Friday, May 11, 2018

Injury Litigation in America: Out of Control, or Endangered?

By Daniel Whited

The belief that Americans are notoriously litigious is by and large influenced by those who seek to reform tort law. In his book “The Myth of the Litigious Society,” Professor David Engel provides empirical data intended to discredit the assumption that Americans live their lives one lawsuit at a time. He is able to accomplish this by providing insight into the minds of those injured and examining alternate theories as to why so many victims of injury fail to assert a claim against their injurer. Policy goals in tort law are to make a person “whole” again, to compensate those who have been injured as a result of another’s negligent or reckless actions, and to deter behavior that is detrimental to society, all of which fail to address the underlying societal issue that lies not in America’s purported lawsuit obsession, but rather our reluctance to bring a cause of action for injury at all. “Researchers have decisively refuted the myth of litigiousness, but legislatures across the country have nevertheless adopted ‘tort reform’ measures aimed at curbing the imagined proliferation of injury litigation” (Engel at 3).

In support, Engel offers a 2012 National Safety Council survey which found that one in every eight, or more than 38 million, Americans suffered physical injuries as a result of accidents that were serious enough to require medical treatment, with an additional 127,000 resulting in fatalities. The available analytical data suggests that as many as nine out of ten victims of accidental injury assert no claim at all against their injurer. I began this book believing that Americans were notoriously litigious and did not rebuke the notion of tort reform. However, the responses to accidental injuries provided in table 2.1 suggest that reform must come in the form of understanding what could deter eighty-one percent of those injured from asserting a claim. The author subcategorizes the injured into two groups, those who engage in lumping and those who engage in claiming. The two are antonyms by definition, with the former being one who absorbs the wrong rather than taking action against another party, and the latter is defined as any effort by an injury victim to force the injurer to provide a remedy. Those who lump make no determined effort to shift any of the financial burden associated with their injury to the injurer, but rather, they rely on whatever resources they have at their disposal (i.e., financial, psychological, and spiritual).

Professor Engel further attempts to explain the reluctance of Americans to confront their injurers by scrutinizing the existential change brought about by the injury, noting, “[P]ain reorganizes our lived space and time, our relations with others and with ourselves” (Engel at 41). Additionally, notable markers include struggling to think clearly, act decisively, and social isolation. Injury often gives way to compromised thought processes such as depression, disorientation, confusion, and anxiety, with prescription drugs further disrupting the injured person’s ability to think coherently. Professor Engel uses all of this data to theorize that our approach to studying tort law is fundamentally flawed based upon the idealization that “most analysts ignore their consequences and blithely assume that injury victims make balanced and rational decisions” (Engel at 51). I am in agreement with the author and would like to see advancements in tort analytics, focusing on increasing awareness of the blatant disassociation between proponents of tort reform and the lack of empirical data to support the myth which inaccurately portrays injured Americans as litigation-crazed maniacs.

Tort law exists to provide those who are injured a remedy to become “whole” again by requiring the injurer to pay for the loss incurred as a result of the sustained injury. Damage awards are in place to deter others from engaging in similarly negligent or otherwise reckless activities, ultimately recognizing that most tortious injuries are detrimental to our society in general. Continuing to marginalize the impact that injury has on both sociocultural and socioeconomic factors for the sake of perpetuating tort reform serves as a blatant contradiction to the overall policy-driven goals that make up American tort law. The present issue comes down to determining a proper course of action to “…reassess, and propose an entirely new framework based on the best information available about human cognition, injuries, and decision making" (Engel at 65).  Failure to do so ultimately suggests aversion to another American legal preoccupation, “getting it right.”

We are at a juncture in American tort law that demands attention; however, proponents of tort reform will likely continue to perpetuate the idea that we as Americans are too litigious and suit-happy. Conversely, failure to engage in meaningful dialogue aimed at restructuring the framework through which we view injury claims will undoubtedly increase social and cultural stigmas associated with claiming, thus resulting in fewer victims attempting to seek redress. The answers may not be found in more bright line rules, but rather in “…the substantial body of research dealing with injury victims, and the role law actually plays” (Engel at 190).

Media’s Powerful Construction & Manipulation of Public Belief in U.S. Civil Litigation System v. Tort Reform?

By Leah Smeloff

David Engel analyzed various research and literature around American tort law in The Myth of the Litigious Society: Why We Don't Sue, seeking some sort of truth or solution in his findings, and a “more responsible discussion about injuries and the law.”  While I am skeptical of some of Engel’s findings and explanations, as a whole his work was overwhelmingly thought-provoking, shocking and simultaneously exactly what I would have expected.  In this essay I intend to contribute to Engel’s discussion by reflecting and critiquing his work, while also explaining what influenced my perception and ideas particularly in regard to the following excerpt from Engel’s book: 

More than nine out of ten injury victims assert no claim at all against their injurer--even in cases where it is likely that a legal duty was breached and a claim would succeed. In this book, I shall argue that the campaign to reduce damage awards and curtail tort actions is misguided and unfair. It makes no sense to respond to the millions of injuries Americans suffer each year by reducing their access to justice. So-called tort reform has made a serious problem of injuries in our society even worse. Moreover, tort reform has failed to deliver on its promises of reduced insurance premiums and cheaper products and services. 

David Engel, The Myth of the Litigious Society 5 (2016).  As a first-year law student I have been captivated by our common law tort system, especially our class discussions when comparing our “finding fault,” “making the plaintiff whole,” and “deterring society” tort functions with a country that does not have a tort system like New Zealand, because in my opinion, it drastically demonstrates how brilliant and imperative the tort system is in obtaining fairness and justice in society. However, to be completely candid--my perception may be slightly biased, as my Dad is a bankruptcy and personal injury lawyer, but after learning and working through personal injury cases since I was 15 years old, I like to think it has been an invaluable opportunity to have seen the good, the bad, and the numerous factors that come into play in practicing in the real world. Throughout reading Engel’s book I found myself jotting down some of the real-life personal injury cases, and it was fascinating to be able to connect some of the concepts, have some of my questions answered, and to be able to see and engage the law and society with a bigger-picture lens.

Creatively, Engel always seemed to be looking for an answer or solution to case of the “missing plaintiff,” why Americans choose to “lump” rather than claim and “why doesn't the dog bark?” Although it seems counterintuitive, I agree that in order to find the right answers, we must ask the right questions.  The concrete solutions Engel offers seem plausible: (1) increasing access to lawyers, (2) the impact of high profile litigation cases, (3) aggregating plaintiff’s claims, and (4) regulation (not just from the government, but regulations from industries and professions).   I understand Engel’s goal was not to “fix” our tort law system, but instead to reframe the issues in order to get at the root of policy debates and to bring to recognition that most injury victims do not lodge claims against their injurers. Id. at 189.  However, I found his analysis of the consequences, which are ironically the very goals and purpose of the tort system, of the missing plaintiff and why the predominance of lumping matters to be most enlightening and productive because Engel informs his readers in a consequential tone that is clear and leaves a stinging impact.  

The cover of this essay is a picture I found on Twitter a few weeks ago and found it relevant and consistent with a theme in Engel’s book, and the media seem to be the leading agent in constructing and manipulating the public’s belief in many modern day topics, but in this case particularly the media’s powerful roots in America’s psyche--the common phenomenon of perception that the American civil litigation system is out of control, that we sue one another at the slightest provocation, that it is somewhat of a fraudulent system (i.e., cover photo) and that plaintiffs win obscenely large verdicts while the tort lawyers are collecting the big bucks. This rhetoric is so prevalent that this past Saturday while traveling in the car with my family to meet my cousins for an early Easter dinner celebration, a country song in the car came on and it was making fun of the famous McDonald's coffee personal injury case in which the plaintiff suffered third-degree burns and had to have the burned area skin grafted--the lyrics of the song were “spill a cup of coffee make a million dollars.” The line made me uneasy because if anything the the woman only received somewhere around $700,000, and to me it seemed she was cheated, not to mention the humiliation she endured with false stories still permeating society.

I found Engel’s background of tort law to be an important concept to remember, especially in trying to parse the various factors contributing to the “missing plaintiff” problem.  My legal studies professor at UMass Amherst, Professor Paul Collins, profoundly taught us that the legal system does not impose change in society, but that the legal system and for example (idealistically) the Supreme Court rules in a manner that is consistent with what society has evolved to. I found this idea to be similar to when Engel provided: “the degree of civilization in a society can be judged by entering its prisons. The same could be said of injuries--a society can be judged by how it cares for injury victims, how it sanction injurers, how it classifies injuries and how it reduces the risk of injury for the population as a whole.” Id. at 7.

Engel explained how this completely false rhetoric of America being a society dominated by an out of control civil litigation system by providing numerous factors, and of which I found most important was politics, money, and media.  George W. Bush adopted the idea of tort reform in his successful gubernatorial and presidential campaigns, in which tort reform’s message was about lawsuits and injuries and injury claimants to be skyrocketing and the “whiplash Charlie” and “ambulance chasing lawyer” rhetoric began to pervade the media and the popular culture. Id. at 12.

“The cultural impact of tort reform was no accident. Proponents aimed not merely to change the law, as in previous historical cycles, but to change the way the American public thought about injuries and civil justice.” Id.  Unfortunately, when money, large corporations, and politics are in the mix, it never seems to weigh in favor of the vulnerable members of society, in this case the injured plaintiff that does not receive the proper redress or compensation. The vast broadcasting of the myth of America’s litigious society through media was extremely successful, additionally that tort law attracts the attention of Hollywood studios as well as corporate managers. Id. at 18. My mother recently told me she didn’t like the idea of my dad taking personal injury cases at the beginning of his career, and referring to them in a negative tone as "those kinds of cases." I was truly taken aback by her view of the tort system and how prominent and deep the phenomenon was and apparently still is.

Having learned and worked on personal injury cases for my dad, I saw many different factors contribute to why a client would occasionally not end up going through with the case and maybe why other clients would not file at all. I agree with Engel on the various factors that contribute to a plaintiff not filing a claim, whether it be the self-blame (responsibility factor), the cost-benefit, it would be time consuming, and other obligations like work or sick family members. I have seen first hand a variation of the above factors and agree to an extent that those might be contributing factors; however, I found most compelling to be Engel’s research and discussion of the human cognitive process that many people may not file when injured to be made whole again. Professor Murray touched on this concept in regard to juries and research found in their decision making--pathos, ethos, and logos--that humans rarely rationalize or once they have experienced and formulated a decision based on an innate reflex or based on some emotional perception that researchers have found it to be extremely unlikely for a human to upon rational thinking (the last to operate) to change his or her mind. “Responses to real world injuries are rooted in suffering and the failure of reason and clear communication, not in deliberation and careful choice." Id. at 49.

Engel briefly talks of capping the amount of damages a plaintiff can be compensated, and this would be my biggest concern and the only real constructive change in the tort system. For example, the malpractice capping--there was a case where a woman in Texas was supposed to have one side of her ovaries removed and the doctors removed the wrong side and then had to remove the original cancerous side as well, thus, taking away her ability to have children completely, and in which under the capping regulations in Texas, she could only receive the maximum amount of $500,000. This is extremely destructive to the social order of society, but also extremely complex because how does one value damages for a life with children she would have been able to have, but for the mistake of the doctors cannot experience that and will experience insurmountable pain and suffering?  A different kind of capping system that I experienced first hand will forever stay with me and would be the very first thing I would wave a magic wand to change is the capping system in Massachusetts on insurance policy.  A personal injury client of my dad’s that I worked on last summer was a boy my age who was as a result of an almost fatal car accident, was paralyzed from the waist down.  The insurance policy capping regulations that Massachusetts has and that I am still grappling to understand, only would allow this now paralyzed 23-year-old boy to recover $20,000, because that was the policy of the defendant and driver of the car who caused the life-changing injuries. The social order will most definitely break down and have catastrophic consequences when injured plaintiffs are not fully compensated and made whole. 

I think Engel crafted a simple yet superb discussion on injuries and the law when defining the consequences of the plaintiff who “lumps” and is not made whole and how its effects will disrupt the very purposes and functions of the tort system: (1) the predominance of lumping distorts tort law (cannot compensate victims effectively if it reimburses a mere handful of the millions who are harmed each year ... and it cannot deter injurers if it leaves most of them free to engage in further irresponsible behavior with little likelihood they will suffer any sanction); (2) the absence of claims weakens tort law’s early warning function (the signaling function of tort law can be either weakened or eliminated entirely if most injury victims never bring a claim or even consult a lawyer); and (3) injuries without remedies are bad for our society (injuries without remedies create a social underclass whose needs must be met--I would also add a social upperclass in which seems to only receive protection and compensation from the legal system). Id. at 179.

“If we as a society value the goals of compensation, deference, loss distribution, and corrective justice, we will have to find other ways to achieve them rather than relying on tort law is it currently operates.” Id. at 179.

More Americans should sue: An analysis of David Engel’s research

By Nick Booth
According to author David Engel, the entire conversation on tort reform is based on a misconception. In Engel’s book The Myth of the Litigious Society: Why We Don’t Sue, the following question is proposed: why don’t more injured people seek legal recourse? (Engel, location 80). The inquiry leads Engel to one imaginative hypothesis: tort reformers change public opinion to be anti-plaintiff, through public relations campaigns, which causes injured individuals to avoid the tort system (Engel, location 116).  For Engel, the problem of the missing plaintiff can be explained in part by social disdain for plaintiffs in the tort system, a finding that would have most people reevaluate how they view the legal system, as well as creating a need for a solution to correct the aforementioned misconception. 

Tell a random person on the street that Americans are over-litigious, and they would probably agree with you. However, as Engel found, “approximately nine out of ten injured Americans choose to lump rather than claim” (Engel, location 354). The act of lumping is when a plaintiff with a valid legal claim “. . . absorbs the wrong rather than taking action against another party” (Engel, location 323). Lumping is not limited avoiding a lawsuit, as it can occur when an injured party avoids any potential remedy, maybe insurance or arbitration, in favor of incurring the cost themselves (Engel, location 336).  Engel’s argument is that the public has built up feelings of resentment towards opportunistic injury plaintiffs, possibly looking to scam the system, when in reality that plaintiff does not exist. Of course there are individual plaintiffs that take advantage of the tort system through deception, but this phenomenon does not happen frequently enough to consider opportunistic plaintiffs a problem worthy of tort reform. There are two interesting answers for why lumping occurs, personal reactions to actually injuries and real efforts to falsely frame the public’s perception of the tort system. 

First, injured people do not act rationally (Engel, location 2522). As Engel points out, “. . . the disabling effects of an injury, especially a traumatic one, reduce the likelihood that victims will demand compensation from the injurer or will seek help from an attorney” (Engel, location 2536-42). Therefore, there are behavioral explanations for why people might not be immediately act in their own self-interest when dealing with an injury caused by another person. Second, there is a negative public view of the plaintiff’s role in the tort system (Engel, location 2542). People are not willing to ostracize themselves from their social groups by becoming a tort plaintiff (Engel, location 2548). However, this negative view is not held by accident, but was instead the formed through public relations campaigns. For example, the common misperception that Sella Liebeck was a frivolous plaintiff, suing McDonald's over a coffee spill, when she was in fact the victim of a horrific incident caused by risky business practices (Engel, location 1802). Thus, not only are individuals themselves unlikely to be mentally and physically capable of pursuing a claim after an injury, plaintiffs are also publicly discouraged from pursuing claims. These are two answers Engel provides for why the myth of the over-litigious American is both wrong and pervasive.

While Engel’s discover is clearly interesting, as it challenges the widely held norm of over-litigious Americans, it leads to one conclusion: tear down the current debate over tort reform. Before reading this book, I also held the incorrect view that Americans are more likely to sue and blame someone else for their injuries. However, being informed that most injured parties don’t sue created a new set of concerns. The main concern I took away from this reading is how powerful the misconception of the tort system is for parties looking to avoid future tort lawsuits. Defendants not only benefit from favorable public opinion, which means more support from potential jurors, but they are also, in reality, not being sued. Therefore, if the current discussion about the tort system, and any potential tort reform, is allowed to continue, then the system will continue to favor defendants, both at trial and by suppressing plaintiffs. 

To rectify the problem of the missing plaintiff, Engel proposes an opposing campaign to change the cultural perception to match the reality of how many injured parties actually make claims against the party that injured them (Engel, location 2795). However, any opposing campaign would be going against the established public opinion that individuals are waiting for the first hangnail that they can blame on an opposing party in court. Thus, it would be interesting if there was a way to accelerate this change in public opinion. Moreover, it would be a positive experiment to see more injured parties sue. If that were to happen, then the public could finally decide whether Americans are in fact over litigious or if there are real injury claims that need to be remedied and prevented.

Throughout The Myth of the Litigious Society: Why We Don’t Sue, Engel creates an interesting counter narrative against the view of the over litigious American. For Engel, the problem of the missing plaintiff can be explained by both examining how individuals react to injuries and how groups have sought to create a false narrative about plaintiffs, which is a finding that can help to challenge the false narrative for its readers, and is beneficial to any campaign that would wish to change the public perception of the tort system. If Americans were actually too eager to file injury suits, then the actions of these plaintiffs could lead to positive regulations, industry practices, and remedies for injured people.

Thursday, May 10, 2018

American Tort System: A Roll of the Dice

By L. L. Wilson

The Myth of the Litigious Society is an easy read delving into David Engel’s perception of why many people in the United States don’t feel compelled to utilize the American tort system when a civil wrong has been committed against them. For the most part Engel’s reasons appear to be based on facts and research and is quite believable, but it feels like the list of reasons is incomplete with the author leaving out the most obvious reason that people don’t file tort claims. I believe that the missing and most obvious reason is it being an elaborate form of gambling.

Early on in the book on page 12, Engel writes, “Put simply tort law converts human pain and suffering into money.” Although the statement is sometimes true, it really boils down to a roll of the dice. The truth is that nowhere does the legal system promise anyone that their human pain and suffering will be converted to money. Suing is risky financial business. It is a game where only some win and often times both sides loose money, pride, and faith in the system. Players only know some of the rules and even those can change after that game has started.

When interviewed last year, Judge Posner explained just how unstable the rules of the game can be. He stated, “I pay very little attention to legal rules, statutes, constitutional provisions.” “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?” The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

There is no hiding the fact that judges and attorneys know how to manipulate the system and are not shy in doing so.

Great companies minimize or balance risk through risk management. They have short and long term financial plans, growth plans, rainy day funds, and emergency funds. They make sound business decisions. Conservative is safe when it comes to investing. Give a conservative investor a relatively low return on investment over the long haul and they are happy because it’s reliable. It is a known quantity. It is a low financial risk. It’s not a gamble. The tort system attempts to lure investors into the risky investment of litigation with the hope of getting rich. There are too many variables and unknowns to make it a sound investment in time, money, and emotional health. Often times the plaintiff ends up loosing more than he or she would have had they not sued. It’s just not worth the gamble.

After spending more than 50 years on the planet earth, I have passed up many opportunities to file valid lawsuits. Viable claims span from negligent exposure to asbestos, cancer causing hydrocarbons and chemicals, to discrimination, sexual harassment, civil rights violations, assault and battery, and medical malpractice. Throw in a wrongful birth and failure to educate, and it’s a fairly complete list of possible cases I have passed on.

There are four questions I asked myself when deciding against each and every possible lawsuit. I viewed it as a business decision first. How much would it cost me? How much time would it take? What would be the additional stress load on my loved ones and me? What are the chances that I would win? Not a single one of the questions I needed to move forward could be answered prior to starting the process. Everything was variable. Everything was a risk. The math simply didn’t work. I am certain that if I came to this conclusion, others faced with the same dilemma have too. The American tort system is a lottery, and worse than that, suing is often just a bad business decision.

By not filing lawsuits, we are back to the vigilante problem. Cement shoes, sending people for dirt naps, breaking legs and stealing chickens aren’t my things. Instead I figured law school was the best solution for my situation. All four of my questions had reasonable answers before spending a dime on or committing to law school. I knew how much time and money it would take. Statistically, I had access to attrition rates and knew that the odds of “winning” were more in my control than not. According to my Posner math, coming to law school was cheaper, would take less time, would be less stressful, and it’s better for society. Additionally, the money spent on law school has higher odds for a better return on investment than filing any of my potential lawsuits.

If I dusted off the magic wand I would wave it around and adopt a compensation system similar to New Zealand’s. The problem of holding the bad actors accountable would likely still persist but I don’t think the American tort system is as much of a deterrent as we’d like to think it is. Americans are being injured and not being compensated and it should not be about luck of the draw or roll of a dice. All Americans should be compensated for their injuries even if it is discounted.

The Elephant in the Room

By William Makell

In David Engel, The Myth of the Litigious Society (2016), Mr. Engel dances around crucial reasons why plaintiffs actually do not bring cases to court. Mr. Engel is correct in his determinations that many claims go without being presented to the court but falls short in reasoning as to why. Mr. Engel argues, in part, factors such as the intellectual level of the plaintiff, and goes into lumping, claiming, naming and other preliminary difficulties of establishing and filing a cause of action. However, the real reason why plaintiffs don't bring claims is because plaintiffs do not want to go where they feel unwanted – the court.

As a paralegal I did not deal with the legal issues and theories of my cases, but instead I spent most of my time directly engaged with the needs of the client. I interviewed prospective clients in regard to matters such as new automobile accident related injuries, new landlord tenant related injuries, and new land owner negligence related injuries. In each example, Mr. Engel is close, but not on point, to identifying the reluctance of the client regarding bringing cases against the injuring party. For example, my clients tend not to have the luxury of being able to lump even if they did want to lump. The real reason why my middle-age clients, who are so poor that they can only afford to live in places with falling down ceilings, are actually afraid to initiate causes of action in court against said slumlords, is because of how they would be perceived in the court itself. Mr. Engel’s scolding of the plaintiff in reference to them being possibly lazy or overconfident is vastly is misplaced and overreaching. In Mr. Engel’s conclusion he reasons that the feats of cognition are prone to biases and mistakes that arise without our awareness. In so, Mr. Engel fails to consider that clients are fully aware that when they go to court they will be locked at poorly and possibly with disdain – a potentially emotionally traumatizing experience. Without wrestling with a lack of confidence in the court system, as a conscious choice for why claims are not brought, Mr. Engel’s analysis will never be complete.

Businesses are people too, my friend, but only business wins. Mr. Engel has a hard time wrestling with the idea that most cases in American society are not brought by individuals who were born with a pulse and blood coursing through their veins. However, in most cases like the overly used example of automobile accidents (which are consistently referenced as examples), action is brought on behalf of insurance companies against insurance companies. His readily used example seems to have a built-in flaw of physically injured person with insurance company as named plaintiff. Mr. Engel should deal with the fact that most litigation is not brought by breathing individuals against breathing individuals and therefore the model used to represent the “process of injury,” such as lumping, claiming, and litigation cannot be the root cause that produces a lack of filing petitions. But for the sake of argument, even if we were to limit Mr. Engel’s rationale to breathing individuals, his “decision trees” do not factor in an unfavorable perception of the court as a possible deterrent. Mr. Engel does not examine the level of disdain many plaintiffs tend to assign to the court system out of frustration because of the court’s being perceived as not being able to deliver relief. For example, (1) how likely is it that a wrongful death case against the a local police office would prevail and (2) even if there were injury then (3) does the perception and assumption of how the court will behave (not the plaintiff or defendant) bear on the plaintiffs decision to bring suit? Yes, of course it does.
Mr. Engel spends time in Chapter 5 speaking of responses to injuries. He gives us examples of “backtracking”; he also speaks of potential clients freaking out about legally sophisticated issues in essentially unsophisticated manners. But Mr. Engel never really goes into the rationale that plaintiffs simply do not feel welcomed by the court. Maybe the plaintiff begins to engage in what Mr. Engel has described, simply because the plaintiff is reluctant to bring the suit, having nothing to do with injury or defendant guilt but rather because it concerns the indifference toward the court. In other words, if the public genuinely viewed the court as an agency of relief, then would not the human rationale subconsciously or consciously persuade the public to seek said relief at said court? Operating in natural self-interest would compel the everyday person to go to the venue in which they believed they could find the relief in which they sought. To me, it does not appear to be the client’s self-perception, as Mr. Engel seems to suggest at times, but rather the reluctance to sue stems from the client’s perception of the court process itself. This occurs regardless of perceived fault, and this unfavorability of the court tends to outweigh the unlearned client’s causation analysis, as Mr. Engel also suggested.

Mr. Engel does not consider the fait popularity of the court to be a factor shaping a culture of missing plaintiffs. Mr. Engel makes a wild assertion that persons of lower socioeconomic status were most likely to benefit from personal injury claims and did not espouse them simply because they have internalized the predominant cultural norms favoring lumping. Mr. Engel then goes on to blame the media for said norms. However, not once does Mr. Engel suggest that the same class of people do not sue simply because they are used to not receiving relief from the court on a general basis. This specific population among others, for example, tends not to believe the court will administer justice even when plaintiffs display valid claims. Instead of taking Mr. Engel’s suggestion that we ought to refine media tactics, I would suggest that the reasons why so many injury victims make no claim at all despite their sometimes desperate circumstances is because they do not believe in the system itself.

Mr. Engel’s conclusion regarding how the culture might change actually fails to address the elephant in the room of an unfavored court system. Without Mr. Engel addressing the failures of the court, then Mr. Engel’s analysis will always be incomplete.