Wednesday, April 18, 2018

Lumped Up

By Michael McVeigh

I guess I knew what I was in for when we were prescribed a book titled, The Myth of the Litigious Society.  This would be a both an explanation of why our preconceptions about the American tort system were wrong and an analysis of the reasons that brought us to this point.  What did surprise me was the breadth of topics and elements from which the author drew to arrive at his conclusion.  Engel explores subjects ranging from religion, friendships, media, and sleazy attorney advertisements to examine why an inordinate amount of people choose to “lump” instead of pursue a lawsuit when they become injured.  He offers a list of solutions that he suggests may help “reframe the questions we ask” about why most injuries are not considered for litigation.  In his conclusion, the author notes that he’s observed a cultural change in the way society views claimants and tort claims; a shift away from filing suits and towards quietly lumping.  Part of this cultural shift the author assigns to a mass media influence, one that’s propelled by a group of tort-reform lobbying groups (p. 140).   Out of the entire book, I found this claim to be the most surprising.  
My opinion may be the minority, but if someone told me that the cultural trend was for injured parties to be less inclined to file suits I wouldn’t have believed it.  American society certainly seems to be becoming more stratified; more haves separating from the have-nots.  That message is continually pushed in the media and most recently, during our 2016 presidential election cycle.  To read an explanation that the cultural trend was to forget about filing suit, to simply be quiet and to work through an injury, was jarring.  To me, that would indicate our society is one where people eschew looking for the payday, or as Engel puts it, an attitude that pursuing legal remedy was “antisocial and uncultured” (p. 136).  I agree more with Lawrence Friedman, the author cited in the book, who proposes that Americans expect that injuries should be made up for with “total justice” (p. 135), the idea that if you’re hurt and it’s someone else’s fault, you’re entitled to something.   

To bolster my point I sought out some statistics that might help illustrate that Americans aren’t afraid of reaching out for payment, that they’re not culturally shamed or media-influenced enough to not collect money from someone else.  For a metric that I thought might parallel the idea that Engel was going for, I looked at a graph that compiled data from the U. S. Bureau of Economic Analysis.  This data tracked the dollar amounts spent on the federal Supplemental Nutrition Assistance Program (SNAP) from its inception.  Since Engel uses a thirty- to forty-year time frame as his basis for the cultural shift, I did the same with the graph.  In 1980, the government spent $8.214 billion dollars on SNAP benefits.  By 2015, the most recent year available on the graph, that spending had increased to $68.723 billion dollars (  Particularly dramatic was the six-year period between the years 2007 to 2013, where SNAP spending increased from $30.9 billion to $74.6 billion.  That does not seem indicative of a culture unwilling to advocate for itself or embarrassed to make a claim for money.   One may say that the two groups, legal claimants, and SNAP beneficiaries are far apart, and it’s comparing apples to oranges.  I would disagree on the grounds that the conclusions that Engel arrives at would not just apply to tort action, they would have much wider implications. 
The other point in which I don’t agree with Engel is the premise that media and advertisements have helped increase the number or "lumpers."  Throughout my life there have always been two mainstays on network television: medical dramas and criminal/legal dramas.  I’d argue that none of them made legal action seem overly-daunting or scary.  If anything, television made a successful lawsuit for damages seem like a winning Powerball ticket.  Maybe anecdotal evidence is frowned upon in academic research, but I’ve lived in several different states throughout my life.  I have never known a single person who was wrongly injured and felt the way that the people in this book felt; that it is better to remain silent and "lump" because your community might look down on you, or that a religious belief made visiting an attorney a sin.  It could just be that Mr. Engel found a completely different set of people when he conducted his research in Sander County, Illinois, but those experiences seem foreign to me.  Another element that the author believes helps contribute to the elusive plaintiff is the large number of unscrupulous attorney advertisements.  These advertisements erode the public’s impression of the legal profession and therefore helps keep the number of claims down.  I’m not sure I agree with that premise either because legal representation, like any other industry, is governed by the market.  If these sketchy ads are so distasteful and unappealing, then why are they everywhere?  Would not the amount and frequency of these ads increase competition and help drive the cost of legal representation down, thus making it more attainable for a prospective claimant? 
If I were tasked with helping rebalance the tort system more toward potential plaintiffs, I would begin with increasing access to lawyers and reforming class action lawsuit awards.  One of the biggest conceptions about class action awards are that they’re not worth your time.  I’m sure most people have received an index card in the mail from a law firm at some point because we were a registered consumer of a product under class action litigation.  It’s not worth the cost of the stamp to send the card back because the payout seems to never be larger than $20.  If there were a way to get involved in a class action lawsuit early and without so many parties that the payout is completely watered down, then perhaps more people would pay attention to these types of suits.  Another potential solution to rebalancing the tort system towards the injured would be to encourage more legal aid agencies in low income areas.  These agencies could be furnished by attorneys either working pro bono, from a pool funded by a bar exam fee, or from civil action filing fees.  The goal would be to make legal representation more accessible and less private.  To avoid innumerable frivolous lawsuits, the attorneys in the legal aid agency could evaluate the merits of a claim before proceeding.  Any potential plaintiff who didn’t meet the standard for subsidized representation could still find representation at a private law practice.  It would act like a public defender’s office, serving clients who met certain criteria.  Each office could further narrow their clientele by allowing only certain types of claims, like automobile collisions or workplace negligence.  This would give people the ability to walk in to a non-private agency and have their claim evaluated by an attorney, and at a very minimum, given an honest opinion about the merits of their case.

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