ANNUAL STUDY OF MEDIA LAW TRIALS SHOWS 14 TRIALS IN 2003, WITH MEDIA WINNING 57 PERCENT

There were 14 cases that went to trial in 2003 against media defendants based on editorial content, according to an annual report by the Media Law Resource Center (MLRC). Media defendants won eight of them (57.1 percent).

The 2003 media win rate was lower than 2002 – when the media won five out of six cases that went to trial – but it is still the third highest victory rate recorded by the organization since it began surveying media libel, privacy and related trials in 1980.

Details on the 14 trials, and analysis of their results and the results of 494 media trials since 1980, are included in MLRC’s 2004 Report on Trials and Damages.

Among the key findings of the Report:

• Media Win Rate Rising. Since 1980, the media has lost over 61 percent of the 494 trials on libel, privacy and related issues. But media defendants win rate has gone up decade by decade, winning 35.6 percent of the trials in the 1980s; 42.2 percent in the 1990s; and 54 percent in the 2000s thus far.

• Win Rate Before Juries Rising. Because there are relatively few bench trials, the rise in the percentage of cases won at trial by media defendants is the result of winning a higher percentage of cases before juries.
  

• Number of Trials Going Down. The total number of cases going to trial has dropped steadily since the 1980s – from an average of over 24 trials per year in the 1980s, to an average of 23 per year in the 1990s, to an average of only 12.5 per year in 2000-2003.
  

• Fewer Trials Against Newspapers. The drop in the number of trials over this time period is the result of fewer trials involving newspapers. The number of trials against broadcasters has not declined since 1980, and may be rising somewhat in the 2000s.
  

• Trial Awards Continue to Climb. The average trial award in the 2000s is up to $3.4 million. In the 1990s, excluding one aberrational case in which over $220 million was awarded (and ultimately dismissed), the average was $2.6 million. In the 1980s, that average was $1.5 million.
  

• One-Third of Awards Stand Up in the End. At the end of the litigation, however, about one-quarter of the awards that plaintiffs won since 1980 were reversed or reduced by the trial judges in post-trial motions. Of the awards that were not reversed by trial judges, just under 35 percent were either affirmed on appeal or were not appealed and were paid in full. Another 14 percent were settled. The rest were modified or reversed on appeal, with a handful of cases that remain on appeal as of the date of this Report or with the outcome unknown.
  

• State Comparisons. Since 1980 there have been 386 trials in state courts, and only 108 trials in federal courts. California had the most trials with 37, followed by Pennsylvania (31), Texas (27), and Florida (21). But among those states with three trials or more, the media defendants were most successful in Connecticut and Oregon, winning over 83 percent of the six trials in each of those states. The worst state records for media defendants can be found in Kansas (no defense victories in three cases), Arkansas (1 of 6), and West Virginia (1 of 5). The Report has full state by state and federal circuit by circuit comparisons on number, win rate, and damage awards.

"The good news is that there are fewer libel, privacy and related claims going to trial against media defendants, and that media are winning a higher percentage of those that do go to trial. But these cases remain a threat to the media," said MLRC Executive Director Sandra Baron. "While most of these excessive trial awards are reduced on appeal, the expense of litigating can be daunting. The danger is that excessive damage awards, and the cost of litigating and appealing them, may give editors and publishers pause when covering controversial people and topics."

2003 Cases

Seven of the 14 trials in 2003 involved television defendants, while five involved newspapers, one involved a radio defendant, and one case was against an Internet web site. The web site case, which involved www.newsok.com, the combined web site of The Oklahoman newspaper and KWTV News9, is the second case involving Internet content to qualify for inclusion in the MLRC Report.

Twelve of the 2003 trials were in state court, while two were heard in federal court. All of the cases were tried before juries, although judges issued directed verdicts in two of the cases. Media defendants won both federal cases, and half of the state cases.

Of the six verdicts for plaintiffs in 2003, three of them involved awards of over $1 million; two of these exceeded $10 million. The average of the six trial awards is $5.4 million, while the median is $2.0 million.

*  *  *

The Media Law Resource Center is a non-profit information clearinghouse organized in 1980 by leading media groups to monitor developments and promote First Amendment rights in the libel, privacy and related fields. MLRC has systematically monitored trends in libel and privacy trials and appeals since 1980, and its empirical data have been widely cited and reported in the media, in scholarly publications and in judicial opinions. MLRC’s studies have thus played a central role in the ongoing debate over the effect of libel claims on freedom of the press.

MLRC’s members include leading publishers and broadcasters, media and professional trade associations representing newspaper, magazine, newsletter and book publishers, broadcasters, journalists, authors, news directors and newspaper editors, and also media insurance carriers. MLRC’s law firm wing, the MLRC Defense Counsel Section, consists of approximately 200 member firms around the country and abroad with specialities in media and libel defense representation.