Publication Date

2005

Document Type

Article

Abstract

In recent years, gun manufacturers and dealers have faced a wave of tort litigation in courts across the country. Shooting victims and their families have sued, claiming that they suffered injuries attributable to gun companies designing and distributing firearms in unreasonably dangerous ways. Dozens of major cities and counties have sued as well, seeking to recover costs for law enforcement, medical, and other public services allegedly incurred as a result of gun industry practices that foster criminal possession and misuse of guns. Patterned after the lawsuits by state attorneys general that shattered the tobacco industry's aura of legal invulnerability several years earlier, these government suits received widespread attention and generated predictions of a similar breakthrough against the gun companies.

As these cases made their way through the courts, they caught the attention of writers and producers of various forms of popular entertainment. Stories about litigation against gun manufacturers and dealers became the basis for episodes of two of the most popular television courtroom dramas, a Hollywood star-studded legal thriller, a novel by a best-selling author, and an investigative journalist's account of the legal and political controversy surrounding guns.

This Article examines these dramatic portrayals of litigation against gun companies, looks at the messages and information they conveyed to audiences, and considers what they reveal about the real legal battles that inspired them. The creators of these dramatic works used real litigation as source material. They drew facts, events, and arguments from actual cases and wove them into stories. Some strived to portray the gun litigation realistically and others relied more heavily on artistic license and imagination. While varying widely in the extent to which they aimed for realism, they shared several core goals. First and foremost, each sought to tell a compelling story that people would want to watch or read. In addition, for a mix of ideological and dramatic reasons, each strived to present a strong and convincing case against the defendant gun companies. To accomplish those goals, the creators of these works relied on techniques of melodrama. They simplified and personalized the issues, ratcheting up the pathos of plaintiffs and villainy of defendants to create a stark conflict between moral extremes.

That process of developing narratives and using dramatic techniques to enhance their impact is similar in many ways to what lawyers inevitably do in litigation. They select and arrange facts to tell stories that judges and juries will find more coherent, credible, and convincing than the competing stories created by the adversaries. Narrative and melodrama play vital roles in real litigation just as in the depictions of litigation that appear on screen and in print.

A review of popular entertainment's portrayal of lawsuits against gun manufacturers thus provides an illuminating way of approaching the real litigation and thinking about what types of claims and strategies did, or did not, work. In particular, it suggests explanations for one of the central puzzles of the gun litigation: the relatively weak results achieved by the most potentially potent litigation. Lawsuits brought by cities and counties initially appeared to pose the greatest threat to the gun industry. They were aggregative in nature, asserting claims based on a broad swath of incidents and an immense accumulation of injuries, rather than just a single event as in a conventional lawsuit brought by one, or a few, individuals. At least to date, these government lawsuits have not achieved the breakthrough results for which their proponents hoped, confounding expectations that the aggregative approach would prove more powerful than conventional, individualized claims. Examining television, film, and literary portrayals of gun litigation provides insight into what occurred in the real litigation, shedding light on significant but overlooked shortcomings of the aggregative litigation approach. The cities' and counties' lawsuits addressed the issue of gun violence in an unusually comprehensive, but abstract, way. While that initially seemed like an advantage, it ultimately undermined the cases.

In analyzing and comparing the construction of narratives in real cases and their dramatic counterparts, this Article crosses through the intersection of several subjects that have been the focus of intense academic interest and extensive writing in recent years. Scholars have lavished attention on the significance of narrative in law. In addition, scholars have begun to pay substantial attention to the relationship between law and popular culture, looking carefully at law's reflection in movies, television, and books. Popular culture not only has a profound influence on how millions of Americans view the legal system and legal issues, but constitutes a valuable cultural record of ideas and attitudes about lawyers and law.

Part I of this Article provides a brief overview of the real lawsuits against the gun industry and, in doing so, notes a key distinction between traditional individual cases which focus on one incident, and broader, aggregative cases brought by local governments and other entities. Part II describes how gun litigation has been depicted on the television programs Law & Order and The Practice, in the film Runaway Jury, in Richard North Patterson's novel Balance of Power, and in a non-fiction account entitled Outgunned: Up Against the NRA -- The First Complete Insider Account of the Battle over Gun Control. Part III compares the creation of narratives and the use of melodrama in the dramatic portrayals of gun litigation with the same phenomena in the real litigation. The analysis suggests that the absence of crucial melodramatic narrative features has been a fundamental deficiency in the government lawsuits and similarly expansive forms of litigation against the gun industry.

In the interests of full disclosure, I emphasize that I am by no means an impartial observer of lawsuits concerning firearms, whether the litigation is real or fictional. As a staff attorney for the Brady Center to Prevent Gun Violence, I helped represent plaintiffs or amici curiae in many of the cases discussed here. In addition, I provided information and ideas to two writers, Brian Koppelman and David Levien, at an early stage of their work on adapting John Grisham's book Runaway Jury into a screenplay. Whatever one thinks about their ultimate merits, lawsuits against gun makers provide a revealing opportunity to look at the relationships between one of the most controversial types of litigation in recent years and its fictional reflections in the realm of popular culture.

Publication Title

University of Missouri Kansas City Law Review

Volume

73

Issue

4

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