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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