Saturday, April 14, 2018

Do We Have To Litigate?: Claiming vs. Lumping

By Lebron Durant

One of the prominent things I learned from David Engel's book, The Myth of the Litigious Society: Why We Don’t Sue, was the whole theory of lumping and claiming. I never thought to myself how, when an individual faces harsh injury or is victimized in any way, he or she may be hesitant to file a lawsuit against the injurer. In the book, Engel spends a chapter diagnosing how victims are torn between the decision of moving forward with the claim against the injurer, beginning from the moment the victim is injured. He uses two terms to describe how a victim would decide to move through the process of acting against the injurer, which are claiming and lumping. Page 21 defines both terms for further understanding. Lumping is when the injured relies on one’s own health and accident insurance or on government benefits. In my opinion this is would be almost like the easy way out for the injured. They, the injured individual or victim, would use lumping to find a way of “being made whole” that takes little to no effort on their part. Claiming is defined as the opposite of lumping. It is any effort by an injury victim to force the injurer to provide a remedy to the injured for the incident. This requires more effort because now the injured is seeking justice on their own. They would use claiming as demanding to be made whole or some sort of compensation for the acts of the injurer. The injured victim uses claiming to ensure that the injurer does not cause another individual to be victimized with the incentive of “paying” either literally or figuratively for what they, the injurer, has done.
According to Engel, approximately nine of ten injured Americans choose to lump rather than claim. This shows the importance of litigation in American society and how victimized individuals are not as aggressive in the legal world as some, me being one, may have believed. There are different factors that play on an injured individual choosing to lump or claim. That may be the extent of the injury, who the person is that injured the individual, the financial stability of the injured and injurer, and the dynamics of the incident itself. All these factors play a critical role in lumping and claiming. The civil dispute resolution system in the United States in my opinion used to be very frivolous. Growing up one thing I always heard from people after any injury was, “that’s a lawsuit,” “I am going to sue,” and “Can you sue for that?”  Hearing all these different statements and questions led me to believe that it was easy to sue and that everyone sues for any and everything. Engel shows that litigation of civil cases is not as black and white as people may believe. Page 24 states, “when the victim must make a voluntary decision to press a claim or consult a lawyer, lumping is the overwhelming result even when injuries are debilitating and life altering. The logistics of litigating a civil case are far more complicated than one may believe.

Engel uses a model on page 31 proposed by William L.F. Felstiner, Richard Abel, and Austin Sarat to describe the stages in the development of claims. These four stages showed me how victims are influenced not to continue with litigation and forcibly end up lumping because of the stress faced post injury to the victim. These stages describe how sometimes the effort taken in assuring a case is litigated properly and the injurer faces ramification for their acts will sometimes outweigh the injury itself.

Stage one is described as “Unperceived injurious experiences.”  I would describe this as when the victim is unaware that litigation is possible because of the injury and the extent of the injury by the injurer, causing the victim to lump without fault of their own. Stage two is “naming.”  I would describe this as when the victim finds a reason for why they are injured but have no idea as to the causes of the injury and where it was derived from. Here the inured knows that they are injured but has no one to blame, again forcing lumping. Stage three is “blaming.” Blaming is when the injured individual knows the causes of their injury and who may be responsible for the injury. The problem is that with blaming, the victim does only that, blame. There is no further action on the part of the victim. Blaming is a basic understanding in the victim’s mind, why, how, and who is responsible for the injury but choosing not to move forward. Last is claiming,” which was described earlier as the opposite of lumping. Here the victim takes a full stance on the injury by either legal action or personal interactions with the believed to be injurer, and looks to be made whole or compensated for the acts of the injurer.

Claiming may sometimes also lead to lumping. When a claimant decides to sue, steps such as finding a lawyer, the negotiation process before litigation, time and effort all play a huge role in claiming turning to lumping. Because the claiming victim is seeking remedy, the steps needed to assure a remedy suitable for comfort is so prolonged that the claimant then settles for lumping. My conception before Engel on this topic was what I believed to be the general consensus. I knew that the legal process takes a long time to kick in and get started but what I did not know was that lumping was a very often exercised way of victims after injuries. I also did not know there are forms of lumping that sound and look like claiming but still considered lumping by the victim. When action is not taken from the victim, and they do not seek remedy directly from the injurer, the actions of the victim begin to look more like lumping than claiming.

Another theory that caught my attention in this book was the societal and cultural effects on lumping and claiming. On page 141, Engel brings up the famous McDonald's case and speaks on how this case should have been lumped, had it not received such dramatic response from media exposure. Engel speaks on the inner details of the case, which most people did not know, unless they did extensive research. Engel describes how certain events in the case were bought to light to have more of an effect in the media. Also on page 137, Engel discusses how a woman’s community and the reactions she believed she would face caused her to rethink lumping over claiming. Society and culture plays a huge role on lumping and claiming. The fact is people care about how the world, if the case is significant enough, will perceive their case. The problem I see in this is that, none of these factors should determine what is significant to be claimed by a victim of injury. In my view and injurer should face litigation and prove how and why the injury was not a fault of their own, even if it is negligence.

A way in which I would reform the U.S. tort system would be through forcing litigation for all seriously dangerous and repugnant injuries. What would happen is that there would be no settlements or lumping in my tort system. When an injury is characterized by statute as seriously dangerous and repugnant, the injurer must face litigation and defend themselves before the court.  The only problem I see with my system would be one question, “Who or what defines how dangerous or repugnant an injury is?” That would be a statutory question based on how each state defines the significance of different injuries associated within that state. Basically, the general U.S. tort system will require immediate action of seriously dangerous and repugnant injuries, but the state law would decide which type of injuries would be properly characterized as to both elements. 

In conclusion, I feel I learned a lot from Engel that I never thought much about in the U.S. tort system. The way an injury can be ignored or become a big spectacle, or even just a quick, subtle litigation process, were things that never crossed my mind. The theory of lumping and claiming was also very interesting in that it helped narrate how an injured individual may face struggle from the moment of injury.

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