MLRC ANNUAL STUDY OF MEDIA TRIALS: 14 TRIALS IN 2005: 7 WINS, 7 LOSES, RELATIVELY MODEST DAMAGE AWARDS

Media’s Win Rate Continues to Rise, But There Is a Long-Term Trend of Rising Damage Awards

For Release: March 2, 2006

Media defendants went to trial 14 times on libel, privacy and related claims in 2005, winning seven trials and losing seven, according to the 2005 Report on Trials and Damages released this week by the Media Law Resource Center (MLRC). The MLRC Report on Trials and Damages is an ongoing study of libel, privacy and related claims against media defendants in trials from 1980 to the present, showing the results and trends in this area of First Amendment litigation.

The MLRC Report analyzes 531 trials verdicts from 1980 through 2005. Over these 26 years, media defendants won 214 of 531 trial verdicts (40.3 percent). The average damage award in plaintiffs’ trial victories is $2.9 million.

But MLRC’s data also analyzes what happens at the "end of the day" – after defendants’ post trial motions and appeals. This shows that after additional litigation, media defendants ultimately won 51.4 percent of the cases that went to trial and verdict.

Plaintiffs ultimately won and got to keep the entire trial damage award in only 18.7 percent of the cases that went to trial and verdict. After post trial litigation, and excluding cases that settled, their average damage award drops by more than half: from $2.9 million after trial to $1.4 million after post-trial motions and appeals.

The media win rate in trials has been going up decade by decade: from 36.3 percent in the 1980s, to 40.2 percent in the 1990s; to 53.8 percent from 2000 through 2005.

While the media is winning a greater percentage of trial verdicts there is an upward trend in damage awards. In the 1980s, the average damage award was over $1.5 million. In the 1990s that rose to almost $5 million (largely due to one mega-verdict of $222.7 million). The average so far this decade is $2.8 million.

The upward trend is also evidenced by the increasing percentage of million dollar awards. In the 1980s, 21.8 percent of awards were $1 million or more; that increased in the 1990s to 30.0 percent; and has risen this decade to 37.8 percent.

The damage awards this past year were relatively modest – an average of $369,000 and an even lower median of $75,000 for the seven loses. But the average and median damage awards for the decade are significantly higher: An average of $2.8 million; a median of $626,000.

The number of trials in 2005 is consistent with the long-term trend of fewer media trials per year. In the 1980s – when MLRC first began monitoring trials – there were an average of 27 trials per year. That dropped to 18.8 trials per year in the 1990s. So far this decade this has further declined to an average of only 13.8 trials a year. The decline in trials is primarily the result of fewer trials involving newspapers defendants. The number of trials involving television defendants has remained fairly steady throughout the study period.

Other Findings in the 2005 MLRC Report on Trials and Damages

Defamation is most frequently litigated claim: litigated in 87.6 percent of trials, and in 73.8 percent of the trials it was the only claim litigated. False light is the second most common claim (9.1 percent of trials).

Public vs. private figure plaintiffs: public officials and figures were plaintiffs in 247 trials (51.8 percent of trials with known plaintiffs); private figures, in 230 (48.2 percent). Defendants win slightly more trials involving public plaintiffs, 40.9 percent, than trials involving private figure plaintiffs, 38.7 percent.

Compensatory and punitive damages: there has been a dramatic shift from the 1980's to this decade in the ratio of compensatory and punitive damages in awards. Of the total damages awarded in the 1980s, 39.0 percent was compensatory and 61.0 percent was punitive. In the 1990s, the ratio was 48.8 compensatory to 51.2 punitive.¹ This decade, the ratio is 92.7 percent compensatory to only 7.3 percent punitive. In 2005, only 3.5 percent of the total damages awarded were punitive damages, an all time low for the Report.

"Media defendants go to trial less and win at trial more – the statistics on trials of libel, privacy and related claims against media defendants are clear on those two trends since 1980," said MLRC Executive Director Sandra Baron. "This is good news for those who understand the threat posed to free speech and press from the enormous time and expense of these kinds of lawsuits.

"The fact that the defendants win, in the end, a majority of the cases – at trial, in post-trial rulings or on appeal, does not eliminate the danger that excessive damage awards, and the cost of litigating and appealing them, may give editors and publishers pause when covering controversial people and topics."

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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 over 200 member firms around the country and abroad with specialities in media and libel defense representation.

The MLRC Report is available free to the press from MLRC by calling (212) 337-0200. It is available to others for $35 More information from the Report can be found at www.medialaw.org.

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For more information please contact:

Sandra S. Baron, Esq., Executive Director, Media Law Resource Center
(212) 337-0200 x 206  medialaw@medialaw.org