Friday, April 13, 2018

Asking the Logical Folk to Think Illogically

By Jocelyn Frawley

As aspiring attorneys, we law students have only begun to hone our analytical skills in the hope that in three, or four, short years we will join a profession made up of arguably the most logical thinkers in the world. We are learning both how to piece fact patterns together and how to deconstruct them to determine what the likely sequence of events was and what the outcome will be through our legal system. There is a logical explanation that we crave to be able to articulate and eventually prove to either a judge, a jury, or even our peers.

In his book, “The Myth of the Litigious Society: Why We Don’t Sue,” David Engel attempts to shatter our safe bubble of logical thinking. Imagine my surprise when, in chapter 3, Engel argued that injury victims do not think logically after sustaining their injury, which is likely contributing to their propensity to lump rather than claim. Engel explained that the traditional “decision tree” was not an adequate model because the injury victim does not move down a straight path and logically choose his direction when he comes to a fork in the road (p. 38). The real-life experiences of the injury victims in the chapter clearly explained that they do not have the ability to think logically about their next steps. The amount of pain that they are in is at times all consuming, and they can think of little else. Some are unable to think rationally about what caused their injuries or what remedies might be available to them because of that cause. Engel further explores the myth of linear thinking on page 72 in chapter 5. He explains that injury victims move back and forth and all around the potential decisions they may or may not make. The seemingly endless feedback loops were the perfect way to drive home the point that injury victims’ thinking is not linear, and it definitely isn’t logical. Engel’s proposed model, which does in fact look nothing like traditional, academic models, attempts to show this illogical, non-liner way in which injury victims make decisions.
At the start of this year I was surprised to learn of the small percentage of injury victims who actually claim. As a rational thinker myself, it seemed counter-intuitive that someone who had a legitimate claim either wouldn’t recognize it or would not act on it. Even after learning of the misconception I assumed that most people did not bring a claim for monetary reasons. That was the logical explanation to me. Either an attorney would not take the case because it wouldn’t result in a payday for them, the attorney’s fees were too high for the victim to afford, or the cost of litigation would wipe out any damages awarded or be even more costly, so a suit was not worth it. I was convinced that money was the biggest deterrent. Well as Engel explains it, I am completely wrong; a majority of injury victims do not even make it to the point of speaking to a lawyer. If someone could afford an hour's consultation, how could they not at least go and see if the attorney thought they had a good case? I was floored and annoyed with myself for letting my “logical” thinking be so simplistic. A person who is experiencing extreme pain or whose life has just been turned upside down is not immediately thinking of hiring an attorney and bringing a suit. They are thinking about getting through the day, all day, every day, and there is little room for thoughts about much else. I feel much more enlightened about how the experience of the injury prevents a vast majority of people from taking any action, and, shockingly, it makes a lot of logical sense; they just don’t have the mental capacity even to consider it.

If I had the capability to reform the U.S. tort system with a magic wand I would make it so successful plaintiffs were compensated in whole for their actual losses. The compensatory damages would cover medical bills, lost wages, necessary repairs and replacements, etc. When a plaintiff is successful but then the award is not granted in full, especially to compensate the attorney, it is heartbreaking that they still can’t afford the bills resulting from their injury for which they are suing. I think it would be interesting to see compensatory damages not included in contingency fee calculations, other areas of damages increased to help pay the attorney, or a new/expanded award for attorney’s contingency fees. While it would be great to see a plaintiff walk away from a case with the ability to pay for their actual losses, I don’t think this would be feasible in the U.S.  Contingency fee-based cases are common in tort law, and it would take a massive overhaul to change the way contingency fees are paid. Additionally, the defense bar would fight it tooth and nail, arguing that doing so will unfairly burden defendants and juries will run amuck with the amounts awarded. Another thought would be to say that this new damages rule would apply for intentional and recklessness fault states, but not for negligence cases. If a defendant intentionally or recklessly harms another, they should have to compensate that person fully for actual losses and pay additional damages for contingencies. If it was a negligently caused injury, that defendant should have to cover the plaintiff’s bills, but additional awards would appear to be punitive in nature for negligence. This would all take place under comparative fault, of course, so if a plaintiff were 10% responsible for their injury they would be responsible for paying 10% of their actual losses, but they could get the full remaining 90% of the compensatory damages. This reform idea does little for answering Engel’s question about the missing plaintiff, but it would be more successful at making injury victims whole, which our system purports is one of its highest goals.

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