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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