Friday, April 20, 2018

Making Litigious Decisions: We Are Not Alone

By Dave Wilson

After reading The Myth of the Litigious Society: Why We Don’t Sue by David M. Engel, it is clear that American society is largely misinformed with regard to our likeliness to sue. While the majority of Americans may think we, as a society, sue at the drop of a hat, this is simply not the case. Instead, most Americans choose to “lump” their injury instead of “claiming” it. Engel explains that “lumping” refers to a situation in which someone absorbs the wrong rather than taking action. On the other hand, “claiming” refers to a situation in which someone makes an effort to force the injurer to provide a remedy, whether that involves the use of the law or not. This was surprising in and of itself, but even more surprising was one of the main reasons for this phenomenon: our relationships with others.

Our relationships with others and the influence they have on our decision-making is explained in chapter nine, starting on page 146 in the book. Engel explains that our relationships with others, whether or not we even may know them, greatly influence our decision to “lump” rather than “claim.” Although it’s clear that even the staunchest individualist does not act or think in a vacuum, I didn’t realize how much of an effect all of our relationships have on our litigious decision-making. Whether it is a relationship with our parents, siblings, family, friends, employers, religious personnel, strangers, lawyers, insurance agencies, or any other entity or individual, they all generally push us in a direction of “lumping” rather than “claiming.” Yes, even the influence from our interactions with lawyers and insurance agencies promote lumping, as explained in pages 163-66; this was surprising!
This is best explained by examining each of the different relationships we have with others to realize how much of an effect they have on our decision to sue or not. The influence can be direct or indirect depending on the relationship. There are great examples in the book which demonstrate this. For example, on pages 153-54, Engel points out that an abusive husband can create a relationship of dominance and submission which causes all of the wife’s decisions to reflect the husband’s wishes. On page 152, Engel explains a case study in which a relationship with a reverend totally transformed one’s thinking of lumping because claiming went against the essence of Christianity. Friends are generally pro-lumping as well. This is because, as Engel describes on page 159, “asserting a claim and engaging in litigation are behaviors that are often attributed to social outsiders, troublemakers, or misfits.” Friends do not necessarily want to be associated with such a person. Parental influence can be huge as well, even into the adult years. Parents are often sure to remind their children that there is an obvious, “natural,” and correct way to interpret their experiences and respond to them. After reading this chapter, it is clear that most interactions one has with others encourage lumping.
One of the main reasons behind this is that a personal injury generally becomes a significant event in a person’s own personal narrative. As Engel notes on page 155, as they go about their day-to-day living, they are likely to mention this significant event to many different people they encounter. Each time they converse with someone else, it provides them an opportunity to revise their own thoughts through interpreting the reactions and comments of others. This is a continuous loop. And since most individuals have more pro-lumping thoughts and tendencies, this continuous loop can drastically change the way an individual thinks. This is especially true when it comes to the people one trusts the most, include close friends and family. A change to one’s self can occur by interacting with these close acquaintances and it is possible to “become a different person” with a different narrative running through one’s consciousness. This generally means that after conversing with the ones we trust the most, one will have a shared understanding of the accident and what should be done about it, significantly altering one’s initial thoughts on litigation.

This information has greatly influenced my thinking about the civil dispute resolution system in America. Analyzing the relationships we have with others in relation to our litigious decision-making process was something I had not fully considered prior to reading this book. As someone who has never gone through any sort of litigation, my thinking was mostly focused on the actual individual who was harmed (unless that person was a minor or deceased). However, after reading this book, it is evident that our entire web of relationships and network generally push us from thinking “claiming” to “lumping.” It is not about the singular injury; it is about how that injury affects our significant others, children, employers, family, and friends. It is clear now that these are joint decisions and not individual ones, whether one realizes it or not.

It becomes more and more obvious why most people choose to lump rather than claim after thinking about how our relationships influence our decision making. Since most people are pro-lumping from the start, it is easy to see how constant, consistent feedback could greatly alter one’s thinking of lumping versus claiming. This had me personally thinking of a somewhat similar situation in my life. My goal after graduating and passing the bar is to start my own law firm. I’ve always wanted to be an entrepreneur and having “Esq.” after my name may enable me to do this. However, in just the short few months of conversing with close family and friends, I’ve heard everything from “you’re an idiot” to “go for it” and everything in between. It’s hard not for the feedback I receive to become a part of my thinking and potentially influence my decision making. The reactions and comments I receive inevitably become part of my own thinking and makes it even more difficult to make the correct decision.

In terms of the American litigation system, this could have the same effect. On the outside, a situation may seem to be a perfect opportunity to “claim.” But on the inside it may not be so simple. How will this affect their relationships with others? Will their friends think of them differently for being “greedy” or “just going for the money"? Will litigation go against their religious beliefs? Does their employer want them to lump in order to stay out of news for publicity reasons? Will their kids look at them differently? Does their spouse want to go through it all? Prior to reading this book, I had not been considering these potentially endless questions. It is no wonder the majority of American lump rather than claim when thinking of it in respect to relationships and their influence. We do not make important decisions alone, and decisions involving litigation are no different.

If I were able to wave a magic wand and reform the American tort system, I would do so with respect to my newfound respect for the potential influence of relationships with regards to litigation. A main issue one faces when determining whether to lump or claim is all of the different feedback, comments, and reactions we receive from our daily interactions with others. The issue is that each person has their own individual reasoning behind their thoughts which may not align with the injured party. A parent may say “don’t sue” because they do not want to have to see their child in court. A friend may say “don’t sue” because they do not want to be associated with someone who sues. A co-worker may say “do sue” because one of you will get a promotion and they hope you will be too distracted. A lawyer may say “don’t sue” because there isn’t enough money to go around. An insurance agency may say “don’t sue” because they want to settle quickly and inexpensively.

With all of the different feedback from others with completely different reasoning, it is no wonder why more people do not want to “claim.” However, if I had a magic wand I would try to combat this. I would create a panel which would be available to everyone if they are contemplating whether to “lump” or “claim.” On the panel I would include: a judge, a lawyer, an insurance agent, someone who theoretically could be a member of the jury (i.e., a stranger), a governmental official, and any other expert(s) needed in whatever area the situation deals with (e.g., a doctor, an architect, a police officer, etc.). The purpose of the panel would be to serve as a resource for someone to utilize in order to receive honest and unbiased opinions of whether “claiming” is a good option or not. This panel would be free of charge so that everyone has an equal opportunity. With so many different opinions from so many different people, it can be extremely confusing as to whether someone should lump or claim. This would provide an outlet in which the panel is solely thinking about the effect on the injured party; not any other individual in their life. This could be a huge help in determining which path to take: lumping or claiming.

Unfortunately, this idea most likely would not be feasible in America. There are countless reasons for this. First and foremost, as with just about anything else, is the issue of cost. The judicial system is already cash-strapped enough, and this would be a huge cost for each jurisdiction to adopt this. Insurance prices could skyrocket, and taxes may have to increase in order to cover the extreme costs. Another issue is bias. Using my magic wand, each member of the panel would provide completely unbiased opinions focusing solely on the well-being of the injured party. Unfortunately, such a magic wand does not exist in real life and it would be nearly impossible for a group of diverse individuals to all have the same goal in mind. In reality, the judge could provide opinions based solely on the amount of litigation he or she wants to clog up the court room, the lawyer could provide opinions based solely on the amount of attorney’s fees he or she would receive, and so on and so forth. It is highly unlikely an insurance agent would think about he individual over his or her company. Other issues could involve location, resources available, and time constraints. While I think this would help society deal with the huge decision of whether to litigate or not, unless Harry Potter comes walking through that door I do not believe this idea is feasible.

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