By
Matt Metcalf
David
Engel informs readers that studies prove that around nine out of every 10
injured persons at the hands of someone else end up lumping for a variety of
reasons.
Many
people see the injured as rational actors or reasonable persons, but Engel goes
through several explanations of why injured persons are obstructed from
thinking clearly, which ultimately interferes with any avenue to claiming. Chapter
three, in particular, addresses how real people, as opposed to the mythical
rational actor, experience and deal with injuries. The injured person’s ability
to plan their next move rationally is negatively impacted because existential
change forces them to become strangers to their own bodies (p. 41). Hindering
effects of injuries occur in a number of ways, with depression, loss of social
acquaintances, fear of scrutiny, post-traumatic stress disorder (common with
motor vehicle accidents), and self-blame all leading to lumping (pp. 42, 43,
48).
However,
I believe that the severity of the injury is key, which is something that Engel
doesn’t address. He lumps injury victims into one category, but mildly injured
persons should still be able to use their minds rationally and determine whether
or not they should claim if they were wronged. He makes good points if the
injured is hurt so severely that thoughts cannot be processed with a mind at
ease, but he should have distinguished between the two more clearly.
Before
reading David Engel’s book, my belief was that the highly-advertised injury
lawyers reigned supreme, battling the tortfeasors while deterring against
injuries. Now, I do view the United States civil dispute resolution system
differently. Now that I know that only one out of every 10 injured people claim
following their injuries, it does make me question the effectiveness of tort
law and its mission to deter against injuries, as well as my view of the United
States as a litigation-crazed society. There is a perception in this country
that there are several people out there who are out to scam the system and make
a quick buck through claiming at the drop of a hat, but the results of the
studies asserted in Engel go against those popular views. What is ultimately
right and wrong is up for debate, but Engel certainly makes a persuasive case
regarding what amounts to be the ineffectiveness of tort law in the United
States.
In
an ideal world, many more people who are actually injured would move away from
self-blaming and lean more towards claiming to penalize tortfeasors and deter
them from similar actions in the future. Before reading this book, I would have
never been a proponent of an increased amount of claiming, as I was one of many
Americans who thought that claiming was much more common than lumping. However,
with knowledge available now that proves otherwise, a perfect tort system would
be one that decreases the occurrence or injuries because those who injure
others would be on the receiving end of a penalty that would up the level of
deterrence. But, first, as noted in Engel’s work, a mammoth step away from
lumping is needed to achieve that. Victims need to stop seeing their pain as a
punishment for a wrong and halt the self-blaming. In a perfect tort system with
the wave of a magic wand, all injured persons would be made whole and all
tortfeasors would be the ones punished.
Overall,
Engel’s work brings up some interesting points that certainly go against
popular beliefs in the country. Although it was somewhat repetitive, the book
certainly makes persuasive arguments for a minority opinion. After reading
Engel’s work, I will unquestionably think twice before calling the United
States a highly litigious country.
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