Saturday, April 14, 2018

Book uncovers the mistaken world view that Americans are notorious for frivolous lawsuits

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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