Java Jive: Genealogy of a Juridical Icon PDF

Java Jive: Genealogy of a Juridical Icon* MICHAEL McCANN,** WILLIAM HALTOM,*** AND ANNE BLOOM**** Law... has a symbolic life; it resides in the minds of Americans.... The influence of legal symbols is indirect but powerful... In its symbolic form, the law shapes the context in which American politics is conducted...It casts a shadow of popular belief that may be ulti- mately more significant, albeit more difficult to comprehend, than the authorities, rules, and penalties that we ordinarily associate with law. 1 Stuart A. Scheingold The accounts or narratives that people tell do more than relate events. They also make moral claims and to be intelligible must be related within conventional idioms and vocabularies of motive... [M]any stories are themselves hegemonic, helping to sustain the legitimacy of the taken-for-granted world.... 2 Patricia Ewick & Susan Silbey "Woman Burned By Hot McDonald's Coffee Gets $2.9 Million."3 Associated Press "When Stella Liebeck fumbled her coffee cup... she might as well have bought a winning lottery ticket... This absurd judgment is a stunning illustration of what is wrong with America's civil justice system." 4 San Diego Tribune Cosmo Kramer remarks about his suit for hot coffee burns: "Oh, I * The authors would like to thank the National Science Foundation for the generous grant, #SES-98 I 8581, that supported part of the research reported infra. The authors would also like to thank Judith Aks and Scott Lemieux for research assistance and John Brigham, Jeff Dudas, A. Susan Owen and Elliot Slotnick for their helpful comments on earlier drafts. ** Professor, Department of Political Science; Director, Society and Justice; and Director, Comparative Law and Society Studies (CLASS) Center; all at the University of Washington. University of Florida B.A. 1974; University of California at Berkeley Ph.D. 1983. *** Professor, Politics and Government, University of Puget Sound; University of Washington B.A. 1975, Ph.D. 1984. **** Mount Saint Mary's College B.A. 1983, University of Maryland J.D. 1988, University of Washington, Ph.D. expected 2002. I. STUART A. SCHEINGOLD, THE PoLmcs OF RIGHTS: LAWYERS, Pueuc POLICY, & PoLmCAL CHANGE xi (1974). 2. PATRICIA EwicK & SusAN S. SILBEY, THE COMMON PLACE OF LAw: STORIES FROM EVERYDAY LIFE 241 (1998) [hereinafter EwICK & SILBEY, THE COMMON PLACE OF LAw]. 3. Associated Press, Woman Burned By Hot McDonald's Coffee Gets$ 2.9 Million, Aug. 18, 1994 [hereinafter AP, Woman Burned]. 4. Editorial, Java Hijack, SAN DIEGO TRIBUNE, Aug. 20, 1994, at B6. 113 114 UNIVERSITY OF MIAMI I.AW REVIEW [Vol. 56:113 can be quite litigious." 5 Seinfield In the "Top Ten List - Blizzard Safety Tips" it is suggested: ". 8. Clear snow off driveway with just one scalding hot cup of McDon- ald's coffee." 6 Mark B. Greenlee "See, now this just makes me sick. A woman spills coffee on herself and gets three million dollars. I do that every day and what do I get? Coffee stains."7 Goodbye Lover The last seven epigraphs from varying venues of modern mass media all refer, in one way or another, to the legal case of Liebeck v. McDonald's Restaurants8 (hereinafter the McDonald's Coffee Case). Given its extensive and enduring presence in our popular media, the McDonald's Coffee Case probably supplies more common knowledge about the United States civil justice system than any other single law- suit.9 This article dissects that lawsuit as a heuristic case study to illus- trate how a dispute over hot coffee evolved into a cultural icon and staple of shared knowledge about the inefficiency, inequity, and irra- tionality of the American legal system. We document the complex ways in which this story entered into the public mainstream, analyze the social context and actors that made this seemingly trivial event into a powerful cultural icon, and suggest some important ways in which this phenome- non matters for legal practice and politics in the contemporary United States. THE ANALYTICAL FRAMEWORK FOR THE STUDY The analysis offered here derives from a larger project on the polit- ics of tort reform and the social construction of legal knowledge. Our 5. Seinfeld, The Maestro (NBC television broadcast, Oct. 5, 1995). 6. Mark B. Greenlee, Kramer v. Java World: Images, Issues, And Idols In The Debate Over Tort Reform, 26 CAP. U. L. Rev. 701, 702 n.8 (1997) (referring to a top ten list on The Late Show with David Letterman (CBS television broadcast, Jan. 8, 1996)) [hereinafter Greenlee, Kramer v. Java World]. 7. Goooave LoveR (Warner Bros. 1999). 8. Liebeck v. McDonald's Rest., P.T.S. Inc., No. CV-93-02419, 1995 WL 360309 (N.M. Dist. Ct. Aug. 18, 1994). 9. We obviously are making a big, unsubstantiated claim here. But we did try a small and limited test of the claim. We presented students on the first day of an undergraduate class in January 2001 with the Associated Press account of the McDonald's Coffee Case and confidentially surveyed them to discover how many had previously heard of the case. 110 of the 119 students, or 92.4%, answered affirmatively. They listed on average more than two types of popular cultural media (TV, newspapers, radio, movies, etc.) as the sources of their information. 2001] JAVA JIVE 115 general argument in the study identifies three dimensions of power at work in the production of knowledge about the civil legal system in contemporary American society. The first dimension concerns instru- mental tactics that advocates employ to support their claims in legisla- tures, courts, and popular media. The key actors in tort-reform contests include: Tort reformers - corporate-sponsored policy elites, intellec- tuals, public relations specialists, lobbyists, and their elected allies who disseminate simplistic, often fictional anecdotes or "tort tales" to warn the masses and elites about a litigation explosion by greedy, rights-obsessed plaintiffs and lawyers ripping off innocent business corporations.and undermining communal norms of civility; 10 Personal injury lawyers - who regularly represent injured victims in court and contribute huge amounts of money to fight tort reform in legislatures and before judges, but who offer at best feeble efforts to challenge damning anecdotes cir- culated by the reformers in popular culture. Academic social scientists - who employ sociolegal studies of civil litigation disputing patterns to challenge tort reform- ers' simplistic claims in intellectual forums but remain mostly unknown to the mass public and even its political representatives. 11 Of greatest relevance to this particular paper are the ways in which tort reformers' strategically savvy and largely uncontested efforts to sat- urate American popular culture with images of greedy plaintiffs and a legal system gone awry have contributed to the general social context in which the McDonald's Coffee Case acquired great symbolic signifi- cance. We will address this aspect of the story toward the end of our analysis. The second dimension of our study, which is more centrally emphasized in this paper, addresses the institutional practices of the mass media, especially newspaper reporting of civil litigation activity. Our approach draws heavily on respected social science analyses regard- ing how journalists select and represent events for public consumption. 10. For a portrait of tort reformers, see 1EAN STEFANJC & RICHARD DELGADO, No MERCY: How CONSERVATIVE THINK TANKS AND FOUNDATIONS CHANGED AMERICA'S SOCIAL AGENDA ( 1996). On their strategy to saturate the public space with tort tales and shape public opinion, see Marc Galanter, An Oil Strike in Hell: Contemporary Legends About the Civil Justice System, 40 ARIZ. L. REv. 717 (1998) [hereinafter Galanter, Oil Strike]; MARK A. SMITH, BusINEss & DEMOCRACY IN AMERICA: PuBLIC OPINION, ELECTIONS, & PoLmCAL POWER (2000). 11. The literature from socio-legal scholars is abundant. For one impressive law review article, see generally Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 Mo. L. REV. 1093 (1996). 116 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 56:113 In particular, analysts emphasize how the media dramatize, personalize, fragmentize, and normalize narratives of events and relationships, thus reconstructing complex social relations and policy issues in simplistic, systematically skewed ways. Our own aggregate content analysis (not reported herein) shows how news coverage of tort litigation by reporters relying on these routine institutional conventions produces a consistent portrait of legal action that parallels in form and substance the selective, simplistic anecdotal portrayals of civil legal practice disseminated by tort reformers. 12 When one adds to such patterns in coverage evidence that tort reformers actively work to spin events for reporters and are over-represented as sources in news reports, it is not surprising that media coverage generally has echoed tort reform advocates' accounts of the legal system and made them a staple of conventional wisdom in American legal culture. The third dimension of our study looks at the ideological propensi- ties in American society that constitute the terrains of shared meaning in which the above-noted instrumental contests and institutional practices have developed. 13 Specifically, we are interested in how powerful, if indeterminate, norms of individual responsibility and suspicion toward formal state intervention in socio-economic life figure into the dominant social constructions of tort law practice. 14 In particular, we refer to the "ethic of individualism" that "emphasizes self-reliance, toughness, and autonomy - qualities that are posed as being central to progress and 'getting along' in a market economy." 15 Indeed, we shall show in com- ing pages how both popular news accounts and conservative pundits together have reinforced inherited inclinations to focus on individual irresponsibility, negligence, and greed of plaintiffs rather than on corpo- rate accountability, state obligations to secure citizen welfare, or the lim- 12. Judith Aks, Anne Bloom, William Haltom, and Michael W. McCann, Hegemonic Tales and Subversive Statistics: A Twenty-Year Study of News Reporting about Civil Litigation (unpublished paper presented at the 2000 meeting of Law and Society Association, Miami, Florida) (on file with authors) [hereinafter Aks, Bloom, Haltom, & McCann, Hegemonic Tales and Subversive Statistics]. 13. By "ideology," we do not mean a grand, coherent, cohesive body of abstract ideas that determines action. Rather, we have in mind something similar to what Ewick and Silbey outline: a complex process that shapes social life by inviting as well as delimiting the thinking and imagination of subjects. "Ideology derives from and reflects back upon shared experiences, particularly those of power; it is inextricably tied to practical consciousness." Ew1cK & SrLBEY, THE COMMON PLACE OP LAW, supra note 2, at 225. 14. On how different versions of individualism either support or stigmatize rights claiming in personal injury disputes, see generally David Engel, The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Town, in CAROL J. GREENHOUSE, BARBARA YNGVESSON, & DAVID M. ENGEL, LAW AND COMMUNITY IN THREE AMERICAN TowNs (1994). See also David M. Engel, The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Town, 18 LAw & Soc'y REv. 551 (1984). 15. GREENHOUSE ET AL., supra note 14, at 173. 2001) JAVA JIVE 117 its of our regulatory/social insurance systems as the key issues at stake in civil legal contests. As such, the emphasis on individual choices and volitional contracts that are sewn into American law are confirmed and reinforced by the stories that we, as Americans, tell ourselves about the law and the law's promises. This will be illustrated not only by the individualized, decontextualized, morally simplistic representations of the McDonald's scalding coffee dispute in popular culture, but even fur- ther by the triumph of accounts that essentially reversed the official legal findings of responsibility and blamed the victim for her severe injuries, not to mention her excessive greed. 16 Our analysis of the McDonald's Coffee Case incorporates all three analytical dimensions. We emphasize systematic selectivity in news coverage narratives regarding a specific liability case - that is, institu- tional practices. We show some of the evidence of effective spin on the coffee scalding incident by proponents of tort reform as well as ineffec- tively articulated responses among opponents of tort reform - that is, instrumental tactics. Apparent throughout this case study will be the pervasive cultural power of tales portraying irresponsibly greedy liti- gants and a legal system that fails to apportion individual responsibility justly. In short, our analysis attempts to provide insights into the com- plex, multi-dimensional process by which narrative constructions in the courtroom, the press, and popular culture transformed the complaint of a badly burned grandmother into an icon for runaway litigiousness. While we begin our analysis with our own detailed account regard- ing the coffee spill incident and the evolution of the legal dispute, we want to make clear that our primary aim is not to contrast later popular- ized stories with what "actually happened." Nor does our account pre- sume that either the specific verdict or the settlement in the McDonald's Coffee Case was correct or just. Rather, our greatest interest is in exploring how some story lines (such as those focusing on blame) about law came to dominate our culture rather than other story lines and spe- cifically why so little of the interpretive account that won at trial sur- vived in the media while contrary accounts flourished. As such, our enterprise is an explicitly social constructionist analysis that emphasizes both the substantive content of cultural stories or narratives about law and the complex processes by which they rise to prominence over time. 17 16. There is no small irony in the fact that the same legal logic that individualizes and commodifies the mechanisms of relief for injury can be turned toward characterizing rights claimants as rapacious and irresponsible individuals. See Richard L. Abel, Torts, in THE Pouncs OF LAw: A PROGRESSIVE CRITIQUE 445 (David Kairys ed., 3d ed. 1998) [hereinafter Abel, Torts]. 17. This is to say we are not offering a "gap" study regarding the distance between the law on the books and legal practice. Rather, we are attempting to expand exploration regarding how 118 UNIVERSITY OF MIAMI IA W REVIEW [Vol. 56: 113 Moreover, we recognize that our study has potentially important implications for critically evaluating recent political contests over tort reform proposals. Specifically, our account suggests that the cartoonish construction of the legal dispute over spilled coffee that raced through- out American culture during the late 1990s rendered virtually impossible any intelligent deliberation about the case's inherent reasonableness or justice, much less its larger policy significance for legal reform. Our argument, however, neither depends on nor seeks to demonstrate the proposition that the alleged "litigation explosion" or "legal lottery" sys- tem and triumph of irresponsible rights-claiming that the McDonald's Coffee Case came to symbolize lacks empirical confirmation, although we generally are convinced by social science scholarship that it does. 18 Rather, our inquiry looks beyond specific policy matters to much broader concerns about the dynamics of legal culture. Beyond elite pol- icy contests, we suspect that the stories circulated by tort reform advo- cates and reproduced to some degree by popular media more importantly shape the very perceptions and practices, or legal consciousness, 19 of citizens in their various roles as legal actors - e.g., as real and potential litigants, jurors, lawyers, judges, risk managers, and the like. In short, the stories that routinely circulate about the law shape the very practices of law in important ways. We will offer a few thoughts and suggestive evidence regarding this broadly conservative cultural impact at the con- clusion of our analysis. stories in and about law develop cultural power and the implications of these processes for legal understanding and practice. 18. See Marc Galanter, The Tort Panic and After: A Commentary, 16 JusT. SYs. J. l, 3 (1993) [hereinafter Galanter, Tort Panic]; Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENv. U. L. REv. 77 (1993) [hereinafter Galanter, News from Nowhere]; Marc Galanter, The Day After the Litigation Explosion, 46 Mo. L. REv. 3 (1986); Marc Galanter, Reading the landscape of Disputes: What We Know and Don't Know (And Think We Know) About Our Allegedly Contentious and litigious Society, 31 UCLA L. REV. 4 (1983) [hereinafter Galanter, Reading The landscape]; Michael Rustad, In Defense of Punitive Damages in Products Liability: Testing Tort Anecdotes with Empirical Data, 78 low AL. REv. 12, 15 (1992); Michael Rustad & Thomas Koenig, The Historical Continuity of Punitive Damages Awards: Reforming the Tort Reformers, 42 AM. U. L. REv. 1269, 1307-08 (1993); Michael J. Saks, Do We Really Know Anything about the Behavior of the Tort Litigation System -And Why Not?, 140 U. PA. L. REv. 1147, 1245 (1992) [hereinafter Saks, Do We Really Know Anything]; Michael J. Saks, Malpractice Misconceptions and Other Lessons about the litigation System, 16 JusT. SYs. J. 7 ( 1993). Our larger project will summarize in detail the many studies relevant to claims about the hyperlitigious society. 19. The term "legal consciousness" "refers to the ongoing, dynamic process of constructing one's understanding of, and relationship to, the social world through use of legal conventions and discourses." MICHAEL McCANN, RIGHTS AT WoRK: PAY EQUITY REFORM AND THE PoLrrics OF LEGAL MOBILIZATION 7 (1994). See also EwICK & SILBEY, THE COMMON PLACE OF LAW, supra note 2. 2001] JAVA JIVE 119 THE DEVELOPMENT OF A LEGAL DISPUTE We begin with a detailed review of the legal dispute over hot coffee itself. Our case study will be organized generally in terms of the disput- ing approach familiar to "law and society" scholars. As such, we begin with the initial incident and then trace the evolution of the dispute through the stages of grievance, claiming, lawyer involvement, filed claims, trial, and post-trial settlement. Along the way, we will empha- size the key facts and interpretive accounts by which the dispute was waged among the growing list of actors. 20 A GRrnv ANT BECOMES A CLAIMANT: Ms. LIEBECK SEEKS RECOMPENSE21 On February 27, 1992, Stella Liebeck purchased a cup of coffee from a drive-through window at an Albuquerque McDonald's. At the time, the seventy-nine year-old Ms. Liebeck had recently retired as a department store salesclerk in Tucson and moved to Santa Fe to live with her daughter, Nancy Tiano. Ms. Liebeck was sitting in the passen- ger seat of a Ford Probe driven by her grandson, Chris Tiano, a college graduate and assistant golf pro. They had traveled to Albuquerque to drop off Ms. Liebeck's son, Jim (uncle of Chris Tiano), at the airport for an early flight. Mr. Tiano pulled into McDonald's for breakfast shortly after 8:00 am, where Ms. Liebeck ordered an Egg McMuffin value meal and the coffee. After her grandson pulled the car away from the window and fully stopped by a curb in the parking lot, Ms. Liebeck tried to remove the cup's lid to add sugar and cream. Lacking a flat surface inside the small car, she placed the coffee between her legs to free up both her hands for prying off the lid. As the lid came off, the Styrofoam cup tipped, spilling all the coffee into her lap, where it was rapidly soaked up by her sweatpants.22 Ms. Liebeck screamed in pain, but Mr. Tiano did not understand, later relating that it at first seemed to be "no big deal." "When it happened, I thought, well, you know, we spilled a cup of coffee; it's basically our fault. You know it was our clumsiness that spilled the coffee." After all, spilling coffee or some other hot liq- 20. See generally Richard E. Miller & Austin Sarat, Grievances, Claims, and Disputes: Assessing the Adversary Culture, 15 LAW & Soc'y REV. 525 (1980); Lynn Mather & Barbara Yngvesson, Language, Audience, and the Transformation of Disputes, 15 LAW & Soc'y REV. 775 (1980). 21. The details of the Liebeck v. McDonald's Restaurant case come from the trial transcript. Record, Liebeck v. McDonald's Rest., P.T.S., Inc., No. CV-93-02419, 1995 WL 360309 (N.M. Dist. Ct. Aug. 18, 1994) (on file with authors) [hereinafter Liebeck Record]. The record is an electronic file and page-cites are unavailable, however, the transcript is on file with the authors. 22. Ms. Liebeck's initial letter to McDonald's estimated that the spill took place less than four minutes after the coffee was served to her. (on file with author) [hereinafter, Liebeck letter]. 120 UNIVERSITY OF MIAMI I.AW REVIEW [Vol. 56:113 uid on oneself is a common occurrence; "It was just a scald," he said repeatedly in his deposition. The grandson then proceeded to drive out of the parking lot, until a minute later when his grandmother became quite nauseous, and he sus- pected she was in shock. Now realizing that the incident was serious, he pulled over to the side of the road, helped her out of the car, aided her in removing the sweatpants, and covered her with a sheet from the car's trunk. Mr. Tiano then headed for the nearest hospital, which was full, and then made his way to a second hospital, where Ms. Liebeck was admitted. Doctors determined that the hot coffee had caused third degree bums on her thighs, buttocks, genitals, and groin area - about 6% of her body - and lesser bums over 16% of her body.23 Third degree bums are extreme injuries in that they penetrate through the full thickness of the skin to the subcutaneous fat, muscle, and bone. Ms. Liebeck stayed in the hospital for over a week, where she underwent treatment by a vascular surgeon and eventually was subjected to a regi- men of very painful skin grafts. The surgeon, Dr. Arredondo, reported that her injuries added up to one of the worst bum cases from hot liquids he had ever treated. Due to considerable medical costs, Ms. Liebeck left the hospital earlier than recommended and had to be driven back to the doctor for medical treatment many days by her daughter, who was forced to take time off from work. Ms. Liebeck suffered great discom- fort, lost over twenty pounds, was permanently disfigured, and was par- tially disabled for up to two years following the accident. A member of a long-time Republican family, Ms. Liebeck had never filed a lawsuit in her life and did not immediately seek relief with the aid of a lawyer, judge, or jury. 24 But she also was aware that a simple coffee spill should not have caused such extensive injuries. Ms. Liebeck explained her grievance in a letter sent to McDonald's Restau- rants on March 13, 1992, two weeks after the incident: It seems to me that no person would find it reasonable to have been given coffee so hot that it would do the severe damage it did to my skin. Obviously, it was undrinkable in that it would have burnt my mouth. It seems that the reasonable expectation for a spilling acci- dent would be a mess and a reddening of the skin at worst. Although I did the spilling, I had no warning that the coffee was that hot. It should never have been given to a customer at that temperature. 25 In short, while acknowledging that she was responsible for the acci- 23. RALPH NADER & WESLEY J. SMITH, No CONTEST: CORPORATE LAWYERS & THE PERVERSION OF JusncE IN AMERICA 268 (1996) [hereinafter NADER & SMITH, No CONTEST]. 24. Liebeck letter, supra note 22. 25. Id. 2001] JAVA JIVE 121 dent, Ms. Liebeck' s initial grievance was translated into a claim about a dangerously defective product that caused severe injuries for which the McDonald's corporation was liable. If routine coffee spills cause such damage and disability as experienced in this episode, after all, most peo- ple would also be partially disabled, subjected to considerable pain, and permanently disfigured during their lifetime. Still, Liebeck's initial let- ter made it clear that she had "no intention of suing or asking for unrea- sonable recompense." 26 She asked for three responses from the corporation: ( 1) to check the coffee machine and coffee-making process to see if it was faulty; (2) to reevaluate the temperature standards for coffee served to customers, for others must have been severely injured as well; and (3) to cover medical, recuperation, and incidental costs related to her injuries, which initially were left unspecified because the medical treatment was far from over at that time. 27 Later estimates for incurred costs have varied in different accounts, but they hovered around $10,000-15,000 for medical bills, plus other directly related expendi- tures, for a total of around $20,000. After six months of her grievance without the counsel of a lawyer, however, McDonald's refused her requests for a change of policy and offered only $800 for personal compensation. A CLAIMANT BECOMES A LITIGANT: LA WYERS ATTEMPT TO SETTLE THE DISPUTE Frustrated by her inability to secure compensation for the physical and financial harm wrought by the scalding accident, Liebeck retained Kenneth R. Wagner and Associates, an Albuquerque law firm, in the fall of 1992. Through a legal assistant at the firm, Wagner learned of S. Reed Morgan, a Houston attorney who had settled a similar case against McDonald's involving scalding coffee (for $27,500) in the late 1980s. Morgan was contacted and agreed to take on Liebeck's cause, in large part because he had been angered by what he saw as callous indifference displayed by the mega-corporation in the previous dispute. Morgan quickly issued a formal request for $90,000 to cover Liebeck's medical expenses as well as pain and suffering. His amended claim fared no better than Ms. Liebeck's original claim, however, and was dismissed by McDonald's. Mr. Morgan filed a formal complaint on behalf of Ms. Liebeck in the Second Judicial District Court, County of Bernalillo, New Mexico. 28 26. Id. 27. Id. 28. Complaint, Liebeck v. McDonald's Rest., P.T.S., Inc., 1995 WL 360309 (N.M. Dist. Ct. 1994) (No. CV-93-02419). 122 UNIVERSITY OF MIAMI U W REVIEW [Vol. 56: 113 The complaint alleged that the coffee that Liebeck purchased from McDonald's in 1992 was defective in two regards: First, it was exces- sively, dangerously hot; Second, inadequate warnings were provided regarding the risks posed by the hot coffee. The key legal claim was that the coffee breached warranties of fitness for its intended purpose of consumption under the Uniform Commercial Code. 29 Along with the claim for compensatory damages, punitive damages were requested on the reasoning that McDonald's sold the coffee with reckless indifference to the safety and welfare of its customers. Once the trial date was set, Mr. Morgan offered to settle the case for $300,000, with no success. He later acknowledged that he would have settled for rather less, perhaps as little as half as much. Just a few days before the trial, Judge Robert H. Scott ordered the disputing parties to participate in a mediation session. Based on earlier cases and a projection of what a jury would likely award, the mediator recommended a settlement of $225,000. Once again, however, McDon- ald's refused the opportunity to negotiate a settlement. The trial com- menced in the second week of August 1994. A LITIGANT BECOMES A PLAINTIFF: ADVERSARIES FRAME THE AccmENT IN LEGAL TERMS The trial produced relatively few important disagreements regard- ing the facts of the case. For example, McDonald's did not contest that the coffee was very hot or that hot coffee can severely scald customers. Conversely, Ms. Liebeck did not contest that she spilled the coffee on herself or that she was responsible for the accident. While the adversa- ries disagreed about some details, those issues by themselves could not determine a just outcome. Rather, the case turned on contending interpretive arguments, or narratives, devised by each side to select, support, and make sense of the evidence in a coherent, compelling way. Just as in larger policy con- tests, lawyers in legal proceedings use narrative techniques to construct events in ways that are most favorable to their clients. Indeed, civil disputes typically can be understood in term of contending "causal sto- ries" that attempt to identify different levels of responsibility or fault among different parties. 30 We identify below two very general interpre- tive accounts projected by lawyers for the two parties in the McDonald's Coffee Case. 29. Implied Warranty: Merchantability & Usage of Trade, U.C.C. § 2-314 (1977). 30. See generally DEBORAH A. STONE, Poucy PARADOX & PoLITICAL REASON 147-65 (1988); JoHN M. CONLEY & WILLIAM M. O'BARR, RULES VERSUS RESPONSIBILITY: THE ETHNOGRAPHY OF LEGAL DISCOURSE (1990). 2001] JAVA JIVE 123 THE DEFECTIVE PRODUCTS LIABILITY NARRATIVE Attorneys for Ms. Liebeck systematically labored to present the jury with a coherent and compelling interpretation of the scalding acci- dent that focused on the inordinately hot coffee produced and sold by McDonald's. This Defective Products Liability Narrative combined basics of products liability law with supporting themes that suited the circumstances of the accident to legal categories. The relevant products liability law came straight from the Uniform Commercial Code's implied warranties of merchantability and fitness. Attorney Morgan confirmed that the plaintiff had relied on very basic business law: "The heart of the case [was that] the product was defectively designed... It wasn't a negligence case. We didn't even plead negligence. Just prod- ucts liability... The individual responsibility is not the issue. The prod- uct is unreasonably dangerous." 31 Media coverage would consistently state that Ms. Liebeck believed that the spill was McDonald's fault. Technically speaking, she claimed instead that McDonald's had failed to abide by standards that many or most businesses must meet. 32 To complement the implied warranties, Plaintiff Liebeck marshaled supporting themes. The first theme acknowledged that coffee spills were routine events but insisted that Liebeck' s injuries were extremely atypical due to McDonald's dangerously hot coffee. This factual con- tention would place McDonald's in conflict with the implied warranties discussed above. Liebeck's attorney established this conflict via a num- ber of points. He presented as evidence a McDonald's manual specify- ing that coffee should be made at temperatures between 195 and 205 degrees and served at temperatures between 180 and 190 degrees. Mor- gan then introduced testimony by two experts - Dr. Kenneth Diller, Chairman of Mechanical Engineering and Bio-Mechanical Engineering at the University of Texas and Dr. Charles Baxter of Southwestern Med- ical School and the Baxter Wound Center - regarding the severe bums that such hot coffee produces. Specifically, they confirmed that liquids between 180 and 190 degrees cause full thickness, third degree, highly painful and disfiguring bums within 2-7 seconds, which in many cases is before spilled coffee can be wiped off or clothing can be removed. The time that it takes for liquids to bum skin with equal severity increases greatly as the temperature descends toward 130 degrees. To illustrate 31. Interview with S. Reed Morgan, in San Antonio, Tex. (Mar. 23, 2000). 32. We do not mean to be unfair to mass media. Generalist reporters should not be expected to understand tort law, perhaps. We suggest two propositions however: (I) that excusing the dissemination of misinformation holds reporters to such a low standard as to be self-defeating; and (2) if reporters may not be expected to know, learn, or report settled law, inadequacies of reporting and the ready availability of misinformation are inevitable. 124 UNIVERSITY OF MIAMI IA W REVIEW [Vol. 56:113 the point, Ms. Liebeck testified about the extent of her painful injuries, and graphic pictures of her severely burned and scarred skin were intro- duced along with doctor's statements to show the damage that the extremely hot coffee caused in only a few seconds. Beyond the plaintiff and her experts, a McDonald's quality assurance supervisor himself admitted that McDonald's served coffee that would scald: REED MORGAN: [Y]ou know, as a matter of fact, that coffee is a hazard, selling it at 180 to 190 degrees, don't you? CHRISTOPHER APPELTON: I have testified before, the fact that this coffee can cause burns. MORGAN: It is hazardous at this temperature? APPLETON: At that high temperature the coffee is a hazard. MORGAN: If customers attempt to swallow that coffee, isn't it a fact that it will scald their throat or esophagus? APPLETON: Yes, under those conditions, if they could get the coffee in their throat, that could happen, yes....33 A second theme in the products liability frame was that most cus- tomers are not aware of this danger posed by coffee served at these temperatures. This theme was important to underscore that McDonald's was vending an unfit product to customers who could not be presumed to know about or make provision for the coffee's extreme temperature. Morgan used two studies - one by a Restaurant Advisory Services con- sultant showing that home coffee makers produce coffee at 158-168 degrees and hold it at 150-157 degrees after three minutes; the other from his earlier case showing that McDonald's served their coffee at temperatures well higher than most other fast food restaurants - to demonstrate that McDonald's coffee was significantly hotter than most coffee that consumers make for themselves or purchase elsewhere. This was critical, for while Ms. Liebeck spilled the coffee on herself, she had no reasonable expectation that it would be so unusually hot and danger- ous. Another expert for the plaintiff, Lila Laux, testified in support of this contention. 34 The third critical theme was that McDonald's knew what their cus- tomers did not know about these dangers from its hot coffee. Critical facts offered in evidence for this position included that McDonald's had received over 700 complaints about hot coffee in the previous decade 33. NADER & SMITH, No CONTEST, supra note 23. 34. Greenlee, Kramer v. Java World, supra note 6, at 720. The deposition by Mr. Tiano, Ms. Liebeck's grandson, is evidence that most consumers do not know of the dangers at stake. He indicated he could not imagine the severity of injury suffered by his grandmother even while witnessing her screams of pain. Reed Morgan restated the point concisely: "Why would you blame a person using a dangerous product for their behavior if they are not abusing the product? That's a foreseeable risk of harm, dumping a cup of coffee in your lap." Interview with S. Reed Morgan, in San Antonio, Tex. (Mar. 23, 2000). 2001] JAVA JNE 125 and had paid out nearly three quarters of a million dollars to settle such claims, including some payments of up to $66,000. The case settled by Reed Morgan in the late 1980s, in which Morgan presented graphic evi- dence of third degree bums, was just one of such complaints. Against this contention, Dr. Robert Knaff, a safety consultant for McDonald's, offered that 700 complaints of bums were statistically irrelevant, "basi- cally trivially different from zero," relative to the large number of cus- tomers served. 35 Finally, Liebeck's attorneys alleged that McDonald's displayed reckless indifference to customers' safety by doing nothing either to reduce the heat of coffee known to be dangerous or to provide adequate warning to customers. Morgan noted that a message "CAUTION: CONTENTS HOT" appeared on the cup, but it was difficult to read because it was the same color and size as the ornamental trim on the cup. 36 McDonald's admitted that the message was intended more as a "reminder" than as a warning. What is more, the plaintiffs urged, the motive that trumped the corporation's concerns for safety was well doc- umented: the desire to lure more customers, to sell more coffee, and to earn greater profits. By emphasizing this pecuniary motive, the plain- tiffs attempted to strip the mega-corporation of its family-friendly mar- keting mask and to expose the fearsome Goliath that the David-like plaintiff was challenging. More than plaintiffs arguments alone supported this final theme. The aforementioned Christopher Appleton, having testified that McDon- ald's coffee was not "fit for consumption" when served, further admitted that he had been shown the injurious effects of hot coffee in the earlier case presented by Reed Morgan, but the company still did nothing. REED MORGAN: Isn't it a fact that back in 1988, when I showed you the pictures of the young lady that was burned in that situation, that you were appalled and surprised that coffee could cause that kind of burn? CHRISTOPHER APPLETON: Yes, I had never seen photographs like that before. MORGAN: All right. In those six years, you still have not attempted, yourself, or know of anyone within the corporation that has attempted to find out the rate of speed, the lack of margin of safety in serving coffee at this temperature right.... 35. Andrea Gerlin, How Jury Gave $2.9 Million for Coffee Spill, McDonald's Callousness was Real Issue, Jurors Say in Case of Burned Woman, PITTSBURGH PosT GAZETTE, Sept. 4, 1994, at B2 [hereinafter Gerlin, How Jury]. 36. Grandson Mr. Tiano said in his deposition that there was not a warning on the cup, underlining that the words were difficult to identify and read. Liebeck Record, supra note 21. 126 UNIVERSITY OF MIAMI IA W REVIEW [Vol. 56:113 APPLETON: No, we have not. 37 All four of these themes were framed as key elements in the legal claim that, under the Uniform Commercial Code, McDonald's coffee represented an unreasonably dangerous product sold in breach of the implied warranty of fitness, and that the corporation thus was liable for injuries suffered by Ms. Liebeck. As we have seen, McDonald's quality assurance supervisor conceded that McDonald's coffee was not fit for human consumption when poured. He further acknowledged that the McDonald's corporation did not have a systematic mechanism for informing itself about the severity of injuries caused by its products or for determining how many injuries would justify adjusting the heat of the coffee served. Most such information was only known by the com- pany's insurance agency. 38 Mr. Appleton unabashedly acknowledged that "there are more serious dangers in restaurants" than hot coffee and "there is no current plan to change the procedure [for coffee making] that we're using in that regard now." Reed Morgan presented all such testimony to support his call for punitive damages to punish the callous indifference of the family restau- rant chain toward its customers. The closing argument by the plaintiff's lawyers noted that McDonald's sells over a billion cups of coffee a year, generating revenues of $1.35 million each day from such coffee, and that payment of two days' revenue from coffee might constitute a rea- sonable basis for punitive damages. As attorney Ken Wagner later sum- marized, "We said in order to send a message, you have to penalize them financially before the message will get to corporate headquarters in respect to serving coffee at this temperature." THE INDIVIDUAL RESPONSIBILITY NARRATIVE Defendant McDonald's had conceded many facts at the core of the plaintiffs products liability frame, but countered by emphasizing differ- ent facts framed in an alternative interpretive story about the incident. The defendants advanced what we label the Individual Responsibility Narrative to state their case. The basic logic of this story line is that people spill coffee on themselves all the time but do not expect others to take responsibility for the outcomes, however terrible. In short, a com- monplace event like a coffee spill merited a commonsense response, the 37. NADER & SMITH, No CONTEST, supra note 23, at 271. 38. Morgan told us in an interview that he learned this from his earlier action against McDonald's. "Unless there's some reason for somebody that works for the corporation to get intimately involved, they're probably misinformed. They really don't understand what they're doing to people." Interview with S. Reed Morgan, San Antonio, Tex. (Mar. 23, 2000). Records of attorneys' efforts to obtain information from within the corporate bureaucracy support the inadequate information system in the company. 2001) JAVA JIVE 127 same one Mr. Tiano immediately had: The spill was Grandmother's fault, not McDonald's. The defense advanced specific themes that organized evidence to support this approach. First, the defense appealed to the ethic of indi- vidual responsibility deeply rooted in American culture. Ms. Liebeck, not McDonald's, spilled the coffee that resulted in injuries; she must accept the blame. Ms. Liebeck' s own letter of March 13, admitting that she had spilled the coffee on herself, was particularly relevant. Noting that the placement of coffee between her knees while sitting in the car and failing to remove her clothes immediately were "unwise," defense attorneys insisted that Ms. Liebeck should accept responsibility for the lamentable accident. A second theme was directly aimed at challenging the plaintiffs key scientific point regarding proximate cause of the injury. McDon- ald's presented an affidavit from Turner M. Osler, a bum specialist, con- tending that Ms. Liebeck might have received the same bums if the coffee had been less hot, as low as 130°F. 39 Major reasons for the bad bums in this case, the expert testified, included Ms. Liebeck's advanced age and her failure to remove her clothing soaked with the coffee in a timely fashion. A third theme turned on the question of "Why pick on us?" The attorneys for McDonald's argued that systematic marketing studies, presented as evidence, showed that customers prefer their coffee very hot. In fact, this was one of the most appealing traits of McCoffee. One leading reason is that most customers do not drink the coffee immedi- ately after purchase at drive-through windows, but typically wait until they arrive at the office or home. At the same time, it was shown that some other restaurants, and especially those leading in coffee sales, tend to serve their coffee at nearly the same high temperature as McDonald's. Indeed, McDonald's provided evidence that their specifications followed industry standards. Experts for the defense also testified about the highly quality of insulation in their cups and the special plastic tab on the tops of coffee cups that reduce the chance of burning. Far from being insensitive to customers, the defense contended, McDonald's hot coffee served in state-of-the-art containers was just what the public wanted. Finally, the defense attorneys played on a theme at the heart of the tort reform campaign, implying that Ms. Liebeck' s claim was an exam- ple of litigious plaintiff seeking damages for harms that she, however unfortunate, caused to herself. Attorney Tracy McGee summarized this 39. The plaintiffs challenged that Mr. Osler left out of his account the significantly varying amounts of exposure time required for extreme burns by liquids at different temperatures. 128 UNIVERSITY OF MIAMI I.AW REVIEW [Vol. 56:113 aspect of her case to Newsweek reporters. "The real question... is how far you want our society to go to restrict what most of us enjoy and accept." 40 Ms. McGee fended off the plaintiff's attempt to introduce evidence from previous scalding litigation by deriding the claims: "First person accounts of sundry women whose nether regions have been scorched by McDonald's coffee might well be worthy of Oprah... But they have no place in a court of law." 41 As such, the themes of the defense supported individual responsibility with notions of fairness and common sense, as opposed to the strict letter of business law. A PLAINTIFF BECOMES A VICTOR: JURORS ADOPT MosT OF Ms. LIEBECK's ACCOUNT After a tedious trial over seven days, the jurors took but four hours to reach their verdict: McDonald's Restaurants owed Ms. Liebeck $160,000 in compensatory damages and about $2,700,000 in punitive damages. In calculating compensatory damages, the jury synthesized the contrasting claims and frames into a slightly mixed verdict. The jury agreed with the defense that Ms. Liebeck was responsible for her own accident to a degree. However, the jury fixed the degree of the plain- tiff's contribution to the accident at 20%. Assessing the expenses, pain and suffering, disfigurement, and disability consequent to the accident, jurors awarded compensatory damages of $200,000 for the accident. Since they held Ms. Liebeck to be one-fifth responsible for her accident, the jury then discounted the compensatory award by $40,000 (one-fifth of $200,000), which left the plaintiff $160,000 in compensatory dam- ages. Jurors had come to see McDonald's coffee as a product made hazardous by extreme heat, a dangerous brew for which the corporation had to bear primary liability even if Ms. Liebeck was partly responsible for her own injuries. Beyond specific damages, jurors had come to see the Liebeck epi- sode as an example of a stream of dangerously hot coffee flowing from drive-thrus and across counters. Jurors accepted the plaintiff's charac- terization of McDonald's and other outlets that serve steaming coffee as recklessly indifferent to consumers' safety. To dissuade McDonald's and others from continuing their willful indifference, the jury granted the punitive award - damages designed to deter a wrong-doer from continued bad conduct - recommended by Ms. Liebeck's lawyers: $2.7 million, the number based on an estimate of two days' revenues from coffee at McDonald's restaurants nationwide. Remarkably, the award 40. Arie Press, Ginny Carroll & Steven Waldman, Are Lawyers Burning America?, NEWSWEEK, Mar. 20, 1995, at 35 [hereinafter, Press, Are Lawyers]. 41. Gerlin, How Jury, supra note 35. 2001] JAVA JNE 129 that would create such alarm among editorialists and other professional chatterers had been scaled back from several jurors' arguments for awarding a full week's coffee grosses at McDonald's, around $9.6 million! As always, public indications of the logic behind the jurors' judg- ment were sparse. Still, remarks on the record, along with the award, confirm that jurors were convinced by the key themes of the plaintiffs narrative about corporate liability for a defective product. Jurors who spoke to interviewers frankly admitted that they initially thought the case was a waste of their time. For example, jury foreman Jerry Goens told a reporter that he "wasn't convinced as to why I need to be there to settle a coffee spill," implying his predisposition toward the "individual responsibility" narrative of the defense before the trial. 42 Another juror felt insulted: "The whole thing sounded ridiculous to me."43 In contrast, the plaintiff's attorneys' construction of the case changed their minds. Several jurors commented on the strength of the scientific evidence regarding how quickly coffee bums skin at 180 degrees as well as the graphic photos of Liebeck's injuries. When juror Jack Elliott learned of Liebeck' s seven days in the hospital and of her skin grafts, he said, "It made me come home and tell my wife and daughters don't drink coffee in the car, at least not hot." 44 Mr. Elliot concluded from testimony by a McDonald's quality assurance executive that McDonald's was profoundly indifferent to bums and suffering. 45 Juror Betty Farnham was so unimpressed by the claim that 700 com- plaints were trivial relative to the millions of cups that McDonald's served that she began to doubt that the corporation could see the human suffering underlying the statistics. 46 She concluded that "The facts were so overwhelmingly against the company... They were not taking care of their customers."47 Another juror justified the punitive damages as a way to get McDonald's attention. "Their callous disregard was very upsetting."48 Indeed, the plaintiff won over the jury to such an extent that the judgment extended beyond the immediate defendant. Juror Richard Anglada stated that the punitive damages were aimed at all restaurants 42. Id. 43. Attorney Reed Morgan confirmed this in an interview. "The first thing they [the jury] had to get over was they thought it was a silly case." Interview with S. Reed Morgan, San Antonio, Tex. (Mar. 23, 2000). 44. Gerlin, How Jury, supra note 35. 45. Id. 46. Id. 47. Id. 48. NADER & SMITH, No CONTEST, supra note 23, at 270. 130 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 56:113 that poured excessively-hot coffee: "The coffee's too hot out there. This happened to be McDonald's." 49 Juror Roxanne Bell echoed the point, recalling "It was our way of saying, 'Hey, open your eyes. People are getting burned.' " 50 Not surprisingly, attorneys for McDonald's promised to appeal the case. However, there is some evidence that some corporate insiders took the verdict to heart, at least initially. An Albuquerque news investi- gator reported that the temperature of coffee at a local McDonald's shortly after the trial fell to 158 degrees. 51 Moreover, the lids of coffee cups began to carry the clear warning "HOT! HOT! HOT" and admoni- tions that "Coffee, tea, and hot chocolate are VERY HOT!" soon were routinely posted at most McDonald's drive-thrus. 52 A VICTORY BECOMES LESS SPECTACULAR: JUDGE SCOTT REMITS THE PUNITIVE DAMAGES Trial judge Robert H. Scott on September 14, 1994 reduced the punitive damages from nearly $2.7 million to $480,000, somewhat ironi- cally using the tort reformers' own preferred formula of "three times the awarded compensatory damages" as the upper limit. He did not set aside the verdict or adjust compensatory damages, however. Instead, he agreed with the jurors on key findings. He concurred with them that testimony and evidence showed that McDonald's knew or should have known that its coffee was too hot and unfit for consumption, that McDonald's and its employees were indifferent to consumer safety, and that McDonald's undertook inadequate efforts to warn its customers. He stated that the punitive damage award was appropriate to deter, punish, and warn McDonald's. 53 After Morgan's appeal challenging the reduced damages was denied, Judge Scott ordered another conference (as he had done before the trial) that produced a final confidential settle- ment for an undisclosed amount. In sum, the legal narrative of Ms. Liebeck' s grievance and claim regarding a defective, dangerous coffee product won hands down in a court of law even though the award she received was only about one- fifth of that initially authorized by the jury. 49. Cheryl Laird & Steven Long, Hot Coffee Becomes a Burning Issue, HousToN CHRONICLE, Aug. 19, 1994, at I. 50. Press, Are Lawyers, supra note 40, at 35. 51. Gerlin, How Jury, supra note 35, at B2. 52. Greenlee, Kramer v. Java World, supra note 6, at 723-24. 53. NADER & SMITH, No CONTEST, supra note 23, at 272. 2001] JAVA JIVE 131 THE PRINT MEDIA CONSTRUCT A LEGAL LEGEND We suspected when we started this study that popular accounts sig- nificantly simplified and selectively skewed various aspects of Liebeck's legal challenge to McDonald's. Our expectations were based on a sub- stantial body of research analyzing media reporting practices. In partic- ular, we have been influenced by political scientist Lance Bennett's argument that routine media practices tend to favor certain sorts of sto- ries as especially "newsworthy." 54 Bennett identifies four specific fea- tures of newsworthiness: Personalization, Dramatization, Fragmentation, and Normalization. 55 Personalized coverage tends to focus on individual actors, acts, and moral character to the exclusion or detriment of case-specific institu- tional, historical, or social contexts or dimensions. 56 Personalized cov- erage is related to fragmented coverage. Fragmented reporting treats happenings as immediate and self-contained. 57 Broader contexts, sys- temic relations, and chronic practices tend to be slighted to emphasize discrete vignettes. 58 As a result, particulars tend to be divorced from general patterns and relationships. Dramatized coverage is what we expect of news media in the age of infotainment. To insure circulation or ratings, news is hyped. The most sensational, surprising, or titillating aspects of events-violence ("If it bleeds, it leads"), scandal, large amounts of money ("Dollars hol- ler"), tragedy, fraud, etc. - are much more likely to be covered than merely accurate, expected, or mundane aspects. News is, thus, often about the unusual. 59 Finally, normalizing is the process of fitting "news" to "olds." Audiences need familiar referents and accessible scenarios if they are to understand news easily and efficiently. 60 News media presume that their clients will be attracted to coverage that matches common norms and expectations. 61 Normalization complements the other framing devices by rendering hair-raising and attention-grabbing reports understandable and by offering some reassurance along with threats. 62 As the routine is dramatized, the dramatic thus is rendered in highly conventionalized 54. See generally W. LANCE BENNETT, NEws: THE PouTics OF ILLUSION 21-64 (2d ed. 1988). 55. See id. at 23-24. 56. Id. at 23. 57. Id. at 24. 58. See id. at 24. 59. Id. at 23-24. 60. See id. at 24-25. 61. See id. at 25. 62. Id. at 25. 132 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 56:113 terms as routine, typical, "normal." 63 Together, these elements influence news selection and reporting practice. We have previously used this framework to analyze a large data set of over 4,000 newspaper articles about tort litigation in five major national newspapers over nineteen years. Our study, reported in a paper and our developing book, found that news coverage of tort law indeed emphasized the dramatic, personalized, fragmented, and normalizing tendencies that were expected. 64 In particular, news coverage radically over-represented: (1) products liability cases, relative to other types of tort action; (2) legal filings of claims well before trial and judgments following trials, as opposed to the complex substantive exchanges of evidence and arguments at trial; (3) cases in which plaintiffs win claims against corporate defendants; (4) cases with huge, multi-million dollar judgments for the plaintiffs; and (5) experts who rail against specific claims and judgments for plaintiffs or the overall legal system. Moreo- ver, we found that case coverage tended to be substantively thin and simplistic, offering very little insight into the civil litigation process, the reasoning of participants, the terms of law at stake in disputes, or alter- native institutional means attempted or available for addressing civic disputes over injuries. In short, news coverage of civil tort disputes rou- tinely paralleled inform and substance the simplistic tort tales circulated by tort reformers to assail the explosion of frivolous lawsuits and irre- sponsible actions by all parties involved in them. Hence, we expected newspapers to reconstruct the McDonald's Coffee Case to match standard understandings of "news-worthiness" : Easy-to-understand specifics, personalized conflict, and sensationalized results would garner far more coverage than challenging contentions about the complexities of events, of disputing case history, of multi- causal relations, or of the legal process. As a result, important facts and interpretations critical to the jury - for example, the legal rules in the Uniform Commercial Code and the location and timing of the accident - would be slighted or left out altogether. Second, we expected that less familiar story lines would receive little attention while well-known narratives would serve as defaults for journalists and readers alike. Spe- cifically, we anticipated that the subtle elements of the plaintiff's legally successful, but technically complex, products liability narrative would take a back seat to the culturally pervasive Individual Responsibility Narrative that jurors largely rejected as less revealing. Third, we surmised that fragmentary accounts and misleading factoids - state- 63. Id. 64. See Aks, Bloom, Haltom, & McCann, Hegemonic Tales and Subversive Statistics, supra note 12. 2001] JAVA JIVE 133 ments that are taken for facts by virtue of publication and dissemination but, upon inspection, tum out to be at best problematic65 - would facil- itate intercessions by reform-oriented and reform-influenced commenta- tors to spin the case as another instance of frivolous litigation in which the victim was blameworthy. 66 As such, the Liebeck legend would only add to the ideologically loaded, misleading, and often inaccurate knowl- edge about the civil legal system routinely disseminated to ordinary Americans. With only a few exceptions, our skeptical expectations proved extremely well founded. GRAPH ONE "GRAPH OF 1994 NEWSPAPER ARTICLES RELATED TO Liebeck v. McDonald's Restaurants" (Wire Reports Excluded) Articles 10 11 12 13 14 IS 16 17 18 19 20 65. In using "factoid," we follow NORMAN MAILER, MARILYN: A BIOGRAPHY 21 (1975) and Saks, Do We Really Know Anything, supra note 18, at 1162. We diverge from Professor Saks in eschewing "factlets," his terms for highly specific details that seem to convey more information than they actually do. 66. Readers should note the perhaps latent advantage of labeling cases "frivolous litigation." While "frivolous" may be used to denote the trivial or the unworthy, it may also connote idle or playful activities. To call a case frivolous litigation, then, may be to equivocate covertly: one may say one meant that the case was flimsy or without merit; one's audience may take the phrase to mean that litigants are indulging themselves in games or pastimes. 134 UNIVERSITY OF MIAMI IA W REVIEW [Vol. 56:113 ARTICLES The first point to note about the hot coffee case is that it was widely covered in the print media; the jury award was immediately reported in at least twenty-six leading newspapers, and many scores of articles fol- lowed in subsequent years. As we shall show below, the case was widely covered because of its easy fit into prevailing newsworthiness conventions. Moreover, the McDonald's Coffee Case affords the close observer valuable insights because it generated multiple waves of cover- age.67 Graph One shows how and why we separate Liebeck news cover- age, gathered through a systematic search of "Academic Universe," 68 into five discrete phases. The initial and largest spate of spot coverage followed the announcement of the jury verdict on August 18, 1994. After the first two days, the Liebeck case was in both the public and the pundit domain, as we shall show. Two subsequent events might have elicited corrective coverage of the case around September 1, 1994, so we treated these events and their spotty coverage together as a second phase. When Judge Scott cut the jury's punitive award by over eighty percent to three times the compensatory award, he inaugurated a third phase of coverage. This phase stretched from September 14, 1994, until December 1, 1994, when final case settlement piqued a brief fourth phase of coverage. These developments in the dispute occasioned spot coverage and commentaries throughout the final months of 1994. Together with a modestly-covered but substantial article correcting ini- tial reports, spot articles, and opinion pieces in Stages 1-4 reveal the process by which legally successful narratives and constructions of fact yielded to factoids and default "common sense" frames, transforming Litigant Liebeck into Symbolic Stella. After spot reports of the settle- ment ended around December 2-3, 1994, an on-going fifth phase rein- forced dissemination of the iconic case to the detriment of the case that plaintiffs argued and jurors decided. Phase Zero - Omission of Coverage Prior to the Verdict While much of our account turns on omissions from coverage dur- ing five phases, we first note a virtual complete omission of coverage before the first phase. The dearth of coverage prior to the jury award made the results seem even more surprising than might otherwise have 67. WILLIAM HALTOM, REPORTING ON THE COURTS 224 (1998). 68. In June of 2000, we searched Lexis-Nexis "Academic Universe" from August I, 1994 until December 31, 1994. Under "News," we searched both in "General News" and in "U.S. News," the latter to pickup regional newspapers not accessible in the former. Our primary keywords included: "court," "courts," "burn," "burns," "jury," "jurors," "coffee," "million," and "award." We then narrowed this far-flung search with the demand that all articles contain some spellings of both "McDonald's" and "Liebeck." 2001) JAVA JIVE 135 been the case. Had trial testimony and evidence been widely available - as was the case in many instances of tobacco litigation, for example - Ms. Liebeck's victory might have seemed less inexplicable and her claims more understandable. In noting omitted coverage, we attach no blame to news media as we do not presume that the Liebeck case mer- ited coverage before its denouement. We merely remind readers that, as previously suggested, the scarcity of pre-verdict coverage left much of the evidence and testimony under-developed and unlikely to become developed, given demands on the press for alacrity and concision. The failure of reporters to attend the trial or scrutinize the trial record greatly increased the chances that a substantial judgment would generate sensa- tional but incomplete, misleading, and even erroneous coverage shaped by media conventions and prevailing cultural norms. Therefore, this first omission may have been as important as other omissions we shall note below. NEWSPAPERS RELAY THE VERDICT: ELISION AND IMPRECISION IN PHASE ONE Despite under-development of the story prior to the verdict and concomitant omissions from coverage, Phase One print reports covered the verdict in a predictable, professional manner, repeating the standard emphases of mainstream media. Basics of the specific accident and par- ticular judgment - the answers to "Who?", "What?", "Where?", and other customary questions - were featured prominently in reportage. At the same time, consistent with our general findings, 69 the most dra- matic and personalized elements were emphasized in simplistic, familiar renderings, while subtle and complex dimensions of the trial record that did not fit prevailing formulas were left out. This reconstruction and fragmentation to suit newspapers' standards became accentuated when editorialists and commentators filled the gaps in reporting to yield spin and factoids. WIRE REPORTS: ROUTINE CONCISION LEADS TO TELLING ELISION We begin with the Associated Press morning wire-service report for three related reasons: it represented the longest and most detailed national account; it became a basis for coverage by most newspapers in our sample; and the Associated Press reported major developments in later phases as well. The initial news account on August 18, 1994 is reprinted below in its entirety as replicated on "Academic Universe." 69. See Aks, Bloom, Haltom, & McCann, Hegemonic Tales and Subversive Statistics, supra note 12. 136 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 56:113 WOMAN BURNED BY HoT McDoNALD's COFFEE GETS $2.9 MILLION A woman who was scalded when her McDonald's coffee spilled was awarded nearly $2.9 million - or about two days' coffee sales for the fast-food chain - by a jury. Lawyers for Stella Liebeck, who suffered third-degree burns in the 1992 incident, contended that McDonald's coffee was too hot. A state district court jury imposed $2.7 million in punitive damages and $160,000 in compensatory damages Wednes- day. Ken Wagner, Liebeck's attorney, said that he had asked the jury for punitive damages equal to two days' worth of McDonald's coffee sales, which he estimated at $1.34 million a day. Testimony indi- cated McDonald's coffee is served at 180-190 degrees, based on advice from a coffee consultant who has said it tastes best that hot, Wagner said Thursday. The lawsuit contended Liebreck's (sic) cof- fee was 165-170 degrees when it spilled. In contrast, he said, coffee brewed at home is generally 135-140 degrees. He said McDonald's expressed no willingness during the trial to turn down the heat or print a warning. Defense attorney Tracy McGee already has said the company will appeal. McGee also said the jury was "concerned about an industrywide practice" of selling hot coffee. Juror Richard Anglada confirmed the jury was trying to deliver a message to the industry. "The coffee's too hot out there (in the industry). This hap- pened to be McDonald's," Anglada said Wednesday. Liebeck's lead counsel, Reed Morgan of Houston, said there have been several law- suits nationally over the temperature of McDonald's coffee but that he believes the Liebeck case was the first to reach the verdict stage. A California case was settled out of court for $235,000, he said. Morgan said Wednesday the woman's medical bills totaled nearly $10,000. According to testimony, Liebeck was a passenger in a car driven by her grandson outside a McDonald's in southeast Albuquerque when she was burned by a cup of coffee purchased at a drive-through window. The jury found, among other things, that the coffee was defective and that McDonald's engaged in conduct justifying the punitive damages. 70 The astute reader should notice two characteristics of the account immediately. For one thing, it is very short, simple, and thin - already well fitted to become an anecdote. Moreover, the characteristically frag- mented, disjointed presentation of information is familiar. Virtually no signs of carefully constructed legal arguments presented by the disputing parties, of debate over fundamental legal issues at stake or of contrasting evidentiary claims in the trial survive the Associated Press's reconstruc- tion. Readers hoping to find clearly demarcated themes or well-crafted 70. AP, Woman Burned, supra note 3. 2001] JAVA JIVE 137 legal narratives are sure to be frustrated. As such, the wire account offers few explicit cues to make sense of what principles were at stake, or even reason to believe that legal norms of right or justice mattered at a11.11 Beneath its surface randomness, the selection and prioritization of information in the Associated Press story exhibits a logic that we have encountered before and will see repeated endlessly in news coverage of the hot coffee case. While little direct attention to substantive themes and arguments is apparent, the information presented in the wire report clearly displays the logic of both the newsworthiness routines discussed above and the defendant's specific individualistic interpretation of the accident. Let us now examine in greater detail how the wire report reconstructed the McDonald's Coffee Case selectively and tendentiously. The first and most extensively noted information in the article - i.e., identifying the bum injury and the award - dramatizes the case. By far, most prominent in the wire report are the monetary figures. The bold headline and the first, third, and fourth sentences each highlight either the $2.7 million punitive damages award or the cumulative $2.9 million award. The fourth mention (fourth sentence) disaggregates the total into two figures, followed by the calculus of two times $1.34 mil- lion in coffee sales to determine the punitive damages. This is impor- tant, for journalistic norms privilege placing the most important information first, after which repetition highlights the message. Near the end of the report, other lesser but still large sums - an earlier settlement of $234,000 and medical bills of $10,000 - are mentioned. In short, as any reader of wire-service stories might have predicted, "dollars holler" from the headline through to the end of the brief report. Conversely, the wire account somewhat surprisingly underplays the gory details of the scalding injury that were prominent at trial. The headline as well as the opening and closing paragraphs both note the scalding or bums that were caused by the coffee and gave rise to the legal claim for compensation. After this report showed readers the money, it showed them an injury, albeit understating Ms. Liebeck's inju- ries and rehabilitation while playing up the mega-verdict. The news account also is highly personalized. Indeed, it is filled with mentions of individual actors: Stella Liebeck; her attorneys Reed Morgan and Kenneth Wagner; McDonald's; one defense attorney, Tracy McGee; and one juror, Richard Anglada. Such synecdoche seems expedient and even efficient, but personalization deprived client 71. These characteristics also suggest that the story was relayed by journalists with little substantive "spin" from elite interpreters with particular policy interests. 138 UNIVERSITY OF MIAMI IA W REVIEW [Vol. 56:113 newspapers and readers of contextual elements. For one thing, recogni- tion that the dispute was between a seventy-nine year old retired work- ing-class woman with inadequate Medicare benefits and a huge multi- national corporation and that the legal duel was between a personal- injury attorney and a battalion of corporate lawyers 72 is almost entirely obscured by the individualized account, which casts each agent in his or her formal role. While "McDonald's" appears repeatedly, the Associ- ated Press failed to remind readers of the vast size and wealth of the McDonald's corporation; it is at most a "fast-food chain," one player in a larger "industry." Indeed, some readers might be uncertain that the corporation, rather than the Albuquerque franchise, was the defendant. Moreover, the attention to the spill accident - although generally incomplete and misleading (and later often flatly erroneous) - further tended to reconstruct the case to suit interpretations based on individual responsibility far more than the plaintiffs case or the jury's rationale. Specifically, no mention is made that: (a) the car was parked motionless to the side rather than at the window or moving; (b) there was little recklessness about the action leading to the accident; or (c) the injuries involved extreme pain, skin grafts, and sustained disability. That the accident was indeed ordinary but the injury extraordinary - Stella Liebeck's fundamental claim - is difficult, at best, to discern from the news account. In sum, personalization in this wire story favored McDonald's and disadvantaged Ms. Liebeck. Important items implicating the corporation in the accident were included in the report, but selective dramatization and personalization pared details essential to the plaintiff's arguments and the jury's verdict. As Professor Bennett has demonstrated, mass media do not merely dramatize and personalize; through their selectivity, news media frag- mentize news. 73 The Associated Press, we can see, fragmentized the coffee case by its inclusions and exclusions. The story notes that Liebeck, her lawyer, and a juror "contended" that the "coffee was too hot." But the links to the defective product claim are indirect and implicit rather than explicit. The news account also specifies that the coffee temperature of 165-170 degrees was about thirty degrees hotter than most home-brewed coffee and that complaints and lawsuits had been filed previously against McDonald's. However, the latter points, which were pivotal to the jury, come only at the end of the news report. Conspicuously absent are the most important elements of the plaintiffs defective products narrative that influenced the jury and judge: (1) the 72. While Morgan had a couple of hot liquid cases, including one hot coffee case against McDonald's, he was hardly a "repeat player." 73. BENNETT, supra note 54, at 24. 2001) JAVA JIVE 139 scientific evidence from two noted experts about the celerity at which skin bums at 170-180 degrees, without which mere mention of coffee temperatures means little; (2) the details about the plaintiffs immense pain and disability; (3) the fact that a documented 700 complaints had been filed against McDonald's in recent years; (4) the fact that McDon- ald's administrators admitted the company knew about and ignored the palpable dangers of extremely hot coffee; and (5) the facts about the early stages of the dispute, including Liebeck's initial request for meager compensation, the plaintiff's multiple efforts over two years to settle spumed by McDonald's, the mediator's recommended award, and the like. What we have previously generalized about news coverage, 74 we here particularize to wire reportage of Liebeck v. McDonald's Restau- rants: large awards make news while crucial details are discarded to make stories concise and accessible. Whether the discarded facts were unknown or regarded as irrelevant or too esoteric by journalists, we can only guess. 75 But the inclusion of some key facts and exclusion of others emphasized the large award to the plaintiff for a seemingly incon- sequential mishap - a key contention in the narratives of individual greed disseminated by tort reformers - while obscuring essential ele- ments of the legal argument (the Defective Products Liability Narrative) that led jurors to find the corporation responsible for the painful injury in question. Failure to mention the legal grounding for that judgment in the Uniform Commercial Code as well as the plaintiffs multiple, amply- evidenced arguments leaves readers to question whether the jury acted on either law or reason, much less both. The enigmatic final statement of the report underlined this question. Albeit "the jury found... that the coffee was defective" and "punitive damages" were justified, readers cannot be certain why jurors decided as they did. 76 On balance, the concise spot-news offered by the Associated Press thus conveyed much relevant information about the case, but it de-con- textualized the accident in ways that analysts of the news have led us to expect. The omissions and under-emphases of the wire report repeated in many newspapers tended to discount the plaintiffs defective product narrative far more than the commonsensical individual responsibility 74. Aks, Bloom, Haltom, & McCann, Hegemonic Tales and Subversive Statistics, supra note 12. 75. We asked many journalists about this. Some confinned that scientific evidence is often considered too esoteric or technical to print in spot news. We expect that there is a routine filtering bias at stake in this regard, which is part of the newsworthiness inclination. The most obvious reason, however, is that no journalists were present at the trial to hear such evidence or to obtain a clear version of it. 76. AP, Woman Burned, supra note 3. 140 UNIVERSITY OF MIAMI I.AW REVIEW [Vol. 56:113 frame of McDonald's, which readers and journalists arguably had long been primed to presume in making sense of public events. While noth- ing in the initial wire report explicitly linked Ms. Liebeck's suit to the alleged epidemic of silly suits afflicting the nation, the Associated Press story reconstructed the case in a manner that left open, and even invited, that linkage. The "man bites dog" angle of receiving $3,000,000 for spilled coffee made this item far more newsworthy and culturally reso- nant but also far less accurate. INITIAL PRINT REPORTS: MORE CONCISION; LESS PRECISION Reports in the twenty-four newspapers in our Lexis-Nexis "Aca- demic Universe" sample emulated the Associated Press report. 77 As expected, the Associated Press stories were more copiously detailed than almost all stories run by clients who edited the wire copy. 78 Thus, inclu- sions and exclusions by the wires prevailed in newspapers. As Table One demonstrates, newspapers varied in the wire-service inclusions they printed, but they rarely added elements omitted by the wires. 79 Three patterns in Table One characterize what made it into the McDonald's Coffee Case and what was filtered out. The first pattern consists in elements uniformly included. In Table One, we can see that four elements of the Liebeck victory were included in reports in every newspaper in our sample: the severity of the injuries, the stupendous award, the claim that McDonald's coffee was too hot, and description of the coffee spill. A second pattern consists in elements regularly excluded alto- 77. The other wire services reprinted in "Academic Universe" tracked the Associated Press story, sometimes verbatim, sometimes more briefly. Because the papers in our sample cited the Associated Press and because the Associated Press story is expansive relative to the other wires, we used the Associated Press AM report. 78. Only the Houston Chronicle and Albuquerque Journal (the latter unavailable in "Academic Universe" and hence not in our sample)-ostensibly due to Reed Morgan's residence and local relevance respectively-ran articles that were longer and more detailed. 79. Table One affords an overview of relative emphases in both the Associated Press reports and subsequent newspaper accounts. It breaks reports of the Liebeck verdict down according to the information mentioned in each sentence of each report. Rows feature every print report we were able to locate by "Academic Universe." The AM and PM reports of the Associated Press are highlighted for easy contrast with two dozen reports in newspapers. We array fifteen categories of information in an order determined by coverage. Having coded located articles published on August 18 or 19 in 1994 for the fifteen categories of information, we rearranged vertical columns [defined by categories of facts] and horizontal rows [defined by the news organs that published the articles] to maximize reproducibility. The advantage of a reproducible table is that newspaper articles range from the ones that covered the greatest number of categories of information [at the top of the table] to the ones that covered the fewest ["lower" rows of Table One], while the categories of information are ordered from the categories mentioned in at least one sentence in every report [the leftmost columns] to categories mentioned in not even one sentence of one article [the three rightmost columns]. N 0 TABLE ONE - PATIERNS OF INFORMATION rN SPOT CovERAGE OF LIEBECK v. McDONALD's, 0 ,_. 18-19 AUGUST 1994........ Adequate Place in Initial Reactions McDonald's Jury's Warnings Broader Claim. Liebeck's Jury Award Allegations that Liebeck's of Parties Conduct and Reasoning on Science Civil Sympathy Desire Litigiousness Uniform All dates below are 8-19-94 Bum for Coffee Was Too Spill of to Spill or Past Location or Coffee of Justice for to of Plaintiff Commercial Total Total unless otherwise noted. Injuries Damages Hot Coffee Judgment Complaints of Spill Message Cups? Bums System Plaintiff Settle or Others Code Sentences Words Associated Press AM 8-18 0-2. 0-1, 2, 5-7. 6 9 8, 17 10-11 8 18 341 16-17 3-4,18 /0-13, 18 14-15 Phoenix 0-2, 0-1,3-4, 2, 5-7. I, 8, 16 10-12 8 19 330 Gazette 15-16,19 9, 17-19 10-12, 17 19 13-14 Charleston WV 0-2, 0-1, 2, 5-7, 0-1 9 8, IO 8 12 273 Daily Mail 12 3-4 IO II Houston 0-1, 3, 2, 5-12, I, 4, 29, 33- 13 14 30-32, 36, 37, 39 39 621 Chronicle 16 26-28,33 I 7-24, 26, 29-30, 14-15 34 38 32-33 Chicago 0-2, 0-1, 2, 11-13, I, 5 19 14-15 I 17-18 22 340 Sun Times 5-IO, 14 3-4 17-18, 20-22 Bergen I, II, 0-2, 4-5, 9, I, 3, 8 3 6-7 IO 21 324 Record 20-21 6 12-18 20 II :i: ~ Associated Press 0-1. 0-1. 2-3. I, 3-4 5 8 13 205 PM 8-18 6-7 12-/3 9-/0,/3 5-6 Charleston WV 0-1, 0-1, 2-3, I, II 3-4, 13 5 8 13 205 Gazette 6-7 12-13 9-10, 13 5-6 :::::: ~ GreensOOro NC 0-1, 0-1, 2-3. I, II 3-4 5 8, IO 13 204 News & Rec. 6-7 12-13 9-11. 13 5-6 Memphis Com. Ap. 0-1, 6 0-1 2-3 I, 5-6 7 3-4 5 7 132 Atlanta J_ c_ 8-18 I, 6-7 I 2-3 I, 5 3-4 5-6 7 132 Louisville Cour. Jo. 1-2 I, 3-4 o. 2, 6-7 5 I 7 127 USA Today 2, 6-12 2-3, 20 o. 13--15, 17 2, 6 4, 16 18 20 256 Wall Street Journal 0-2, 5 0-1, 3 2, 6-8 I 4 8 Des Moines Register 1-2 0-1, 3-4 2, 6 I 5 6 116 New York Times 0-2 0-1, 3 2 I 4 4 67 Dayton Daily 1-2 I 0, 3-4 I 2 4 78 The Columbian 8-18 I, 5-6 0-1 2-3 I, 4-5 4 6 St. Petersburg Times 0-1, 3 1-2 2, 4-6 0-1 6 117 Atlanta Jo. & Const. 0-2 0-I, 3-4 2, 5-7 I 7 161 Chicago Sun T. 8-18 I I 2-3 I 3-4 4 85 Arkansas Dem. Gaz. I I 1-2 I I 2 59 Denver Post 1-2 I, 3 2 I 3 71 Boston Herald 0-2 I, 3 2 I 3 69 Seattle Post Int. 1-2 I 2 I 2 49 Washington Post 1-2 I 2 I 2 48 Total Headlines 14 14 3 2 0 0 0 0 0 0 0 0 0 0 0 Mean FII'St Mention 1.04 1-12 2.5 1.23 7.92 6.58 6.77 I0.8 8 IO 37 - - - ,_. Total Sentences 77 64 117 43 18 24 14 20 3 I 2 0 0 0 0 268.j:>. ,_. 142 UNIVERSITY OF MIAMI IA W REVIEW [Vol. 56: 113 gether. Scientific testimony about the swiftness with which very hot liquids inflict sever bums surfaced only in the tenth sentence of the Ber- gen (NJ) Record and neither in the Associated Press stories nor in stories in larger, "national" papers. Details about the extent and severity of the bums or the infirmity they caused were almost completely absent from the accounts. The Houston Chronicle commented on routine civil jus- tice cases in its thirty-seventh and thirty-ninth sentences; no other source in Table One so contextualized the Albuquerque anomaly. Not even one source mentioned the Uniform Commercial Code or the initial inclina- tion of the plaintiff to settle without filing suit or, later, to settle without trial. All sources avoided characterizing the plaintiff as litigious or either party as sympathetic. A third pattern is a bit more complicated. Elements in Table One correlated with the length (in sentences) of articles. Only three articles (counting the Associated Press AM report) raised the presence or ade- quacy of warnings about the temperature of the coffee. About one third of the reports in Table One devoted one or more sentences to the jurors' reasoning, despite the quotation from Mr. Anglada in the Associated Press report. Slightly more papers and both Associated Press reports "placed" the car at the side of the lot or Liebeck in the passenger seat, and the same number of sources mentioned the intransigence of McDon- ald's concerning past complaints and lawsuits. More sources than not mentioned reactions to the verdict, if only in single sentences in all but two instances. These three patterns and other information in Table One reveal much about Phase One reporting. The four elements invariably covered - the bums, the awards, the temperature of McDonald's coffee, and the spill - also led the other elements in the total number of sentences that made reference to the element, in the priority (that is, how low the num- ber) of the first mention of the element in the article, and in being part of headlines. These four offered a succinct, simple sequence: a woman spills coffee in her lap, sues McDonald's for making coffee so hot that it severely burned her, and gets millions. This sequence preserved the per- ceived irrationality, if not absurdity, of an extravagant award generated by an everyday occurrence and novel claim. If those four elements are all that the reader may learn from a story - and in about half of the newspapers sampled they are all or almost all of the crucial elements of the story that we found - then newspapers' reports were not merely fragmentary, as wire stories were, but reduction- ist. The patterns discussed above and the marginals below Table One testify to the elements missing from most or many articles and scanted in most or all: past complaints about and lawsuits against McDonald's; 2001] JAVA JNE 143 the impassivity and indifference evident in the testimony of McDonald's officials; the lowball offer extended to Ms. Liebeck for her crippling injuries, extensive rehabilitation, and onerous expenses; the contrasting mindsets of plaintiff and jurors; the location of the car in the lot and of Ms. Liebeck in the car; and the presence and usefulness of warnings on cups. Each element that, by itself, would have made the story less bizarre - the science of bums; Ms. Liebeck' s initial request for $20,000 in expenses; and the Uniform Commercial Code - eluded almost all reports. In sum, Table One shows how newspapers constructed the story of the McDonald's Coffee Case to suit newsworthiness at considerable cost to precision and comprehensiveness. That the initial reports suited the defense's Individual Responsibility Narrative far better than the plain- tiffs Defective Products Liability Narrative or the jury's decision was an unintended boon for McDonald's and, we shall see, tort reform in the public relations battle that followed the case. PHASE ONE FEATURES AND COMMENTARIES: ENTER THE FACTOIDS To be sure, wags and pundits might have distorted the coffee case for partisan, ideological, policy, or satirical purposes no matter how well spot reports had conveyed the facts. Fragmentary or reductionist report- age, however, left editorialists and commentators free to fill in omissions with helpful, if incorrect, information. Even if the misinformation that suffused print media after August 18, 1994 was utterly independent of fragmentary coverage, the predominance of interpretations built on Ms. Liebeck' s sole, personal blame for the accident and the utter blameless- ness of McDonald's would have been inevitable. Gaps in public knowl- edge about the specifics of the case simply made easier the manufacture of factoids imputing greater moral blame to Ms. Liebeck, the injured. Features on reactions to the Liebeck verdict, editorials, and letters to the editor tended to shortchange the most technical information on which the plaintiffs case depended, thereby divorcing commentators' views ever further from the case the jurors actually heard. Similarities between Table One and Table Two reveal how pundits' emphases tended to track those of initial reports. Table Two arrays patterns of emphasis in articles that appeared soon after the verdict but were not spot reports on the verdict. Since features on reactions, editorials, and letters to newspapers do not tend to follow the journalistic convention of putting the most important information first, the relative placement need not tell us anything, and so Table Two is not scaled. 80 80. Although Phase Two began roughly on September 1, 1994, we have included four articles that did not take into account the two events that define Phase Two. Those four appear in TABLE Two - PATIERNS OF SENTENCES IN COMMENTS AND EDITORIALS REGARDlNG LIEBECK v. McDONALD's, -t PHASE ONE (18-31 AUGUST 1994) Adequate Place in Initial Reactions McDonald's Jury's Warnings Broader Claim. Liebeck's Jury Award Allegations that Liebeck's of Panics Conduct and Reasoning on Science Civil Sympathy Desire Litigiousness Uniform Bum for Coffee Was Too Spill of to Spill or Past Locaiion o

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