By Christina Suh
The Myth of the Litigious Society uncovers the mistaken world view that Americans are notorious for frivolous lawsuits. The author states that based on research
conducted, 9 out of 10 Americans would choose to “lump” or simply accept
litigious situations as part of life’s misfortunes rather than filing a claim for
their injuries (p 22). This surprised me
because while I predicted that the numbers would be low, but I didn’t anticipate
the percentage of people seeking legal remedy would be that much lower. Engel also brings up an interesting point of how
justice, or loss distribution cannot be utilized to its fullest form if the
victim does not come forward. He further
explains reasons why people would choose “lumping” by summarizing various
aspects such as causation, physical, social, and cultural environment that plays
with outside factors such as influence of others (p. 15).
The book is informative in describing the complicated
emotions that the plaintiffs can experience after an accident, different from expected,
apparent, and obvious physical injuries. Most
often ordinary people don’t consider the psychology of how real people experience
injuries after trauma. The book does a
great job in depicting how plaintiffs can undergo life changing events such as
struggling to think clearly and act decisively, causing impaired communication
leading to social isolation, self-blame, and from all these surrounding circumstances
after the accident. The injured becomes a different person. Engel actually goes as deep as elucidating
how one’s life can be drastically altered including new found anxiety, fear, insomnia,
followed by depression which covers the aftermath of trauma, making the process
of litigation even that much more overbearing (p. 49). Litigation often takes a long time and comes
with emotional costs, which also can not only deplete one’s pocket but take a
toll on life.
However, even after reading these interesting perspectives, I
found Engel’s fundamental reasoning and explanations as to why Americans don’t
sue a bit limiting. Engel states that
“the great success of the tort reform movement is its exaltation of the ethic
of individual responsibility." The great
failure of tort law’s defender is their inability to convince the American
public that most tortuous injuries are rights violations that harm society in
general (p. 14). While I do agree that tortious injuries harm society as a whole, I am not sure that the primary issue
that causes lumping is because we cannot convince the American public that
most tortious injuries are “rights violations” that harm society. Rather, many injured end up resorting to
lumping because we lack affordable and predicable ways for the society to
address these kinds of issues with litigation.
Even if Americans somehow found lawyers who are willing to
represent tort cases, there is yet another layer to be addressed. Defendants with deeper pockets can afford
seasoned lawyers who have an advantage over newly minted struggling solo
practitioners who are most likely to take these small cases. Some solo practitioners may not even take
risky cases meaning less probable chances of winning, but if they did decide to
go against the bigger-pocket defendant, competing with an opposing firm that
can afford costly expert witnesses and additional research will be difficult. This is not to state that small solo
practitioners are less capable than big firms; however, cost of litigation and
being able to front the costs of litigation can nonetheless play a factor in
reality. Sadly, society can’t even fully
blame lawyers for wanting to take less risky cases that generate more
money. Most attorneys work long hours to
pay back the student loans that they’ve incurred obtaining law degrees, and they
too need to sustain a living. Engel
mentions the settlement mills, and while large number of cases do settle in
order to avoid high litigation costs, as research shows, most injured end up
lumping in my opinion because they can’t even find representation if their case
are predicted to take long hours but not generate enough settlement or damages
in the end (p. 182).
It is illustrated then the famous frivolous lawsuit supposedly
awarding millions of dollars to a careless 79-year-old Stella
Liebeck for spilling hot coffee on herself is not our average claim. The plaintiff in this case was able to find legal
representation despite her contributory negligence because her defendant was a
major corporation, McDonald’s. If Ms.
Liebeck was suing a small mom-and-dad coffee shop under the same scenario, she
may have ended up lumping her claim as well.
Moreover, had it not been for a sympathetic jury that did not care for the
big corporation’s callous indifference toward an elderly customer suffering
burns from defendant’s coffee, the plaintiff would not have recovered at
all. And in fact, the actual amount that
Ms. Liebeck collected in the end was not in the millions but closer to $480,000
for more than two years of the plaintiff’s life engrossed in the highly anxiety-driving, complicated process of litigation.
Engel also asserts that not all lawsuits against big
defendants have a same outcome. In a
similar situation, 91-year-old Luz Marina fell because of faulty design at St. Patrick's Cathedral, but actually received no compensation for her injuries. In this situation, the defendant was a major
church with deep pockets, but because the court found the plaintiff to be contributorily
negligent, and “the moral consideration arising from view of the society toward
the relationship of the parties,” Ms. Marina’s injury was considered her own
risk and fault (p. 111). Based on these two situations, even claims against deep pockets
may not be worth years of headache, because in the end outcome is uncertain, again, showing reasons why many injured do
not litigate. It may be too big of a
loss for both clients and lawyers to assume these unpredictable results.
Lumping presents whole new economic and social issues
because there are transactional costs associated to society. The injured may decide to lump, but not being
able to work because of injuries or emotional sufferings, in return, will drive
up insurance costs in addition to possibly increasing government assistance funds. Furthermore, people are taking matters in
their own hands using power of technology and vast online resources. There are growing populations seeking self-remedy
by representing their cases as pro se litigants.
Recently companies are trying to develop robot lawyers and making simple
legal forms such as wills and trusts template forms available online. While all of these issues may not seem like a
big deal on their face, there will be bigger social issues as people are realizing
that it is less likely for defendants without funds to be sued, decreasing incentive
for certain populations to avoid litigation, by the same token increasing moral conflicts. If there are greater chances of no-pay consequences
for small torts, there is less incentive for society to live by what is
considered a right conduct by the majority.
Engel in his book doesn’t discuss enough realistic trends as
to why Americans can’t pursue litigation.
I wish he had included a chapter dedicated to solving the plaintiff’s
dilemma, in having to weigh lodging a complaint against costs, time, and
aggravation, and finally what we as a society should do to address the new
growing trend of pro se litigants. While
Engel does explain some of the consequences of lumping and possible solutions in
his conclusion, again, I was hoping for even more concrete solutions and novice
strategies.
If I could wave a magic wand, I would find a solution to
make legal representation affordable as well as reliable for everyone. Just as health care is not a luxury, being
able to speak against injustice or being wronged should not be a privilege only
for those who can afford lawyers. I am
not sure whether the New Zealand Accident
Compensation Act is
necessarily the right answer, but I also don’t think it is fair that Americans end
up lumping or having to take matters into their own hands.
While it was not an overnight quick solution, progressive
movements after years of diligent, relentless legal training in society are
finally paying off. We are just now
seeing changes in American culture from decades of sexual harassment training
and reaping the benefits as people are gaining the courage to speak up and
finally standing up against their predators.
I hope with continuous efforts from progressive citizens, these kinds of
training will enlighten citizens of unacceptable behaviors and teach people how
to handle uncertain situations to prevent future harassment. I also want to note
here that inceptions of these trainings began because of litigation from sexual
harassment cases.
In addition, I would propose for more training programs for
lawyers upon graduation. Medical
students receive residency training which allows them to gain varied
experiences through residency rotations preparing them to practice on their own
if they so choose. Many private
physicians are allowed to continue teaching and remain current in their
practice by maintaining an affiliation with a major teaching hospital. While most law schools now encourage clinics
and internships, I am not sure that it is sufficient compared to medical
residency. I am not suggesting that
lawyers are forced to years of traditional low paid residency upon graduation,
but perhaps there can be an improved form of residency model for lawyers after
graduation, at least as an option.
Finally, I hope America will be an actual litigious society
for those who deserve to get their voices heard and as a citizen’s right. Everyone should get an opportunity to at
least have their cases heard with competent representation. While an issue may seem frivolous at the first
glance from a non-involved party, whether a case is worth being heard should be
a decision for the legal system. If
there were a way for unfair injustice to be addressed because of constant
litigation, maybe that would enable legislatures to make changes or amend
rules to prevent future claims and deter people from doing harm to others.
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