By Ilan Stern
In David Engel’s The Myth of the Litigious Society, the common misconception that Americans sue more than anyone else in the world is addressed by Engel to show that in fact Americans don't sue as much as people think they do. Individuals throughout our country have this perception that lawsuits are a great “get rich quick plan” and that individuals who do utilize the system are just greedy Americans. However, our citizens are wrong. In our society more and more people go everyday suffering injury as a result of someone else's carelessness and do absolutely nothing about it. Engel mentioned this concept in the chapter titled, “Like It or Lump It,” where he discusses “lumping” as an individuals lack of effort to reflect the damages that were endured to the responsibility of the tortfeasor. Instead an individual would take advantage of resources that are readily available to them to help recover from the injury caused by another. The problem according to Engel is that Americans are scared to utilize the legal system as they are labeled as money hungry individuals by other Americans who perceive the system as a cruel way to funnel money from one individuals pocket to another. As we continue, it is important to keep an open mind of the system, and of Engel’s perceptions of the litigious society.
In chapter 6, Engel discusses a very important and interesting concept involving the relationship between an individual's “morality and causal judgements” (pg. 91). Engel suggests that individuals tend to not proceed with the legal process because the “preconceptions about the moral character of the injurer are likely to influence our inclination to blame him or her for a mishap occurring" (pg. 91). This is very interesting to me, as I have never thought of “morality and causal judgments” as the reason people don't legally act on injuries caused by others. My perception was based on an injury analysis, in which individuals would assess their injuries and think about whether the time and money is worth dealing with the problem legally. This was eye-opening to me, as I had never thought as far as to think about someone's character being the link between the injury and seeking relief. However, this is very important to address because as a person might not have ill intentions to cause harm, yet their actions still caused harm and responsibility must be taken for the injured party to recover and return to whole.
Engel continues in chapter 8 discussing the perception of injuries in general by society as being non-injuries. According to Engel, injuries are “events that humans in specific social environments habitually name as harmful”; in addition, Engel states that there is a correlation between recognition of injury and the “interaction between humans and their social and cultural environment” (pg. 128). This was extraordinarily interesting for me as it made me think about different cultures and the way that injury can be perceived differently throughout society by different cultural groups. The cultural influence on the perception of injury seems to be a very large issue that I personally have never thought about when discussing our tort system. It was interesting for me to see the different examples presented by Engel, including the Chinese “foot binding” and the “male circumcision” as ways that people around the world perceived injury as complete normality (pg. 130). Before reading the book I perceived society to look at injury from the same lens as everyone else with no cultural influence at all. To me it seemed like pain whether emotional or physical equaled injury. However this is not the case according to Engel, as people might endure pain through different procedures accepted by foreign societies yet not classified their experience as an injury. This tends to diminish the amount of people attempting to use the legal system for means of relief and recovery because they feel through their personal cultural lens that they have not been injured and recovery and relief is not necessary.
After reading and analyzing Engel’s approach and ideology of the litigious society, it has come to my mind a few steps that I believe should change in order for our tort and court systems to resolve problems more efficiently. After some thought it seemed to be feasible to make our tort system private to address the whole labeling of individuals by society problem. If our tort system was to be completely private individuals may feel more comfortable seeking relief through the tort system as society will not have the means to label them because information regarding tort cases will not be public information. In addition our system must do a better job informing the people of the United States about injuries and actions that can be used to seek the justice deserved. In addition it would be beneficial for society to adopt the New Zealand method, as compensation for injury would be faster and more reliable for society. Society is sometimes deterred from using the legal system for its slow process and cost. However if we utilize the same system as New Zealand, then society may feel more comfortable confronting the system directly rather than using the system as an avenue of relief through the pockets of the tortfeasor. The issue of moral character will never have an effect, as the compensation is coming from the government. However with all said and done, this system brings up some problems, as tortfeasors do not receive the appropriate punishment in order to deter them from committing the wrongdoing again. This is where our American system shines, as we look to the tortfeasor for recovery which indeed helps to deter away people from engaging in similar circumstances.