Thursday, April 19, 2018

Against Popular Belief

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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