Tuesday, May 1, 2018

Maybe victims aren’t irrational

By Philip J. Fry

In his book, The Myth of the Litigious Society: Why We Don’t Sue, Professor David Engel sets out to determine why the American public fails to file suits after having been injured in some capacity. Engel provides the reader with an assortment of possible reasons based on culture, environment, mental state, and influencing factors that every person in America experiences day to day. These factors are based on research Engel has read or used previously to make his argument or define an understanding behind why Americans are not as litigious as they probably could, or should, be.
At the start of his book, Engel states that injured victims are not rational decision makers. This single statement particularly impacted me and stayed present in my mind while Engel continued on for eight more chapters dissecting human thought trying to reason why Americans, in reality, fail to litigate as much as they should. He looks into the reasons victims do not confront their injurer based on the layers of pain they endure, how the mind does not operate independently of the body, how victims are frail and fallible, how human environment does not promote litigation, how victims fail to see causation, and, potentially most importantly, how negative stigma of seeking redress cause victims to make conscious decisions not to confront their injurer. While there is no way to truly to determine why Americans do not file suits following injuries, it seems as though Engel does not address two major possibilities: apathy and fear.
A simple google search of “America/America suing/American lawsuits/Why do Americans sue so much?” will show a wide variety of scathing articles that scorn Americans for complaining so much and for going to court every possible chance they have. While in reality, per Engel, only 10% of people actually take action. Many researchers and experts have written extensively about this topic and many plainly state that either Americans do not actually care enough to sue, or they’re genuinely scared of the possible outcomes. While the apathy aspect can be loosely drawn from Engel’s analysis on culture and the impact, it seemed as though Engel did not even address the possibility that maybe Americans just do not care enough to enter into the lengthy, and quite expensive process of actually filing a suit.
It is common knowledge that going to court is expensive. It’s broadcast on the news, portrayed in movies, detailed on cable news exposes; Americans fear losing money. In a normal situation, an injured party would hire an attorney with extraordinary fees which often don’t guarantee a successful outcome. Even if the party goes pro se, they will be responsible for filing fees, which aren’t cheap either, and be tasked to possibly take a day off from work to attend a hearing which they might not even know how to do. All of these factors play in the mind of these injured parties which, empirically proven, deter them from even hiring an attorney. Engel’s initial implication that victims are not rational decision makers is offensive to the general public. Just because someone chooses not to file a claim does not make them an irrational decision maker.
Building off of the fear of losing money, it’s also possible that some Americans are just afraid to speak up. Engel details the cultural environments surrounding Americans and the perception of pain and injury. To shed light on recent public action, we can look to victims of sexual assault. For years, victims stayed quiet, sat in fear, remained the “dog that doesn’t bark.” It was only recently that high profile culprits were dragged through the metaphorical dirt and exposed for the actions they have taken against countless people. It would be interesting for Engel to provide an edit to his book that highlights the extraordinary number of claims that have come out in the last year and a half after more people have become more vocal about past incidents.

Prior to reading Engel’s book, I was in the camp of people who believed Americans were highly litigious: going to court every chance they had just to win an argument, or dispute, or let the world know that they were wronged.  But after just reading a handful of pages, I realized how incorrect my assumptions were, albeit the data he provided is quite aged. After reading the book, I am more curious than ever; wondering, just like Engel, why don’t we sue more? It is possible that all of the factors he detailed are the reasons behind it, but maybe it’s just not that deep and Americans just do not care as much as they could.

While the American tort system is deeply contested, it would seem almost impossible to “wave a magic wand” and create a solution. To even prompt that theory would mean that there is in fact a flaw or a set of flaws creating a major discourse. Perhaps the American tort system is exactly how it should be. Perhaps the way Americans handle injury is already the optimal approach. The major problem of trying to find a solution is that it would create even more arguments in the way the judicial system works. At the end of the day, no magic solution is going to force people to file their suits and maybe that’s the most American way to approach the issue at all.

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