Monday, April 16, 2018

Engel’s next voyage should head toward #MeToo

By Lord Timothy Dexter


I am not a dog lover. My initial reaction to Professor Engel’s The Myth of the Litigious Society was me saying that a dog that doesn’t bark sounds like a well-trained dog.
Professor Engel’s Myth looks critically at 4 items: (1) the popular misconception of American litigiousness; (2) what the reality is and reasons for it; (3) the consequences of the misconception’s popularity; and (4) some direction as to what the next steps could be. According to the misconception, Americans sue each other at the drop of a hat for mostly illegitimate reasons. Our legal system is stuck in a court-clogged and lawsuit-obsessed Hell. Ridiculous personal injury, medical malpractice, and other typical first-year-of-law-school torts claims overwhelm our courts, which should be reserved for legitimate claims (pg. 66, para. 3). The amount of these lawsuits is either already outrageous or increasing. The problem is not one of pursuing equal justice under the law, but one of unscrupulous ambulance chasers conning innocent or naïve defendants into paying out damages to litigation-crazed plaintiffs suffering from bogus or exaggerated injuries.

The reality couldn’t be more different, Americans do not sue each other for much of anything at all. In 2012, government data showed that accidents resulted in 38 million Americans being seriously injured, and 127,200 more were killed (pg. 4, para. 3). Despite the likelihood that many of these injuries were likely the result of someone else’s actions or negligence, Americans choose to “lump” (they do not take any action, legal or other) in response to 91% of injuries. Only 4% of the injured even hire an attorney, only 2% file a lawsuit (table 2.1, pg. 23). Despite evidence disproving the litigiousness myth, real-world consequences from believing the myth have occurred. Millions of Americans are going through their lives dealing with some injury and its results on their own without the aid of the law. Professor Engel asks us, how can the reality be so different from the popular perception? For a variety of political, economic, and social reasons, Myth tells us why we as Americans do not sue each other. The political reasons include examples of elected officials passing tort reform measures to reduce and restrict claims to stop in out-of-control plaintiffs (pg. 12, paras. 1-2). The economic reasons include expensive legal fees from attorneys who couldn’t pursue a claim unless the defendant could realistically pay something (pg. 101, para. 3). The social reasons include how those that pursue claims are labelled troublemakers, liars, or whiners (pg. 159, para. 2).

Professor Engel does not call for more lawsuits. He does not believe this would be the best solution to the problem. He asks us to make a cultural shift to make our torts and wider justice system fairer. If the goal of tort law is to make the injured party whole, there is no doubt that the American system comes up short.

My most significant response after reading Myth is that Professor Engel should next point his research in the direction of the world of advocacy for survivors of sexual violence, harassment, and discrimination. Myth’s so-called missing plaintiff, an injury victim who opts for lumping instead of claiming, reminds me of the conditions that have led to #MeToo. I do not mean to say it’s an apples to apples comparison. I recognize that trying to convince an American law professor to conduct further research on what can be done about the case of the missing plaintiff by focusing on a movement that has yielded concerns about due process and free speech may seem like a misguided idea. While I personally support #MeToo, I am not suggesting it would on its own be able to solve the case of the missing plaintiff. I am merely saying that I see a link between the problems that led to #MeToo’s proliferation and Myth’s problem of the missing plaintiff. The #MeToo movement is the result of decades of organizing, advocacy, and research that involved a group that was blamed for their pain, called liars, and cast out of professional and personal circles for daring to go after their own abuser. Underneath #MeToo is an army of victim’s advocates, social workers, academics, and more importantly individuals with personal stories of abuse and harassment that have recently captured the attention of the country and slowly begun to shift the narrative on the evils of sex-based discrimination. If we are to find our missing plaintiff, if we are to figure out why the dog isn’t barking, if we are to help tort law achieve its goal of making injured people whole, then injury sufferers themselves will need their own version of #MeToo.

Professor Engel is an excellent early explorer, charting the waters for future research on this matter (pg. 171, para. 1). With Myth, he has arrived back at the home harbor after years at sea, sailing on ships named for his fantastic and brilliant research assistants. Our professor gave his 1L torts students an assignment to write a reflection essay answering three questions about Professor Engel’s Myth. He also encouraged us to be creative in writing those answers. Consider me one of the amateur explorers who meets Professor Engel in the harbor. From my amateur cartography I have drawn a map suggesting where this expedition for the “missing plaintiff” could go next. Obviously, law school is not traditional graduate school. I don’t have research assistants. I’m not writing a doctoral thesis. This essay is the result of a series of thoughts I had while reading this book. As that amateur explorer, I am trying to tell Professor Engel, “El Dorado could be here on the map, but I can’t make any promises and I don’t have the time to figure it out myself.”


Myth did teach me a lot about the reality of litigiousness in America, but more important than what it taught me the book reframed the problem in my mind and how I think it relates to a wider social and cultural malady impacting our country: victim blaming. To put it simply, I just hadn’t thought of it that way before. How I viewed the stereotypes of injury victims changed and Professor Engel helped me realize that these victims are subject to all the other drawbacks that trauma survivors suffer from. To be clear, Myth is not just about victim blaming. It’s mentioned as only one of many reasons why potential plaintiffs lump their injuries. But to me, Professor Engel’s overall characterization of how injury victims are viewed by themselves, our society at large, their communities, and even their support networks sounds a lot like the experiences of victim blaming that are common to other survivors of injury and violence.

Myth only describes victim blaming in the context of the case of the missing plaintiff. Professor Engel gives us research which suggests injury sufferers do not pursue legal claims because they blame themselves or are otherwise convinced that their own actions or moral misgivings caused their injury (pg. 48, para. 2). Worse still, when the personal circumstances of the injury sufferer cloud the exact cause of the pain experienced, it is common for him or her to resort to self-blame or for others to blame them (pg. 90, para. 4). This blame increases the likelihood that an injury sufferer will choose to lump instead of claim, stifling any chance to be made whole.

Before reading Myth, I intellectually understood the concepts behind why many injured people cannot get a fair chance under the law. Implicit and explicit biases, small and large, plague policy makers, jurors, and judges just as often as they do members of the public. Personally, I only thought that the reason Americans don’t sue was strictly due to the economics of it. I thought that the justice system kept out millions of needy litigants because of their inability to pay lawyers. To be clear, this is still a major part of the problem. However, Myth showed me that this is only one piece of the puzzle. People do not just lump their injuries because they can’t afford a lawyer, or because the damages would be too small to justify hiring one. I knew that injury victims often cannot behave rationally nor make a series of decisions along a reasonably linear timeline in response to their injury. I didn’t fully understand or appreciate how or why it applied to tort law and our civil dispute system. Professor Engel gives us a better model to assess how individuals deal with injury (pg. 70, Fig. 5.3). The better model, “deliberately avoids building in any particular normative preferences—nor assumes that people should think rationally, they should maximize benefits and mitigate costs, they should keep litigation in mind as a last resort if all else fails, they should conduct negotiations in the shadow of the law. Instead, it leaves open the possibility that all these things may or may not actually occur. And it remains neutral as to whether the world would be better if they did” (pg. 81, para 2). When I get to use my magic wand, I will further explain why this model reminded me of the activism around sexual discrimination in our country, and why I feel strongly that the next step is to research this and movements like #MeToo.

Last among things I learned and how my conception of our justice system changed, before Myth I truly did not understand how powerfully our communities can convince us to lump and not claim. Professor Engel makes a literary reference to Sherlock Holmes when he asks why the dog doesn’t bark, why people don’t sue (pgs. 3-4). With literature in mind, chapter nine reminded me of all the dystopian future novels I love. A common theme in most of them is that the protagonists explore individuality before eventually succumbing to what their societies force them to believe. In these novels, as in real life, whatever one’s social web suggests is the proper response to something (be it injury or anything really) becomes the normal, rational, and reasonable way to do so. Specifically, chapter nine reminded me of Yevgeny Zamyatin’s dystopian sci-fi book We. In We, after the protagonist is effectively “re-educated” by the totalitarian state, he declares that his society’s rules are the end-point of human development, that all opinions critical of the rulers are unreasonable. While he began to question everything, his reformed self declares that “reason must prevail” over the disorder of individualism.

In chapter nine, Professor Engel writes that the American belief that we behave as autonomous selves is a myth unto itself (pg. 147, para. 3). He tells us the story of Miranda Compton. After Ms. Compton’s daughter is severely injured in an accident her ex-husband convinces her to hire an attorney and pursue damages, of which she eventually receives very little and her marriage ends, and she becomes reliant upon welfare and other benefits (pgs. 149-51). Ms. Compton goes on to feel very guilty for this. Her minister even suggests that her guilt might be justified because she sought money for her daughter’s injury instead of reaching out to God. While the entire ordeal of the injury and the lawsuit were ongoing, her support network constantly reminded her that was a natural (i.e. “correct”) way to deal with her daughter’s injury (pgs. 158-59). A big takeaway from chapter nine is that our own support network can convince us that lumping is morally preferable to claiming (pg. 162, para 2). Ms. Compton went from being a woman who not only chose to claim, but a court found that her daughter’s injuries were actionable, even if the monetary damages were small. Despite winning her case, effectively being told by our legal system that she was “right,” her friends, family and minister told her she was being unreasonable. She becomes the protagonist in We, going from pursuing justice for her daughter to believing that reason must prevail over the disorder of litigation.

I do not mean to suggest that I believe we are living in a dystopian future, but I do find it necessary, and chilling, to point out that the language used in chapter nine did jar my memory about this genre of literature. Professor Engel himself says that most injurer tort defendants have deep pockets whereas injured tort plaintiffs are usually of modest means and lower social status (pg. 101, para 3). I don’t think it’s too far-fetched to say that the 91% of people that lump, who are overwhelmingly of modest means or are low income, whose broken bodies impair their abilities to operate within this world and take part as full participants in our society, they are living in that dystopia whether they see it that way or not. Before Myth, I had not considered the lumpers as part of the Epsilon class.

In short, my conception of the American civil dispute system after Myth is how, through victim blaming and normalization of injury and inaction, society maintains and reinforces many of the wider problems of inequality in our country as whole. In our court rooms, an impartial judge with an impartial jury unconsciously keeps the haves and have-nots apart in justice. 


I would make three changes with my magic wand.

The first would be to psychologically empower all injury sufferers in order to grant them a say in the decisions that affect their lives. I would get them to a place where maybe they still don’t choose to sue, but that they could conceivably be made whole. The U.S. tort system would be readily available to them, with hotlines, interpreters, social workers and even affordable lawyers on call and ready to make sure an empowered injured class could access the legal system if they chose to. Obviously, this solution would require billions in taxpayer dollars being spent on have-nots. If current political rhetoric is anything to go by, there would likely be political fallout for adopting such a progressive and utopian judicial system.

The second wave would free up elected officials to act in the interests of everybody and not just donors, primary election voters (usually 15-30% of all registered voters who are usually more partisan) and legislative leaders (speakers, majority leaders, committee chairmen, etc.). If all rank and file legislators could act reasonably on these issues, the victim blaming and unfair tort reform measures would never see a vote. With all due respect to Professor Engel, he is wrong to believe that policy makers such as elected officials adopt tort reform because they believe the litigiousness myth. I can say that many of them most likely do not. Many elected officials are lawyers themselves, some even choose to practice law while serving their legislative terms (especially in states where legislators are not paid or don’t serve for a full-time legislature). They are lobbied frequently by community legal aid activists who take on low-income clients. They are aware of the realities inside the judicial branches that they approve the budget appropriations for. Whether it’s abortion, labor unions, public education, or tort reform, legislators are more likely to be aware of reality than academics and media credit them for. They take politically expedient actions based on the voting preferences of their constituents, the giving preferences of their donors, or the political pressures of leadership within their bicameral bodies. Realistically in the U.S., if legislators were to adopt “anti-tort reform” as a platform issue they would likely pay for it at the ballot box because their constituents probably do believe the litigiousness myth, or their wealthy donors probably include torts defendants who’d stop donating, or they could face a demotion in seniority from leadership for upsetting the status quo.

The third wave of my wand would be for lumpers to have their own #MeToo movement. This is sort of an amalgamation of the previous two waves. Empowering victims and moving policy are two essential elements of #MeToo. But if Professor Engel is calling for a paradigm shift where injury sufferers can take charge of their condition, then he should direct his ships named for his research assistants towards the lands named #MeToo.

Like in Myth where it is said that many people do not sue because of community pressures such as limited future employment opportunities, being ostracized from social webs, the thousands of organizers behind #MeToo have dealt with survivors and harassment victims who lump their traumas and take no action for the same reasons. Like the lumpers, #MeToo has organized people who originally rationalized and normalized their experiences and chose to take no action. Most importantly, a victim of sex-based discrimination suffers trauma that inhibits the ability to think or behave rationally, and there is a professional support network trained to deal with these victims directly now. The better model Professor Engel asks us to adopt to view how real people respond to injury has already been adopted in similar form by activists organizing survivors of sexual trauma and discrimination.

Considering the feasibility, a #MeToo for injury victims would deal with the same social, political and economic reactions that sex-based discrimination sufferers have for generations. There’s no getting around that. However, these activists are experts in this field. They have dealt with victims who were labelled as troublemakers, were told that they were “asking for it,” or even told that their abuse was “natural.” That is exactly what Myth says is happening to injury sufferers. Professor Engel should reach out to the leaders in #MeToo. The dog might not be barking in the world of sex-based discrimination, but she’s certainly beginning to growl. A start’s a start. #MeToo’s aim is to take people who otherwise would’ve gone without justice and now have a shot at getting something.

#MeToo and Professor Engel are both concerned about making injury victims whole, which seems like a reasonable objective. This amateur explorer believes that reason must prevail.

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