Friday, April 20, 2018

Engel's Mind-Body Connection Argument

By Dan Tocci
The Myth of the Litigious Society discusses the reasons why only two percent of Americans file suit, despite the common misconception that our society is litigation-obsessive (p. 23).  Engel proposes a plethora of explanations as to why this is, and how each reason is only part of the equation.  Engel posits that how people experience the injuries, both physically and mentally, the physical environment in which the injury occurred, and the social and cultural environment of the injury are the three large categories from which a person’s decision to sue can be derived. 

Truthfully, before reading this book, even after being in law school for nearly a year, I too believed that lawsuits were abundant, similar to how many 1Ls may initially believe that every appeal is heard simply due to the high-profile cases we read.  Perhaps what is most interesting, yet the premise I am most skeptical of, is the mind-body connection argument Engel makes.
This argument is presented in two prongs.  First, it holds that, following a serious injury, the victim faces an existential change which they struggle to cope with.  If, for example, someone suffered a serious injury resulting in a leg amputation, the amputee will look in a mirror and see someone they do not recognize.  The bodily changes they endure are distinct from their own body, and they become overwhelmed with such an odd sensation (p. 41).  Following these procedures, the victim is typically drugged up so much that they cannot think straight (p. 42).  What’s worse is that many friends they had pre-injury abandon them post-injury.  Often this is because it is hard to consistently provide support and encouragement for someone when progress is slow (p. 44).  All of this negativity leads to self-blame by the injured party.  The dangerous combinations of these factors often create a distorted mental perception of the accident and the world itself, resulting in perception and naming of the injury, but “lumping” it therefrom.  Merely reading cases in which people are injured has left me far too detached from the actual event to ever consider the immediate and lasting impacts these occurences can have.  Learning about these different problems many victims face truly makes me view the cases we read from a different perspective—one, likely, entailing more sympathy for the plaintiff and what they have endured.

The second prong discusses the three interrelated components of our body, being the proto-self, core self, and autobiographical self.  While the section was insightful, I believe it delves far beyond any pertinent information regarding an explanation to why certain people sue, and others do not.  It is empirically obviously that we perceive much through our body and these perceptions affect our thought process (e.g. instant reactions), but I do not believe they play as large a role in our decision to sue as Engel puts forth.  While this could be a combination of my own ignorance and confirmation bias, I believe factors Engel later mentions play a role exponentially larger than that of body perception.

The most compelling arguments Engel put forth are premised on the power of local culture and the media.  Engel’s study of long-time residents in rural Illinois suggests that many Americans do not sue because they value self-sufficiency and individualism over legal rights (p. 95).  This argument resonated with me because, coming from a rural area, I was raised to believe that if you wanted something, you had to work hard to get it.  There are two underlying factors I believe are important to consider here.  First, many people that come from rural areas, at least in my town, are not wealthy enough to pursue litigation as a means of recovery.  Second, many people are blue-collar workers where bumps and bruises are part of the job.  This combination leads to many people either not perceiving the injury, or not believing legal action is even possible.  Moreover, as Engel posits, if you live in a small town and pursue legal action, it is very easy for that person to become a social outcast because of the negative connotations associated with lawsuits (p. 136).  Finally, as opposed to large cities, small towns still allow for the average person’s name to have value.  Many jobs come from recommendations by other locals, and thus a person’s reputation is rather important.  Bringing a lawsuit can impact the value of your name as much as doing a poor job can.  Ergo, living in a small town forces one, in order to maintain a livelihood, to protect their reputation, similar to how it was in ancient societies, albeit not to that extreme.  All this said, I wish Engel discussed further the difference between suing someone from your own community and someone from another town or state.  Additionally, this makes me curious as to whether there is a significant difference in lawsuits filed, per capita, in towns compared to cities, due to the difference in weight associated with maintaining a good name and image.

The second persuasive argument Engel makes is the large role media plays in our decisions to file lawsuits.  Engel references a study which found that the “mass media tended to communicate the ideology of ‘individual responsibility’ rather than the equally legitimate ideology of risk reduction and corporate responsibility” (p. 140).  The example he provides to illustrate this point is the well-known McDonald’s hot coffee case.  The media depicted the case as an uncoordinated, old lady winning millions of dollars for spilling coffee on herself and then suing McDonald’s for not warning her that coffee would be hot.  As the media presented it, and I admittedly believed, this case represented epitome of a frivolous lawsuit and the nadir of our legal system.  After having read this case though, it is apparent that those facts were far from an accurate depiction of the case.  While here the media seemed to more intentionally skew the facts to make the plaintiff, and lawsuits as a whole, look bad, I believe the media also implicitly discourages lawsuits.  The recent John Oliver episode we watched for class addressed the decline of the coal industry, and how discussing such a topic and, particularly, the CEO of one coal mining company, would lead to a defamation lawsuit.  Oliver, undeterred, went on to joke about the CEO and the threat of a lawsuit.  I believe this made viewers implicitly associate lawsuits with immoral, oil conglomerate CEOs.  The episode also made lawsuits look bad from the opposite perspective, as John Oliver, a popular late-night comedian, was now under attack and a lawsuit was the vehicle allowing for this attack.  This analysis relates, in many ways, to the importance morality plays in a lawsuit, which Engel discusses (p. 91).  While Engel associates the morality factor with causation and whether or not the defendant is ‘evil’ enough to be sued, I believe that morality also plays a large part in forming the underlying connotations of what a lawsuit is.

If I could reform one thing about a current legal system, it would be how long it takes to settle a case.  While this may very well be nigh on impossible due to the perpetual congestion of courts, I believe it would truly be beneficial to suffering plaintiffs.  In order to make this even plausible, I believe it would require either a large reallocation of the budget or a rise in taxes, in order to afford more courts, justices, etc.  The unlikelihood of this aside, Engel mentioned that many of these plaintiffs that suffer severe injury continue to suffer day after day for quite some time.  By speeding up the process I hope that plaintiffs who have suffered would feel more inclined to file suit, because it would be less overwhelming, it would be less time they would have to deliberately think about the accident, and it would, ideally, be more feasible because of this efficiency.  Regardless of the fact that this thought is still in a very rudimentary form, I believe it is imperative that our legal system becomes more efficient and does away with the multi-year cases.

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