It appears that American legal society has mastered the art of imputing individual behavioral thought processes and responses within the litigation stage. One need only take a minute to realize that the torts of, let us use, negligence, recklessness, and infliction of emotional distress, all compel a legal team (from the filing to the ruling) to analyze the wrongdoer’s and victim’s psychological processes before and after a specific moment in time in order to evaluate damages and make the plaintiff whole. This collusion of law and cognition, only after an individual has far surpassed the potential to lump, serves maximally to redress wrongs, deter injurers, redistribute loss, and enact some form of justice, perhaps allowing the rest of us to sleep just a little better at night. As David Engel points out, however, it is the psychological consideration of the human mind and how society and culture interact with individual decision-making, which will prove more operative in both debunking the myth of litigious America and reforming the tort system which has counter-intuitively placed us in our current predicament.
The fact that American legal society so aptly applies human behavioral activity into the determination of an outcome is not so mysterious; law curriculums and legislative reform focus on the litigation stage itself and not on the steps that lead a victim to file a claim. Practitioners and scholars of the law ought to turn their attention to the factors, which Engel delineates in about 200 pages that repel a potential litigant from legal proactivity. In his eighth chapter, The Social and Cultural Environment of Injuries, Engel invites his audience to ponder, “how the ideas and perceptions of injury victims emerge from the organic connection of mind and culture” (p. 127). Personally, one of the most provocative opinions Engel offers his readers is the number of environmental factors and conceptions, disseminated through the media, which explain why the dog does not bark. “These include the naturalization of injury and the emergence of value systems that encourage self-sufficiency or stoicism rather than the demand for a remedy” (p. 145).
Contemplation of these factors in the context of civil dispute resolution is something to which I am foreign and by which I am intrigued. The notion of self-sufficiency is one that I associate almost immediately with American, or more broadly, Western capitalism. The amalgam of struggle, followed by perseverance and achievement, respectively, and the self-confidence that results, equates to self-sufficiency; this formula is one, to which much of the capitalistic world arguably owes its entrepreneurship, skill, and wealth. Engel asks us to implement this formula to the world of litigation, or to the steps preceding it. In doing so, it becomes apparent that independently overcoming an injury, without involving the system, “helps” an individual avoid the title of a “socially destructive parasite.” This, as the book points out, is the better approach according to society, so as to remove the threat to self-sufficiency, the “moral fiber of our nation.” It appears therefore, due to Americans’ obsession with this notion of resilience, the idea of deterrence, one of the primary objectives of tort law, is met with reluctance and ignorance to the fact that lumping can lead to risky behavior.
The second factor, on which I wish to briefly harp, is that of stoicism. Where my automatic association of self-sufficiency comes from growing up in America, my beliefs about stoicism have more to do with my Greek heritage. Stoicism is a school of Hellenistic philosophy, one of personal ethics informed by a system of logic. My immigrant parents inspired this mode of addressing life by teaching fortitude and pride, pride in success and failure. Before reading Engel’s book, I had not considered that individuals are hesitant to make claims and encourage other injury victims to file out of fear of diminishing the value of stoicism. Individuals do take great pride in solving their matters absent assistance and believe that doing so harbors character and introduces successful behavior. Both self-sufficiency and stoicism are vital to society, but in positioning these values above rectification and deterrence, society unknowingly turns a blind eye to the influence of those with deeper pockets, who are calculatedly embedding the narrative of forbearance in society, perhaps to society’s detriment.
We can easily see then, that legal stoicism is having a moment, and we as dutiful students of the law, would benefit in brainstorming ways to get it out of its funk. If the circumstances are as Engel has described them, then perhaps our tort reform ought to focus on psychology first and the law second. Reform efforts should aim to adjust law school curriculums in order to encompass the entirety of the litigation process. It can only be beneficial to attempt to study the laws, which govern our society from a more holistic perspective. Such an approach will induce professors and students alike to more precisely understand the factors that fuel our tort system. Those factors can also lend to a greater understanding of each individual tort itself and the psyche of the injured and injurer at the time of an accident. Such an inclusive perspective can then contribute to more effective remedies and compensation, ultimately satisfying the overarching goals of tort law.
If we start with tweaking curriculums to incorporate a little psychology, we can inadvertently begin to alter the narrative running through American society, which has been framed in a way more favorable to the big guys. Armed with a better understanding of what causes victims to lump, law students, professors and law practitioners can spearhead the movement to refocus attention on the victims and how their injuries are deserving of compensation. It would be most effective to do this through the technology we have been blessed with today. As one of the most potent sources for disseminating ideas, we would be smart to take advantage of the expressive freedom afforded to us by social media outlets and utilize them as the virtual meeting-place to start talking about changing the way we think about injuries and our injured fellow citizens, igniting a new cultural perspective on the subject matter. If we are successful at our attempt, which I would imagine would take a few tries, those who are injured will begin to seek professional opinions on their situations and those who must be held accountable for their wrongs will be, consequentially exacting the most ideal form of justice.
Talk of reform is often met with disdain, as altering the status quo is never an easy venture. Nonetheless, the reform that I have herein proposed starts at the grassroots level, which I believe makes it a feasible approach. Making some alterations to the type of educational information that is available to law students will produce exposure to psychological responses to injuries, which will have lawyers, professors, and all of society listening. Perhaps this is wishful thinking, but sometimes just a better understanding of the inner machine of the human will induce the law to just fix itself.