Sunday, April 15, 2018

Have we muzzled the dog?

By Gregory J. O’Neill

I find people confusing.
-         Mark Haddon, The Curious Incident of the Dog in the Night-Time 14 (2003) 

There is a mystery afoot.  In Haddon’s book it is not a non-barking dog that gives rise to this mystery, for it is the dog itself that was the victim.  If you are to believe David Engel, we are the silenced victims.  I will not give away too much from Haddon’s book, as it is only peripherally useful and clever as a play on words, but I posit that perhaps Engel believes that his dog hasn’t barked for the exact same reason that Haddon’s didn’t; it too has been murdered. (‘silenced’ may be more appropriate here, but ‘murdered’ makes it more dramatic)  

When injured, Americans seek remedy at a surprisingly low rate.  “Lumping” is the act of not acting.  David M. Engel (Engel), The Myth of the Litigious Society 20 (2016)   The result of lumping is that many of us are left uncompensated for our injuries.  Not only does this fly in the face of the common perception that America is an overly litigious society, but it also distorts the desire for balance between the injured and injurer that Aristotle espouses.  Shapo & Peltz, Tort and Injury Law 147 (3d ed.) quoting Jonathan Barnes, The Complete Works of Aristotle 1786-87 (1984).  Americans have, in fact, tipped the scales in favor of the injurer and we (as the injured) rarely, if at all, do anything to make ourselves whole.  The data Engel uses claims that 81% of injured Americans do not consider taking action, 10% consider action but do not take any, 10% of injured person take some form of action, while only 4% hire an attorney, and just 2% actually file a lawsuit.  Engel at 23.  The fact is, that Americans are not the justice-seeking crusaders as we are sometimes portrayed.  That might sting, but an injury, albeit slight, is an injustice (in the Aristotelian meaning of the word) and when nine of ten injured persons rely on their own devices to remedy their harm, injustice has been done.

We are the Dog

A combination of factors will keep us dormant, even after being injured.  Engel posits that the human mind may be one of the causes for the lack of litigious action in American society.  Humans ‘suffer’ from “status quo bias.”  Engel at 61.  The object at rest tends to stay at rest and where the mind is concerned, subconscious reasoning will generally overwhelm our conscious thought.  Id.  The subconscious mind races through scenarios and outcomes too fast for the conscious mind to interpret.  While we believe that we are rational actors, our sub conscious through “overconfidence”, “framing effect”, and “base-rate neglect” tell our conscious mind that our irrational response to injury is actually the rational and correct thing to do.  Simply put, we are easily convinced (by our own brain) to do nothing.  
I was always of the mindset that the rational person will not “lump”, though I figured it was not always as simple as “act” or “not act.”  Before reading Engel’s argument, I probably would have fallen into the Felstiner, Able and Sarat camp that outlines a linear progression of claim development. Engel at 31-32.  (Though this has nothing to do with the fact that Professor Sarat taught the best class I ever took as an undergrad.)  I figured there were levels of injury and circumstance that would prevent people from acting along the path towards litigation.    While Engel may not have changed my mind entirely, I do appreciate the compelling argument he makes.
We Don’t Want the Dog to Bark – It Barks at Everything

Our inertia, when it comes to remedying our injuries, is influenced by outside factors as well.  We have been led to believe that we, as Americans, sue too much.  We see the “sleazy” personal injury lawyer ads and are repulsed by what we envision as a “get rich quick” plaintiff-mentality.  Why is it that our brains are hard-wired to that conclusion?  For me, it can be traced back to the ‘Brady Bunch’ episode when Mrs. Brady is being sued for injuries resulting from a car accident.  The viewers all knew that the plaintiff’s injuries had been exaggerated and thank goodness for Mr. Brady’s quick thinking, dropping his briefcase which caused the plaintiff to turn his head quickly, showing that his neck wasn’t really injured and exposing him as a fraud.  We have also been “told” by the tort-reformers that we sue too much.  In his 2005 State of the Union, President Bush made the case that our overzealous sue-happy society is bad for our economy, and even worse, it is holding back women and minority business owners.
To make our economy stronger . . . America must reward, not punish, the efforts and dreams of entrepreneurs.  Small business is the path of advancement, especially for women and minorities.  So we must free small businesses from needless regulation and protect honest job creators from junk lawsuits.  Justice is distorted and our economy is held back by irresponsible class actions and frivolous . . . claims.
President George W. Bush, State of the Union Address, Feb. 3, 2005.  What do Mr. Brady and President Bush have in common?  They have shown us that lawsuits are bad?  Yes, I rationally know that not all plaintiffs are frauds and that our economy does not balance on a litigation pin-point, but my subconscious may.  Engel believes that these outside forces force our brains to a state of “confirmation bias”; where we will find facts and come to the conclusion that we think is right.  Engel at 66.  These outside forces, coupled with the internal makeup of our subconscious will drive our conscious decision-making process to an irrational place where it is better, or more rational not to claim remedy for injury.
Would an ‘Injury-Sniffing’ Robot-Dog be a Better Fit…...or are We OK with a Dog that Sometimes Doesn’t Bark?
The New Zealand system of injury compensation is an interesting concept.  You get injured – you get compensated.  There is no fault, there is no process of hiring lawyers, discovers, pre-trial, trial, judgement, or appeal.  The human condition, which Engel describes as being one of the biggest burdens to litigation, is resolved.  Yet this system too has its faults and, I think, would face immense pushback from insurance lobbyists whose employers make far too much money from our current lump-happy mentality.  However, the New Zealand framework would eliminate our pesky subconscious from meddling in the affairs of the rational and make for a smoother path to balancing the scales of justice for the injured. 
There will always be loopholes and criticism of any system that is adopted.  The current American system certainly does create a culture of lumping, but it strives to be precise in getting justice for those who pursue it.  The New Zealand system takes the guess-work out of compensation, but does little to provide incentive to prevent further bad acts and can be callously analytical when compensation in general lump-sums rather than awarding restitution to make the specific person whole.              

So…has the Dog Been Murdered?

Like the narrator in Haddon’s book, I found myself confused by Engel’s examples of peoples’ irrational decision-making and baffled by his data.  While I do not think we have murdered the dog, we have certainly muzzled it against our better judgement and to our detriment.  Engel’s theories that this irrational behavior is actually rational, or at the very least understandable, is persuasive.  We have been told that we sue too much; thus we believe we sue too much.  Injuries change the way we think; thus we do not take rational steps to become whole.  Irrational acts are totally normative in a sphere of influence that discourages the rational.  The conversation must change in order for our minds and actions to change.  If nothing else, we must engage in “public debate [that] . . . should be informed by real facts, not bizzare . . . fantasies” so that we at least have a chance of balancing the scales and letting the dog bark.  Engel at 196. 

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