Tuesday, April 17, 2018

A Journey of a Thousand Steps

By Taylor Chase

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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