Why Tort Reform Myths Are So Difficult To Combat

A recent article in the Washington Post reports on a study by Norbert Schwarz, a University of Michigan social psychologist, that provides insight into why tort reform myths, and other false statements, are so hard to combat. According to the article:

The federal Centers for Disease Control and Prevention recently issued a flier to combat myths about the flu vaccine. It recited various commonly held views and labeled them either “true” or “false.” Among those identified as false were statements such as “The side effects are worse than the flu” and “Only older people need flu vaccine.”

When University of Michigan social psychologist Norbert Schwarz had volunteers read the CDC flier, however, he found that within 30 minutes, older people misremembered 28 percent of the false statements as true. Three days later, they remembered 40 percent of the myths as factual.

Younger people did better at first, but three days later they made as many errors as older people did after 30 minutes. Most troubling was that people of all ages now felt that the source of their false beliefs was the respected CDC.

More importantly, the article goes on to note that denials and clarifications, despite their intuitive appeal, paradoxically reinforce the belief. The more the fact is denied, the more the participants in the study believe the fact is true.

While the article doesn’t address how this phenomenon might work in the tort reform arena (it primarily uses the myth of an Iraq backing of 9/11 as its example), it explains why the tort reform movement has been so successful.  The tort reformers took the upper hand and spread half-truths (eg portions of the facts surrounding the McDonald’s coffee case) or outright falsities (the Stella awards), and those of us opposing tort reform simply respond with facts to set the record straight.  But instead of combatting the beliefs, we’re probably reinforcing them.

So what are we to do? Remain silent? No, the article cites another recent study that found that accusations or assertions that are met with silence are more likely to be believed as true.

Instead, the article suggests that the best response might be a pseudo response. It states:

Mayo found that rather than deny a false claim, it is better to make a completely new assertion that makes no reference to the original myth. Rather than say, as Sen. Mary Landrieu (D-La.) recently did during a marathon congressional debate, that “Saddam Hussein did not attack the United States; Osama bin Laden did,” Mayo said it would be better to say something like, “Osama bin Laden was the only person responsible for the Sept. 11 attacks” — and not mention Hussein at all.

So instead of simply offering facts and analyses rebutting the tort reform myths, we need to change the framework of the debate.  Now how to do that is the more difficult question.

The study probably has a lot of relevance to litigation. The study seems to support the old adage that the key to winning the battle is how you frame the issues.  In a trial, instead of rebutting the other side’s claims (which the study suggets may simply reinforce the beliefs), the better course is to try and frame the issues to your liking.

Thanks to Peter Kelly of Houston’s Moore & Kelly, PC for the nod to the article.

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