The most interesting piece of knowledge
I retained from Engel’s book was the main point of the book, the phenomenon of
lumping. The action of lumping is when a
person who experiences an injury, they do not confront the injurer in any
significant way. The injury victim makes no determined effort to shift any of the
injury costs to the injurers or hold the injurers responsible for the
harm. I logically knew lumping occurred;
not everyone who experiences an injury that is the fault of another person
requires or wants to go through the lengthy and costly endeavor of a lawsuit. But I didn’t know the extent of lumping occurring in the United States. In chapter two, Engel cites a study done by
RAND that concluded that two-thirds of victims of severe, life-altering
injuries respond by lumping. Additionally, in table 2.1 of the same chapter
shows a breakdown of the responses to all accidental injuries in the US, and
shockingly to myself, it shows that only
two percent of people file a lawsuit in response to being injured. I also found it interesting the reasons Engel
posits for the extremely low number of people that make use of the torts
system. The reasons range from a radical change in the victim’s worldview
because of the injury, to societal pressure not to file a lawsuit, to mere
ignorance of basic tort law. I believe
the reasons victims lump can be summed up in a sentence found in chapter ten in
the section “Mystery Solved: Why Lumping is so Common,” it states,
“Paradoxically, they [the injured] are often overcome by guilt and self-blame.
They are seldom sturdy enough, mentally or physically, to pursue a claim
against someone else.”
The widespread occurrence of lumping was
so odd to me because I had always subscribed to the rhetoric described in
chapter one, namely that the tort system was broken and only used by people and
ambulance chasing lawyers that wanted to extort money from rich companies. Although my views first started to change after
I entered law school and began learning about the actual benefits and negatives
of the U.S. tort system, this book helped change them more by providing the
somewhat empirical data to show that the tort system is broken but in the
complete opposite way from which I thought.
To reform the tort system, we must
first identify problems that can be fixed.
First, the complexity of getting to litigation and coming to a
decision is the torts system best and worst qualities. The complexity prevents frivolous
lawsuits and protects people from being falsely held accountable for injuries. Although
the complexity, or at least the perceived complexity of the tort system and
judicial system at large, scares injury victims away from even trying contact a
lawyer.
If I could reform the U.S. tort system
by waving a magic wand, here are some of the “solutions” I would implement. I would attempt to educate the public about
the tort system; if the public were not
largely ignorant of the tort system and basic tort laws, then they would be more
likely to act when they are injured. I believe the feasibility of this idea is
moderate; it could work in theory, but I highly doubt that enough of the public
would be interested in learning about tort law to make an actual dent in the number of people lumping. Those that need the
tort system the most are usually not in a mental or physical state to learn the intricacies of tort law. Another
idea that could help fix the tort system is to reduce transaction costs. The
feasibility of this idea is also moderate, again, in theory, it would work. The
less money people would have to pay to
achieve a payout from the injurer the more incentive they would have to file a
lawsuit. The problem with this idea is that lawyers and other judicial agents
like getting paid, and rightfully so considering the difficulty of the job, so
unless the legislative branch steps in and limits transaction costs this idea
is not very feasible. Another idea is to increase payouts to victims that
prevail in torts litigation, the higher the potential reward the more likely
victims are to go through the rigors of filing a lawsuit. Although we have seen the general reaction to
that idea is negative, it would most likely lead to more frivolous lawsuits,
and not address the main reasons for lumping and probably exacerbate them. The only feasible idea I was able to come up
with was the implementation of a New Zealand style compensation system. A
system in which one could claim an injury and then get a payout from a government-run system
is not a perfect solution. The main downside
being the lack of full compensation for the victim, but some compensation is
better than lumping. There is also the downside of an effect of everyone paying
into the said system.
Ultimately, reform of the tort system is
very complex and is further frustrated by the ignorance in regard to lumping as
well as lobbying efforts by companies to reduce victim payouts in tort
litigation. A semi-feasible path towards tort reform is to educate the public
about lumping and to decrease the perception of the lying victim and the money-grabbing attorney that seems to be the
majority view of the torts system.
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