Wednesday, April 18, 2018

'Nothing is real but pain now'

By Erika Martinez      

The headline for this reflection is from the song "One," by Metallica, inspired by the 1938 novel, Johnny Got His Gun.  Richard Crouse, Who Wrote the Book of Love? 156-157 (2012).  This popular anti-war novel, written by black-listed author Dalton Trumbo, is from the perspective of a soldier who awakes in a hospital bed and slowly begins to comprehend and cope with the fact that he has lost his arms, legs, and majority of his face.  Dalton Trumbo, Johnny Got His Gun (1938).  After reading chapter three of Engel’s book, Johnny Got His Gun immediately came to mind; Johnny had to learn how to cope with the loss of limbs, despite having phantom pains, and as well as learn how to communicate despite having lost such capabilities.  Engel’s chapter titled "How Real People Experience Injuries" discusses the plethora of trauma associated with injuries, from the struggle of attempting to express pain to the psychological impact and habit of self-blaming. 

While reading this chapter I was surprised to find myself reading it from a non-legal perspective, but instead with the realization that this chapter focuses on real individuals who have suffered a real injury and real pain; although as law students we have been taught and conditioned to view the world through a legal lens, it is still vital that we retain humility and self-effacement.  We must still remember that future clients who have suffered injuries are still people deserving of understanding, and as Engel states “…pain and suffering are so fundamental to injuries that even tort law recognizes them and deems them worthy of compensation…” (pg. 40).  This chapter subtly reinforced the mentality that as attorneys we must advocate for our clients while still acknowledging their genuine pain. 

The majority of time we assume that the pain a client has felt and suffered is physical pain, however, Engel thoroughly analyzes and explores other types of trauma suffered.  The most eye-opening subject he mentioned was the aspect of self-blame.  Engel suggests that society has a tendency to blame the victim, which seems to be unfortunately true in today’s society.  He goes on to note that the modern tort system allows an injury victim to be compensation if the harm results from “both from the wrongful act of another and from their own contributory negligence” (pg. 47).  However, Engel quickly reminds us that the real world all too often takes the view that when the victim does something wrong, they lose their privilege to demand the injurer to take any responsibility. 

I must admit that while studying concepts such as contributory negligence, it seemed as though it was concept that made sense in real-life legal scenario; I must also admit that the concept of a victim not being able to recover damages due to their own lack of care seemed like a legitimate mentality.  All too often we are quick to not award the victim if they played a part in their injuries – after all, why would it make sense to compensate a person who was injured or victimized, but also contributed to that injury or victimization?

However, after reading this chapter, Engel has brought this concept into a real-life scenario that focuses on the victims as individual people, rather than a client or paying customer.  As Engel states, nearly 43 percent of people blame themselves of their injuries.  Personally, this seems to be a staggering amount, and an amount that should be lessened.  This mentality of self-blame has been found to be “far more powerful than the rule of law” (pg. 49).  After reading this chapter I have come to realize that I was one of the people who made the “assumption that victims should have taken greater care…” (pg. 48).  Yet Engel has very much brought that mentality to light, displaying the fault in that rationale.  

I do believe this overall should be changed; injured individuals should not feel guilt for an injury beyond their control nor should self-blame hinder their decision to seek the justice and compensation to which they are entitled.  Although practically it may be near impossible due to the issue also being a societal one, I would like to see a more accepting and understanding tort system, as well as a less victim-blaming civilization.  While I do believe the tort system has done an adequate job thus far in allowing victims who have contributed to their own injures to be compensated, I do not believe enough has been done to remind victims that it is acceptable to sue the party that in fact caused them harm.  Self-blaming is still too prevalent, which lessens victims’ willingness to sue.  Should self-blaming be lessened along with the negative stigma linked to victim’s compensation be destroyed, victims may be more willing to come forward and sue the faulted party, leading to more individuals feeling whole and more satisfied with the justice system.  However, this would also lead to a more congested justice system and create a severe strain. 

Ultimately, Engel raises several points throughout his book, ones that are not often considered.  After thorough research and an in-depth analysis of the modern U.S. tort system, Engel points to a various amount of reasons why many individuals today do not sue.  Had Johnny been thinking about suing for the loss of his limbs, Engel has demonstrated that even if Johnny had such capability, a lawsuit may not have ever made it to fruition. 

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