Saturday, March 24, 2018

The Litigiousness of America: Fact v. Fantasy

By Michael John Westerman
Americans engage in lawsuits at an alarmingly low rate, allowing for significant levels of injury without compensation, whether in part or full. A discourse have developed surrounding the topic, into which many academics have contributed their perspective, including David M. Engel. The most significant message that rings throughout the content of Engel’s exploration in “The Myth of the Litigious Society: Why We Don’t’ Sue” of the true nature of American litigiousness is that, frankly, American are not particularly litigious. In fact, American society has evolved in just the opposite direction, a key message of the book that Engel endeavors to unwrap in an attempt at suggesting shifts that could turn the tide towards appropriate justice that makes victims of injury truly whole. In the modern era however, injured persons are more often than not failing to pursue the justice necessary to become “whole”. In fact, according to data presented in the book, some 81% of Americans who experience injuries do not consider claiming, 10% consider claiming yet fail to take action, and while 10% of persons may take some action, just 4% of injured individuals hire an attorney, while only 2%, 1 in 50, injured persons actually file a lawsuit. David M. Engel, The Myth of the Litigious Society 23 (2016) (Hereafter referred to as “ENGEL”). The reality of the situation is, Americans are not sue-happy individuals who welcome into their lives lawyers willing to right the wrongs they have suffered from their injuries, but instead stoically, and foolishly, shoulder the burden of injury on themselves and their families. 

Engel notes the rise in the reluctance of Americans to engage in litigation as being due to a concerted effort on behalf of the puppet-masters of modern society, the civil planners, to discourage the common citizen from pursuing lawsuits to achieve appropriate and proportional compensation from those parties that have wronged them. Despite a glaring lack of litigiousness in American society, politicians including G.H. Bush aggressively pursued tort-reform objectives that served to de-incentivize the pursuit of damages and compensation by injured victims. The most significant message of the book, and one that seemingly contrasts with reality, is that Americans are not particularly litigious. The media and political landscape’s portrayal thereof is rooted more so in fantasy than fact, demonstrating the powerful nature of propaganda to influence the perspective of the masses in directions that may not be in their best interests. While the degree of propaganda in terms of anti-litigation may be less aggressive than that which compelled the United States into a war with Iraq over the events of 9/11 perpetuated by Afghanistan, it has nevertheless reached a similarly pervasive degree, in that popular opinion has been nudged into a position that is effectively a polar opposite to reality.

The psyche of America has been pushed away from noting the importance and value of tort claims to achieve wholeness. Such a recognition brings rise to a consideration of the concepts of claiming or lumping, the latter defined as “to put up with; resign oneself to; accept and endure”, to describe the opposite of filing a claim, however viable the cause thereof may be. ENGEL 20. As opposed to filing a claim to achieve justice following a legitimately compensable injury, Americans are engaging in lumping, accepting the injury and enduring its repercussion without pursuing the very justice the tort system entitles them to. The civil dispute resolution system in the United States is a machine, a vehicle, and as with such objects, one is incapable of achieving progress through them without first getting into the driver’s seat.

The progression of injury moves through naming, blaming, and ideally, claiming. ENGEL 31. When individuals experience injury, the assignation of responsibility is the first step towards recovery. However, most persons in the United States fail to pursue such compensation. This is influenced by the cognition of injury, and the perception that is allocated to it. Often, individuals will experience an injury that has the capacity to be lasting and impactful upon their lives, however their understanding of what an injury is, and which injuries are compensable, is plainly incorrect. Id. 128. Prior to having read Engel’s work, my perspective of the American tort system and the willingness of individuals to pursue justice was quite similar. I have witnessed the inactivity of injured parties doing nothing about it, and resolved to not be an injured sheep who is shorn and continues to be directed along by the shepherds of society. Each American has the capacity to be a wolf, and when harmed, can and should growl and bite to take our pound of flesh back to in turn become whole after having been injured to our detriment. The civil court system is highly accessible in terms of small-claims lawsuits, and for claims that are larger in nature, the willingness of organizations to settle prior to a lawsuit is a compelling reason to initiate actions and pursue wholeness and justice where otherwise lacking.  

Engel concludes his book with the rumination that the “public debate [surrounding injury claims in tort law] should center on real questions and should be informed by real facts, not bizarre and demeaning fantasies.” ENGEL 196. While there is no magic wand through which the misunderstandings of American society pertaining to injury and tort law can be corrected, the same mechanism deployed to create this perspective may also be capitalized upon to shift the tide of public opinion away from the propagandistic fantasy that benefits corporations to the detriment of citizens, and towards the recognition of individuals’ right to compensatory wholeness. While the efforts of personal injury attorneys have somewhat notified the television-viewing audience, readers of newspapers, and even billboards, of their right to pursue claims following injury, further proliferation of the message that compensation is possible must be undertaken, and through channels that hold more legitimacy in the eyes of society than the pejoratively labeled “ambulance chasers”. Politicians have a duty to protect and serve their constituents, and thus the shift should come from the top-down, with politicians backing a public-service awareness campaign that teaches Americans of their rights upon injury, and the means for them to achieve wholeness without personal expense when the injury experienced was no fault of their own, or through only proportional personal expense should liability for the injury be shared. This of course will not happen, as those in power have perpetuated the myth of the litigious society to benefit their bottom-line and those of their corporate campaign backers and sources of funding, and thus lawyers capable of informing and serving the public are all the more essential to the provision of justice for the injured American citizen.

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