in television courts do not preclude the stereotypic characterization element of tort tales from being present in TV judge cases. At root, plaintiffs may still be characterized as “morally if not legally blameworthy individuals … who beset blameless, responsible, or hardworking individuals or entities” (Reference Haltom and McCannHaltom & McCann 2004: 62).
From the perspective of the viewer, the “holler of the dollar” may not depend on the absolute dollar award sought. Viewers might actually identify more with the threat of the smaller awards sought in the televised cases than with the classic tort tale in which a plaintiff seeks his or her lottery windfall at the expense of a wealthy defendant. The impact, or possibility, of a multimillion-dollar judgment against the viewer may be inconceivable to that viewer, but being targeted for a “small” chunk of several thousand dollars is a threat that many viewers could imagine and fear.
Methods
To research TV judge shows' messages about litigants and their claims, we proposed to analyze approximately a month's worth of the top three TV judge shows. Given that the study's aim is to determine the place of these shows in the popular perception and discussion of torts, it is important to look at the shows that garner the most viewers. The three most popular TV judge shows are (in rank order) Judge Judy, Judge Joe Brown, and The People's Court (Reference BermanBerman 2007; Reference KrukowskiKrukowski 2009). Since Judge Judy is clearly the most highly viewed reality-based TV judge show, it led the list of the reviewed shows (Reference HuffHuff 2008: 45).
Television programs were recorded on weekday afternoons for the month of June 2009. Judge Judy and Judge Joe Brown are half-hour-long programs that air twice in the afternoon in our local television market. The People's Court has an hour-long format and runs once daily in the same television market. The half-hour shows feature one to two cases per episode, while The People's Court generally resolves three cases per episode. Each show was recorded for the entire month on the same channel. None of the episodes repeated during that month (though many were most certainly reruns), but we did have to exclude a few individual cases within our recordings, as episodes were interrupted by weather alerts and the like. We watched and coded 55.5 hours, or 191 cases, of television judge programming.
Individual cases were coded based on several categories: basic information, legitimacy of claims, treatment of the parties, and outcome and resolution of the dispute. Basic information about the case included its air date and order within the episode, along with a summary of the dispute and a description of the relationship between the parties. We noted what awards were sought and whether counterclaims were made. The disputes were classified as pertaining to either tort or contract claims, or, where multiple claims were made and where it was appropriate, both.
In analyzing the legitimacy (or illegitimacy) of claims, we listened for indications from the judge and other court personnel (such as commentators) as to whether a case was deserving of the court's intervention, even if aspects of the case lacked explicit legal grounding. Illegitimate claims exploit the courts by misusing time and resources on cases that do not warrant any or as much of the courts' attention. An illegitimate or opportunistic claim was one in which the court indicated that legal proceedings should be unnecessary or undesirable for the situation, regardless of whether the claim is legally actionable. An example of such a case occurs when Judge Joe Brown wonders out loud, in a case regarding explicit material on a camera, why the litigant would “want to bring this case to court instead of keeping this private” (JB, 6/12, 3:30). Illegitimate or opportunistic claims could also be ones in which the court characterizes claims as frivolous or exaggerated. Examples include cases in which the plaintiff is described as harassing the defendant through bringing lawsuits or in which the wrong party is brought to court.
Separately, we also considered how the TV courts treated plaintiffs and defendants. Based on the work of Reference KohmKohm (2006) and Reference EpsteinEpstein (2001), as well as popular press accounts of the format of TV judge shows, we hypothesized that parties could be treated in a variety of ways (not mutually exclusive) by the court. Parties could be treated in a patronizing manner, in which the judge or other personnel make condescending remarks about the litigants' intelligence, behavior, or other characteristics in reference to the events that gave rise to the dispute or the substantive content of the party's argument in court. Parties could also be treated with distrust, whereby the judge expresses doubt as to the veracity of parties' accounts, motives, and behavior. Parties might also be treated as avoiding responsibility. In contrast to the three treatments just listed, we also believed TV courts might treat plaintiffs with sympathy, as evidenced by indications that the court personnel personally identifies with the plaintiff or expresses a tendency to favor or support the plaintiff.
Beyond the more overt positive and negative construction of the parties, we were also interested in more subtle, and at times neutral, treatment of the parties. For example, we made note of interactions between the parties and the court that are not encompassed by the manners already mentioned, such as when judges offer advice of a nonlegal variety—for example, how to behave in a more moral or ethical manner, how to apply good manners, and how to approach future endeavors. Given their broad nature, these other comments and interactions could be positively, negatively, or neutrally construed. Also, due to the time constraints of these shows, it is possible that a party might receive limited or no treatment from the court in the episode as it aired. As with the more overt treatment of parties, this too was noted.
On a related note, because Kohm has argued that these shows can educate as well as entertain, and because their self-presentation reflects the formal legal system, we noted whether the television courts instruct parties as to their rights and obligations under the law. Finally, we recorded the outcomes of the claims—whether the awards sought were met, partial (i.e., the court did not award the full amount requested), dismissed, or increased.Footnote 2 In the section that follows, we share the results of this examination.
Analysis
Having read Reference KohmKohm's (2006) and Reference EpsteinEpstein's (2001) work on television judge shows, we expected to find that these programs would largely reinforce significant elements of the tort tale narrative and the tort reform view of civil law. Heroes and moral outrage make for good TV, and both are readily provided for in the tort reform view of the world. The stock tort tale character of the irresponsible sue-happy plaintiff seeking undeserved compensation stands as a recognizable bad guy. The general image of the broken civil law system plays dual roles—one as a target for rebuke, the other as a victim in need of rescue. In the former, the system has been corrupted so that it encourages undeserving plaintiffs to sue and allows them to win. Because of this, it cannot be spared scorn. However, the system is also a victim. We accept that it is flawed, but like a sinner, it can be redeemed and born again by heroic intervention.
Enter the hero—the unencumbered, rough-justice TV judge. The state's judges might be hampered by a flawed institution, but no-nonsense TV judges are free to use extralegal reasoning to arrive at outcomes that will satisfy the audience's sense of right. In the process of dispensing this justice, the judges assume the role of hero akin to the renegade cop fighting the good fight by unconventional means. The shows can present their judges as saving the system—lecturing plaintiffs that while they may get away with scamming the flawed state's courts, they can't do the same in theirs—and thus ultimately reinforce the tort reform message. In short, the black-and-white, normatively infused tort reform view of courts and litigants sets the stage for recognizable, entertaining, and engaging TV.
We were thus surprised to see that TV judge shows largely do not adopt this script. Rather, there is much to suggest that these shows present a view of the civil law system that, on balance, defies the dominant tort tale narrative. The tort reform view of courts and litigants provides one way to frame a show, but it is not the only way. The shows' collective counter to the tort tale narrative starts by embracing and reproducing the classic view of litigants in which plaintiffs are victims and defendants are wrongdoers. It continues by refraining from reproaching the actual court system.
Using these roles as a starting point, we paid specific attention to the portrayal of the plaintiffs' claims, the construction of the parties, and the outcomes of the cases. The analysis proceeds by first looking at trends in the treatment of the plaintiffs' claims and the final rulings pronounced. After this, it moves to examining the construction of the parties and the treatment of the official state legal system. Through these sections, the article also considers how these shows entertain audiences and how this affects the shows' abilities to operate as an effective counter-narrative source to tort tales. We find that TV judges function as heroes in these narratives, but not because they take on the undeserving litigant as the tort tale would have them do. Rather, these judges serve as the protectors of victims, who in these shows are overwhelmingly the plaintiffs.
Claims and Outcomes
As discussed above, tort tales present the civil law system as being broken because undeserving plaintiffs are able to file frivolous claims in court and win. In this scenario, the audience is meant to despise the plaintiff because of his greedy exploitation of the courts, his intent to profit from his own stupidity, or both. When the plaintiff becomes the bad guy in the tort tale, the audience is expected to shift its sympathy to the defendant, who is portrayed as the innocent party and thus the actual victim by virtue of being dragged to court because of his wealth and the plaintiff's misplaced assignment of blame.
Since the tort tale's reversal of traditional normative labels starts with the plaintiff's illegitimate claim, we must ask whether or not the TV judge shows cast the plaintiffs' claims as frivolous or otherwise inappropriate for courts. The short answer to this question is no. The shows do not tend to critique the claims initially made by plaintiffs, and thus one can presume that the claims deserve the courts' attention. Specifically, of the 191 cases coded, only 34, or 18 percent of the sample, involved plaintiffs' claims that the TV courts characterized as wholly illegitimate.
The strength of this statistic, however, is weakened somewhat by the fact that the legitimacy of the claim was often determined by the judges' or commentators' lack of explicit criticism. That is, instead of affirming the legitimacy of most of the plaintiffs' claims through overt statements, the claims are presumed to be legitimate by the absence of overt statements to the contrary.Footnote 3 This weakness is lessened when one looks at the correlation between verdicts and cases in which the plaintiff's claims are presumptively legitimate, as shown in Figure 1. The rulings in these shows stand as strong pronouncements of claims' legitimacy because TV judges are allowed more discretion than their official state counterparts are. Television judges are not limited by the law, and thus if they think that a case is legally actionable, but that the plaintiff is not deserving of an award for whatever reason, they do not have to grant the plaintiff anything. In fact, denying such a plaintiff can make for entertaining television.
Figure 1. Plaintiff Claims and Case Outcomes.
Considering this, it is important to note that in 91 percent of the cases in which the claims are treated as legitimate, and in 89 percent of the cases in which there is at least one legitimate claim made, the plaintiff receives some form of compensation. Taken collectively, this demonstrates that when viewers tune in to one of these shows they will more often than not see (1) a plaintiff making a claim that presumably deserves the court's attention, and (2) that plaintiff winning some award. It is thus hard to maintain that TV judge shows tend to take the first step in the tort tale narrative.
This is not to say that these shows fail to present instances in which the plaintiff wrongly seeks remuneration in court. The judges and courtroom commentators explicitly criticize the entirety of the plaintiffs' claims in 18 percent (34) of the cases coded.Footnote 4 For example, Judge Judy chastises one plaintiff because the dispute sprang from “outrageous behavior by [the plaintiff]. So what are you suing her for? … Punitive damages for what? You and your kids started [the dispute].” Judge Judy fittingly follows through on this rebuke by concluding that “you [the plaintiff] are not being compensated—punitively or otherwise—for your bad behavior” (JJ, 6/4, 4:30).
This is an example of the TV judge playing the tort reform hero by calling out and denying the undeserving plaintiff. Judge Judy is not alone in this. All of the TV judges studied dismiss cases springing from wholly illegitimate claims 76 percent of the time and issue partial awards in these cases 18 percent of the time. However, given the rate at which these cases occur, one would have to watch roughly more than five full episodes in order to encounter a case in which the plaintiff is pursuing a claim that the judge treats as wholly illegitimate. Chances are that the casual viewer will see a plaintiff who is rebuked for bringing a groundless or otherwise inappropriate suit to court, but with far less frequency than we expect would lead one to say that Americans are overly litigious and frequently file illegitimate cases.
Adding to this, and taking direct aim at the tort tale narrative, the observed TV judges in our sample award the full amount sought only in one case in which they deem the plaintiff's claim to be wholly illegitimate. The same is true for cases in which the plaintiff's claim is deemed partly illegitimate. These shows, then, are not only failing to illustrate the perceived frequency of frivolous lawsuits, but also overwhelmingly failing to illustrate tort tales' central lesson: that undeserving plaintiffs not only file illegitimate claims, but also succeed when doing so. With only one such case out of the 191 viewed, these TV judge shows severely deviate from this tort tale staple. Such a deviation is not wholly unexpected because, as we explained earlier, we expect that the way in which TV judges will reinforce the tort tale narrative is by singling out and dismissing the opportunistic plaintiff.
The tort reform message may still be transmitted by TV cases in which the plaintiff is making a presumably legitimate claim but is asking for more than the court considers appropriate. Seventy-four (39 percent) of all cases coded involve some form of partial award.Footnote 5 Due to this frequency, the casual viewer will frequently encounter partial awards and thus may get the impression that while people largely sue for appropriate reasons, they often overclaim. This can help perpetuate the image of the greedy plaintiff.
TV judge shows also reinforce the idea of greed by noting that when the judges give a partial award, they often significantly reduce the amount originally sought. The three shows observed all include an award cap of $5,000. The average amount pursued by all plaintiffs, when specified, is $2,952. Within the sample of cases in which the award is known to be partial, the average amount pursued is $2,648 and the average award is $1,092. Given this, the average reduction in these cases is roughly 59 percent. Looking a little more closely at the data, the percentage of the reduction tends to increase with the size of the original claim. That is, the more the plaintiff originally claims, the larger the average percentage reduced.
The above might suggest that plaintiffs are greedy, and that judges recognize this and punish them for it, but there are at least a few reasons to doubt the strength and conveyance of this tort reform message. First, of the shows observed, The People's Court is the only one that explicitly shows the viewer the amount sought by the plaintiff (the amount is typed onto the screen while a narrator introduces the plaintiff and the claim). The amount usually comes out in the initial questioning and statements in Judge Joe Brown, while Judge Judy often leaves the viewer guessing about the amount sought.
Second, none of the shows systematically remind the viewer of the difference between what the plaintiff seeks and what the judge awards at the end. In fact, the case outcomes are often rushed. Judges on all three shows quickly, sometimes abruptly, announce the verdicts and awards with a sharp smack of the gavel that instantly creates motion in the courtroom. The judge stands and the audience chatters while cameras pan the room and litigants exit. All of the motion and sound creates a sudden change from the fixed positions and ordered presentation that defines the hearing of the case. The verdict and ensuing relative disorder is then followed by voice-over commentary and postcase interviews that typically turn the audience's attention back to the more salacious details of the disputes and the litigants' lives and thus reiterate what was fun about what the viewer has just witnessed.Footnote 6 All of these elements distract viewers from the details of the verdict that was just announced. As a result, viewers may know that partial awards occur, but the amount by which original claims are reduced is not discussed in detail or in any way emphasized.
The above stylistic elements signal what is and is not important. They tell the audience that the details of the disputes and their resolution do not matter nearly as much as the judges' interactions with the litigants. The bulk of the shows' time is spent on these interactions because they serve as the source of the shows' drama. These interactions provide a forum for spectacle, and spectacle, not details, make for good TV.
Stepping back and looking at the treatment of plaintiffs' claims and the trends in awards, one can conclude that these shows do not fit the tort tale mold. Plaintiffs' claims are treated as legitimate and worthy of the court a majority of the time. Correspondingly, plaintiffs also win something in a majority of the cases. There are counterexamples of plaintiffs being admonished for filing illegitimate or otherwise inappropriate claims, and there are multiple cases in which the ultimate award is significantly lower than what the plaintiff originally seeks. However, the former are significantly outnumbered by presumptively legitimate claims, and the latter are not emphasized in a way that the casual viewer would necessarily notice or remember.
If our analysis were to end here, we would have a case that these shows do not enforce the tort reform message. Rather, it appears that the civil law system, as presented by the shows, discourages frivolous suits and identifies and dismisses the few bad cases that actually do make it to court. The treatment of the claims and the trends in final awards, however, are not the only parts that matter in terms of understanding the messages that these shows deliver about the civil justice system. There is still a need to examine how the parties are constructed and how the state's system is treated. Are the TV courts succeeding where the state's courts fail? What messages are being sent about the types of people who come to court? We address these questions next.
Construction of the Plaintiffs
As discussed above, tort tales create generalizable scenarios in which the undeserving plaintiff schemes and makes opportunistic use of the legal system at the expense of the defendant who is, if not a victim, at the very least a sympathetic target by virtue of his/her/its deep pockets. Thus far we have explored the undeserving plaintiff via the nature of the initial legal claims made. This exploration has revealed that plaintiffs on TV judge shows are largely making legitimate claims, and when they make illegitimate ones—either in whole or in part—they are likely either to lose their cases or to face a significant decrease in their final awards.
The definition of the undeserving plaintiff extends beyond the initial legal claim made, however. The undeserving plaintiff can be constructed over the course of the television show. In fact, we argue that such drawn-out construction fits with how the producers of these shows seek to entertain their audiences.
TV judge shows engage and amuse by appealing to our desire to see others humiliated and disciplined. The introduction to Judge Joe Brown suggests as much with the catchphrase “I'm protecting womanhood and promoting manhood.” That is, if you watch Judge Joe Brown you can be assured that you are going to see the judge lash out against people who do not conform to his traditionally defined gender roles. You can be equally confident that if you watch Judge Judy you will see the judge telling people to “shut it” and informing them that they are stupid. Even The People's Court, which presents the most details about the cases during its introduction, suggests that fun will be had at the litigants' expense. A movie preview–style announcer uses puns as he briefly presents litigants and case information accompanied by the show's well-known musical theme, thus priming the audience for entertainment. The above production elements require us to ask how plaintiffs as a group are treated by the TV judge shows to which they bring their claims.
We examined the TV judge shows for negative treatment of the plaintiff by recording when plaintiffs are treated in one or more of four possible negative ways. Judges or other court personnel could treat the plaintiff in a patronizing manner, in which the court personnel makes condescending remarks about the plaintiff's intelligence, behavior, and so on in reference to the events that gave rise to the dispute or the substantive content of the party's argument in court. Judges might express that plaintiffs are not trustworthy by indicating doubt as to the veracity of plaintiffs' accounts, motives, and behavior. Judges might also suggest that plaintiffs have avoided responsibility. The final negative treatment category is simply labeled as “other” and was noted whenever the shows treat the plaintiffs negatively in a way that defied the specified categorizations. Examples of this category include judges admonishing plaintiffs for their misuse of welfare payments or lecturing them about the “problem” of being a single mother. These were not coded as instances of patronizing treatment because the subject of the rebuke does not directly pertain to the case at hand. These instances do, however, reflect negatively on the plaintiff.
Of all the cases we watched, 38 percent include some negative treatment of the plaintiff (see Figure 2).Footnote 7 While it is substantial that just over one-third of all coded cases portray plaintiffs negatively, this number is actually lower than we expected. The major thrust of tort tales' characterizations of plaintiffs, as well as earlier studies of TV judge shows, led us to expect far more negatively portrayed behavior from plaintiffs. Earlier studies such as Reference EpsteinEpstein's (2001) do not distinguish between treatment of plaintiffs and treatment of defendants. Epstein also does not distinguish between negative characterization of litigant behavior that is pertinent to the litigant's claim or argument and disapproval of more general behavior or lifestyle choices made by the plaintiff. Thus, Epstein finds that judicial mockery of parties is present in approximately 61 percent of cases. This number is substantially higher than what we found in relation to plaintiffs, but, as we will explain shortly, we find substantial negative treatment of defendants.
Figure 2. Constructions of Litigants.
Each of the TV judges observed makes patronizing remarks about some of the plaintiffs before them. For example, Judge Marilyn Milian (of The People's Court) calls a plaintiff “stupid” and “foolish” for agreeing to cash a check for the defendant and not verifying the check's authenticity. As a college campus police officer, says Milian, the plaintiff “should have to surrender [his] badge” for agreeing to cash a check the origins of which were unknown (PC, 6/2, 4:00). In a dispute over a car loan, Judge Joe Brown questions the plaintiff's choice to be in a relationship with “a guy who refuses to take [public transportation] to work” (JB, 6/16, 3:30). And Judge Judy scolds a plaintiff for her behavior at a family party that gave way to a fight: “You behaved badly. You behaved badly. Do you understand that? You behaved super badly” (JJ, 6/4, 4:30).
In over a third of the cases watched, 66 plaintiffs (35 percent) also receive legal instruction from the court. In these cases, plaintiffs are instructed on how they should have behaved in the case—or how they should behave in future situations like it—in order to protect themselves. While we considered legal instruction to be neutral in terms of construction, all but a few instances of legal instruction are accompanied by the elements of negative construction listed above.
The negative construction of the plaintiff, however, is only one of the necessary tort tale elements. In tort tales, it is not just that the plaintiff is someone who behaves badly; the real insult is that the bad plaintiff undeservingly wins, showcasing the breakdown of social norms and presenting a political problem to be solved. Thus, to support the tort tale narrative, TV judge shows would have to present badly behaving plaintiffs who win cases. When looking at wholly negatively constructed plaintiffs, only 11 of them win the full amount that they seek. This means that only 6 percent of the total cases watched fit the tort tale mold in this way. An additional 29 wholly negatively constructed plaintiffs win partial awards. Adding these partial award cases to those in which wholly negatively constructed plaintiffs win all of what they seek raises the number of negatively constructed plaintiffs winning something to 21 percent of the total cases watched. This number is not insubstantial, but it is far from being the image that the tellers of tort tales seek to impart. This is especially true when one sees that the bulk of these cases are ones in which the negatively constructed plaintiffs win only part of what they seek. A partial victory is far less galling than is a negatively constructed plaintiff winning everything that he or she seeks.
As with the finding regarding plaintiffs who make illegitimate claims, the percentage of negatively constructed plaintiffs who win their cases does not support the tort tale narrative. The question remains, however, as to whether judge programs show the polar opposite to tort tales: a direct rebuke in which sympathetic plaintiffs are accorded the justice they are owed. Plaintiffs in our study sometimes enjoy sympathetic treatment from the television court. For example, Judge Joe Brown praises one plaintiff, who is suing an ex-boyfriend for his failure to repay loans, for her beauty and dedication to her education (JB, 6/25, 3:00). In a case about a title to a residential trailer, Judge Marilyn Milian questions why the plaintiff bought the trailer for his late ex-wife, from whom the plaintiff had been divorced for many years. When the plaintiff explains that he would have always owed his ex-wife for the work she did raising their sons, Judge Milian responds approvingly, “Good for you.” Later in the same case, the judge responds to the plaintiff's claim request with the statement, “I'd love to give it to you; give me anything I can buy” (PC, 6/24, 4:00). In a few instances, the judges even point out claims the plaintiffs had not made, such as an instance in which Judge Joe Brown advises a plaintiff that she could make claims against a defendant for battery or assault (JB, 6/23, 3:00). While rare, such cases work against the idea that plaintiffs are rushing to court and overclaiming.
Admittedly, with only 22 cases, the number of overtly positively constructed plaintiffs is low. This low number, however, is compensated for by the high number of cases in which the plaintiff is assumed to be in the right by virtue of receiving limited, if any, treatment from the television court. Thirty-eight percent of the total cases watched include no real treatment of the plaintiff that was aired in the program. We theorize that this limited treatment results from the format and entertainment goals of the programs. As Reference EpsteinEpstein (2001: 131) argues, one of the chief attractions for viewers of these programs is to watch the judges chastising someone. Given that the television courts perceive 73 percent of plaintiff claims as presumptively wholly legitimate, and an additional 9 percent of the claims are at least partially presumptively legitimate, it becomes difficult (though not impossible) to continually chastise plaintiffs. The drama in each legal dispute must come from somewhere, however. We turn next to the TV courts' treatment of defendants to reveal the importance of cases in which the plaintiff receives limited treatment and to add to the contrasts between tort tale narratives and television judge shows.
Construction of the Defendants
As mentioned in the previous section, Reference EpsteinEpstein (2001) finds that judicial mockery of parties is present in approximately 61 percent of cases he studied. We found a similar number when looking at our defendants in isolation. Sixty-two percent of all of the cases we coded involve a wholly negative construction of defendants.Footnote 8
The attacks on defendants come in all forms. As with the plaintiffs, we coded four types of negative construction—patronizing statements, distrust, accusations of avoiding responsibility, and “other” forms of negative treatment (e.g., admonishment of an individual's lifestyle choices). Negative construction of the defendants most frequently came via patronizing comments (76 instances). For example, Judge Joe Brown sarcastically undermines one defendant's reason for not paying back a loan by responding, “She was off on stress leave? Oh my, we are so weak these days. … Don't you know that you sound foolish?” (JB 6/3, 3:30). Claims of avoiding responsibility (“It was your responsibility! Whose responsibility was it? Mine?”) and distrust (“You're just a little too slick for my tastes, you know that? … You say whatever you need to say”) were not far behind (JJ, 6/3, 4:30; PC, 6/2, 4:00)—we coded 58 instances of the former and 43 instances of the latter. Twenty-six cases also involved other forms of negative treatment. For example, one defendant, an unemployed single mother, is advised to “keep it together until she can afford it,” meaning that she should refrain from having any more children until she can “get a job and support … [her] lazy self” (JB, 6/11, 3). This comment is aimed directly at the defendant rather than at some pertinent detail of the case.
Beyond the totals, it is worth noting that when a defendant is negatively constructed, that construction comes in multiple forms 50 percent of the time. While we did not track the severity or the number of times that a defendant is attacked in the same style (i.e., the number or severity of patronizing comments received), the frequency of multiple forms of negative construction suggests that the shows are not subtle in their identification of whom the audience should see as the bad guy. The obviousness of the defendant as bad guy is only strengthened by looking at from whom these litigants stand across in the courtroom.
As Figure 3 shows, of the 118 cases in which we found wholly negatively constructed defendants, these parties are paired with wholly negatively constructed plaintiffs in only 40 cases. In these cases, both parties have some sort of problem that draws the show's attention, and it would take further coding to determine who is ultimately cast as good and bad in each case. The normative ambiguity presented in these cases can indirectly contribute to the tort reform argument because we, as viewers, can come to generally despise anyone who uses courts. The strength of such a message is partially mitigated by the fact that cases in which both parties are negatively constructed occur in only 21 percent of the overall sample. More important, as the rest of this section will illustrate, the producers of TV judge shows prefer to use the adversarial setup of the courtroom in order to attach clear normative labels to the parties. Doing so works against the tort tale format and message.
Figure 3. Paired Constructions of Litigants.
While negatively constructed defendants are occasionally paired with fallible plaintiffs, defendants more regularly stand as the sole bad litigant in a case. That is to say that when a defendant is negatively constructed, he or she more often than not faces off against a positive or neutral plaintiff. There are 70 of these cases, which equates to 37 percent of all cases coded and 59 percent of the cases involving negatively constructed defendants. Thus, in over a third of the cases coded there is no mistaking that the defendant is the bad guy and the plaintiff is the good guy.
Cases that attach these stark normative labels are ripe with opportunities for moral outrage at the blameworthiness of the defendant, and thus these cases produce some of the choicest schadenfreude rebukes. For example, Judge Joe Brown, in a case involving a sister suing her brother for refusing to pay back a loan, unleashes the following: “You know you are fitting into a [racial] stereotype, don't you? … You sound like a gigolo … a boy toy. This is embarrassing. … Maybe you will be able to make it to the shores of the island of manhood … so you don't become such a continuing embarrassment to the idea of M-A-N” (JB, 6/4, 3). In this case there is no confusion regarding who is in the right and who is in the wrong. More to the point, the normative labels are exactly the opposite of what they are in the classic tort tale.
The importance of these cases in terms of countering the tort reform message is highlighted by the fact that wholly negatively constructed defendants simply outnumber wholly negatively constructed plaintiffs in four important ways. The first, as mentioned above, is in the number of cases in which negatively constructed defendants versus negatively constructed plaintiffs appear—118 versus 64. This illustrates that viewers simply see bad defendants more often than they see bad plaintiffs.
The second way, also mentioned above, regards wholly negatively constructed defendants outnumbering wholly negatively constructed plaintiffs in terms of the instances in which they are presented as the lone bad guy. Plaintiffs draw all of the negative criticism and comments in only 13 percent of all cases. This is in comparison to defendants, who do so in 39 percent of all cases. In other words, defendants draw all of the negative attention more than three times as often as plaintiffs.
A third imbalance involves the frequency of cases that feature a wholly bad defendant (118) in comparison to the 34 cases that fit the tort tale archetype of the neutral or positive defendant paired with the undeserving plaintiff defined as one making an illegitimate claim (11), one who is wholly negatively constructed over the course of the case (9), or one who possess both qualities (14).
Finally, the court solidifies the status of negatively constructed defendants via case outcomes. When defendants are wholly constructed negatively (118 cases), they lose their cases 92 percent of the time.Footnote 9 The underlying message here is that bad defendants get punished. Furthermore, of the 14 cases that involve a neutral or positive defendant paired with a plaintiff who is both negatively constructed and who has an illegitimate claim, 11 were dismissed and 3 resulted in partial awards. Thus, only three cases fit the perfect tort tale billing.
Taken collectively, these data illustrate that TV judge shows do not reinforce the tort reform view of the civil justice system. In fact, these shows overtly defy the tort tale form in many cases. The tort tale gathers power by casting the plaintiff as the bad guy and the defendant as the good or innocent guy. TV judge shows, however, project the image that defendants at least share the bad-guy status most of the time, and completely own it in over a third of the cases. Far from being the innocent victim dragged to court by the misguided and greedy plaintiff, the defendant in these shows is frequently demonized and, more often than not, justly made to pay. The TV judge plays the role of the hero by protecting the plaintiff and punishing the defendant.
Treatment of the State's Legal System
The final element in our examination of how TV judge shows interact with the tort tale and tort reform story is to look how these shows treat the traditional legal system. If the shows are going to feed into the tort reform narrative, two possible routes to doing are is to criticize the existing legal system as being bloated with formal rules that are manipulated by undeserving plaintiffs and their greedy lawyers, or to suggest that the system otherwise allows bad guys to go unpunished or unreformed. These shows largely steer away from doing so. When the formal legal system is invoked, it is often done so in a matter-of-fact way. That is, it is typically cited and tacitly assumed to be a valid source of legitimate evidence. As a result, the shows both subtly and overtly endorse the notion that the state's courts are effective.
For example, in the 50 cases in which the outside legal system is referenced as being involved in or related to the dispute or disputants at hand, 33 cite previous criminal records, arrests, and police reports or involvement.Footnote 10 These references are typically made in the process of constructing the litigants' character. For example, past convictions are signals that the litigant might be untrustworthy or irresponsible. A plaintiff's knowledge of the defendant's court record can actually be used against a plaintiff. Judge Judy, for example, denies a plaintiff's claim for this very reason, stating, “No, no, no—he doesn't owe you for anything. … Your contract with him … was [that] when he gets on his feet and straightens himself out he'll start paying you back. He's never going to be there, and you should have known that [because of his record of criminal recidivism]. … You took a chance and you lost” (JJ, 6/3, 4:30).
Sixteen cases also reference the civil law system's involvement in a similar noncritical and affirmative fashion—citing divorce proceedings, ongoing and future custody or child-care support payment disputes, and previous litigation regarding an aspect of the argument currently being presented.Footnote 11 Interestingly, even in the few conflicts in which the central issue or a related issue was already litigated in the state's courts, the television judges refrain from disparaging those courts for not settling the matter. In one case, for example, it is not deemed to be the state court's fault that the case returned to litigation. Rather, it is declared the plaintiff's fault for not having taken full advantage of the options that were available at the state court (JB, 6/17, 4).
The above references to the state's courts can be read as endorsements of the existing system. Each time the television court cites civil and criminal proceedings as forms of evidence and character evaluation, it is being presented as a legitimate source of information and thus subtly affirmed. The TV judges also overtly affirm the authority of the state's courts when they either directly encourage the litigants to use the system or say that they are going to pass a matter on to the state. For example, Judge Milian of The People's Court, suspicious of a business plaintiff's motives, says that she is going to refer a matter to the state attorney's office for further investigation and possible prosecution (6/24, 4:00). On the civil side, Judge Milian also has advised litigants to seek out the help of family court if they are unable to resolve related matters (6/22, 4:00). Again, these references would not take place unless the judge views the state's justice system as functional and efficacious.
One response to this, however, is that these shows are referencing the criminal justice system more than twice as often as they are the civil system. As a result, one cannot see their comments as countering the tort reform claim that the civil system is malfunctioning and fatally flawed. We have two responses to this critique. First, while it is true that TV judge shows reference the criminal system more often than they reference the civil system, we question whether the casual viewer draws a distinction between these systems. Rather, we assume that most viewers, like most citizens, tend to blur the court systems into one monolithic institution.
Second, while overt endorsements are rare and often subtle, it is worth noting what is not going on in these shows. In our sample there is not a single instance in which the TV judge attacks the state's legal system. Thus, while the affirmation of the system's efficacy may not be loud, the shows certainly do not perpetuate the tort reform line that the system is broken.
Conclusion
Reference Haltom and McCannHaltom and McCann (2004) argue that media attention to and acceptance of tort tales have bolstered conservative tort reform campaigns. Reference KaganKagan (2006) expresses doubt about whether the antitort law sentiment of tort tales is as pervasive in American legal culture as Haltom and McCann argue. This article joins the debate about the pervasiveness of antitort stories and attitudes in popular culture by examining whether, and to what extent, antitort or antilitigation sentiment is present in the narratives about the law offered by reality-based television judge shows.
Earlier studies by Reference KohmKohm (2006) and Reference EpsteinEpstein (2001) led us to hypothesize that TV judge shows would largely support an antitort, antilitigation message. This hypothesis was specifically grounded in Kohm's finding that these shows emphasize self-responsibility and warn against using the courts to settle personal problems, and Epstein's finding that judicial mockery of parties is often present. These findings suggest an antilitigation message and the potential adoption by TV judge shows of a modified tort tale format.
We conclude, based on observations of over 55 hours of Judge Judy, Judge Joe Brown, and The People's Court, that TV judge shows do not echo the tort tale's antitort and antilitigation sentiments. Rather, these shows present a view of the civil law system that deviates from the one offered by tort tales. This divergence occurs in terms of both content and structure. While these shows deviate from the tort tale message and form in many ways, we do not conclude, however, that TV judge shows present a strong counternarrative to tort tales.
The most significant differences between tort tales and TV judge shows center on three observations. First, TV judge shows' official voices (the judges and commentators) rarely overtly criticize or challenge the plaintiff's initial grounds for bringing a suit. This is different from tort tales, which have their genesis in illegitimate and outrageous claims. Second, tort tales portray plaintiffs as opportunistic individuals who use the legal system in bad faith. In the TV judge shows we observed, however, the majority of plaintiffs are not singled out for bad behavior or attempts to gain at the expense of sympathetic defendants and a complicit legal system. Finally, in TV judge shows, when defendants are portrayed as wrongdoers, they are almost always made to make amends, and when plaintiffs are shown to be flawed they typically win only a part of what they seek, if they win at all. All of the above are significant deviations from tort tales, which present undeserving plaintiffs successfully using a flawed legal system to win money from sympathetic defendants.
Thus, we find that the dominant themes of the antitort message do not permeate TV judge shows. In fact, these shows tell a strikingly different story about who is a good guy, who is a bad guy, and how people use courts. In spite of this, we believe that these shows do not provide a strong and effective popular counternarrative to the tort tale regime identified and tracked in Reference Haltom and McCannHaltom and McCann (2004). This article does not attempt to evaluate and explain the impact of TV judge shows on audience beliefs about torts and the legal system more generally. We do, however, address how the structure and content of the storytelling in these shows reduce their potential to present a strong counternarrative to tort tales.
Tort tales and TV judge shows are both forms of entertainment, and how they entertain influences their power to affect beliefs about the tort system. As forms of entertainment, both story types rely on engaging and amusing the audience. Tort tales revolve around the initiation of obviously bad claims and their eventual success, but they do not analyze the arguments of the parties or a judge or jury's perspective when listening to those arguments. Tort tales are engaging and powerful because they offend the audience's expectations about deserving litigants and the proper function of the justice system. This anger is cycled back and targeted at the law for allowing, and possibly encouraging, miscarriages of justice to occur.
TV judge shows, on the other hand, derive their dramatic force from the court's interaction with the parties during the argument stage of a case. The actual claim and judgment are largely beside the point. What matters is that the judge reproaches the ill-advised actions, bad manners, and foolish behavior of plaintiffs and defendants alike.
This realization explains why TV judge shows, in their current form, cannot offer strong counternarratives to tort tales. A substantive counternarrative to tort tales depends upon audiences' having and paying attention to information that specifically contradicts the greedy and inappropriate use of the courts seen in tort tales. Plaintiffs need to be specifically shown making good claims. They also need to be shown asking for justified awards. Defendants need to be clearly at fault. While these elements are included in TV judge shows, they are not highlighted. The shows do not encourage the viewer to concentrate on these elements because TV judge shows do not rely upon offending the audience's expectations of litigant and judicial roles for the sake of entertainment value.
We set out to determine whether, and to what extent, the sentiments expressed by tort tales pervade other popular narratives about law. We found that these sentiments are not echoed in TV judge shows. We also conclude that these shows do not constitute an effective counternarrative to tort tales. Law has only a minor role to play in TV judge shows because the legal system is merely a setting for a conflict, as opposed to being the subject of the moral of the story. The courtroom in TV judge shows is just a mechanism to provide a dispute, parties, and power relations—the ingredients for humiliation and discipline. A television producer could find other mechanisms that allow the audience to be amused in the same way.Footnote 12 The most relevant courtroom detail is that the arrangement endows the judge with authority over those present. The remaining courtroom details are just that—details—and thus can be downplayed. When the dramatic appeal springs from scolding and behavior that is severable from the court, as happens in TV judge shows, the audience is not encouraged to think further about the legal system.
