Author David M. Engel argues that the campaign to reduce
damage awards and to curtail tort actions is misguided and unfair. Engel draws
upon the myth of the hyper-litigious American citizen, as public perception
depicts that Americans have an over-arching desire to commence personal injury
lawsuits. The question Engel delves into is as follows: what is responsible for
the fact that most injury victims are reluctant to assert claims and invoke
their rights, when there is strong evidence that the law is on their
side? I stand in agreement with Engel, as I have a troublesome time
drawing vacant accusations that lack credible evidentiary support. In fact, as
Engel presents, the evidence that does exist, and the evidence that is credible,
attests to the stark opposite of public opinion. In an attempt to uncover why
the vast majority of Americans have fallen victim to the hypnotism of the misinformation pocket watch, Engel delves into the reality of personal injury cases as
they exist today.
Engel conducted an all-out
investigation in order to ascertain why the dog
doesn’t bark in injury cases. He states that tort reformers went on in search
of answers to a problem which is not supported by any credible evidence.
Through referencing disciplines quite different and apart from his own,
including rehabilitation science, nursing, anesthesiology along with
neuroscience, Engel has attempted to answer the above question. Engel
referenced the
NSC survey pertaining to physical harms resulting from “accidents,” and what is of particular interest is the fact that illnesses
or degenerate conditions caused by wrongful conduct – such as toxic exposures
or the sale of negligently designed pharmaceuticals – were excluded from the
survey. Engel further notes that there are hundreds of thousands of injuries
and fatalities caused by errors in medical treatment or care. Engel makes note
that nonphysical injuries, such as infliction of emotional distress and
discrimination, constitute the legal definition of an injury, yet were excluded from the
survey. The myth of the claimless American citizen
rushing to the steps of the courthouse due to his/her/their “accident” has been
shattered by Engel.
Two feasible answers to why the dog fails to bark
in injury cases are presented by Engel. The first is the economic analysis,
simply known as the cost and benefit analysis. Engel points out that injury
victims are in fact probably not rational decision makers; this
stems from the numerous studies conducted in cognitive science, behavioral economics, and psychology,
showing that rational thinking and decision making do not follow traumatic
injuries. The second regards cultural explanation, which, as Engel explains, if American culture tends to favor asserting claims with positive cultural values,
this does not account for the infrequency of claim assertion.
Engel’s approach to answering the
question is flawed in the sense that he presumes seeking a legal remedy will
automatically serve to make the plaintiff whole. Further, Engel presumes that
making the plaintiff whole equates to financial compensation. His “like it or
lump it” analysis, where the plaintiff absorbs the wrong through opting to not
pursue legal action against the wrongdoer, or even to approach the wrongdoer to
confront the wrong committed, is also flawed. Engel notes that a plaintiff’s
act of relying on accident insurance or government benefits are all forms of
lumping. Here, Engel presumes that the plaintiff is not made whole through the
relief obtained from the above; further, there is also the strong possibility
that the relief obtained from said two forms comes sooner than a legal settlement,
or a trial, would. Engel, however, provides emphasis upon how motor vehicle
injuries represent a special variation to lumping. He states, “ … motor vehicle
injuries represent a special variation, since the involvement of police and
contending insurance companies is so highly routinized that claiming in serious
injury cases occurs almost without any effort by the injury victim” (24). In all other cases of personal injury, the
victim must come forth and make a voluntary decision to assert a claim against
its wrongdoer. I found this statement to be interesting, for the sole fact that
just as Americans are perceived by society at large to be hyper-litigious,
Americans are also perceived to be hyper-lazy. I strongly feel as though the
two strongly contradict each other.
Just as Engel presents the fact that
America is not the hyper-litigious society that it is believed to be, he also
presents the implied assumption that Americans are comfortable and able to pursue
legal action when they’ve been wronged. The act is certainly a voluntary one;
however, Engel presumes that Americans have the knowledge, resources, and
capability of comprehending the legal process and all it entails. Lack of
knowledge is most certainly at play here; if one is injured yet does not
perceive what has occurred as being an injury capable of legal action, then no
action will be pursued. I strongly feel as though Engel approaches the
situation while operating under the assumption that laypeople are at least
knowledgeable enough to know when they’ve been injured. Laypeople should not
be held to the same level of accountability as attorneys and folks working within
the legal field and as such, should not be held to the standard of knowing when
they have been wronged, as Engel incorrectly presumes. However, Engel does
account for the fact that most of the lumping that occurs within our society is
associated with noninjuries; that is,
pain or harmful experiences that are not perceived by laypeople to be injuries
(127-28). The question is then erected of how are we as a society supposed to
educate laypeople regarding what does and what does not constitute an injury,
if the vast majority of the American society has not and has no desire to
attend law school? The internet, Google, and law libraries only assist to a
certain extent and even then, legal terminology may serve the purpose of
confusing and frustrating the potential plaintiff (this happens to me almost
every day, and I am a 1L student).
Engel dedicates recognition
and dedication to Americans' rather ambivalent view of the tort system as a whole. The vast majority of Americans have displayed
a misinformed position, directly related to the fact that the American tort system converts human pain
and suffering into money. The media, both newsworthy and socially, plays a role
in the American citizen's eye in relation to perception regarding the legal
system. Engel presents the vastly different Hollywood tort plaintiffs, the first being
a champion of the people, advocating
for and on behalf of the people and the second being referred to as a social
parasite, one who pushes the envelope and stretches the limits of
accuracy. It
comes as no surprise, then, that public perception pertaining to personal
injury litigation is highly skewed in favor of the hyper-litigious American
society. Myth though it may be, American society is highly reliant upon the
media, and the various forms in which information is presented. It further comes
as no surprise, then, that the American public is quick to form opinions that
have no credential background and thus lack evidentiary support.
Engel notes that the small
minority of injury victims willing to sue does make a contribution to the
public good. When injury victims come forth, this alerts society as a whole that dangerous situations exist,
and that negligent and reckless actors must be held accountable. Engel states “Personal injury lawsuits,
as rare as they are, can ‘scare injurers straight’ and deter future misconduct”
(6). This is in direct relation to what
we have learned in our torts course this year, pertaining to how tort law
serves as a form of deterrence, prevents anti-vigilantism, as well as makes the plaintiff whole. Engel asserts the question – contrary to public belief – why
the vast majority of Americans are not
utilizing the American tort system as a means of making themselves whole after
they have been wrongfully injured.
Prior to reading the book, I
was under the impression that societal perception pertaining to the initiation of lawsuits was precisely as
Engel has presented it. However, this is not to state that I followed suit;
more so, I operated under the assumption that the process of
searching for and hiring an attorney was neither untimely nor cheap. However, I
was not aware of the factual reality behind the scenes, if you will, pertaining
to the number of Americans who actually assert claims, and who actually pursue
legal action against their wrongdoers. On page 177 in the text, the
predominance of tort law is stated to distort tort law. Engel presents the fact
that informal settlements are often negotiated outside of the courts; what’s interesting,
and a facet of tort law that I was highly ignorant toward, prior to reading the
text, is that settlements actually occur relatively infrequently, because
Americans are not in fact hyper-litigious. As Engel presents, approximately
nine out of ten injury victims never assert a claim nor do they consult an
attorney to assess their case and as such, they do not put themselves in a
position to negotiate a settlement. This runs contrary to my perception
regarding tort litigation holistically speaking, as I was under the impression
that litigants are often pressured into settling due to the high demands and
costs of pursuing a trial. Engel has proven that because ninety percent of
injury victims do not come forth and assert a claim against their tortfeasor,
there is no settling occurring. I agree with the vast majority of what Engel has
presented, and disagree with certain points presented, as is depicted above.
If I were to propose a tort
reform action, it would be as follows: a governmental agency would be
responsible for taking action when a party believes that he/she/they has/have
been the victim(s) of a tortious act. The implementation of such an agency would
serve the purpose of taking the matter out of the potential plaintiffs’ hands,
if you will, who would then present it to an attorney, if the matter was
determined to consist of a legal claim. This
would at least somewhat attempt answering Engel’s question presented in the
beginning of the text, asking why the dog fails to bark in personal injury
cases. Engel discusses the impact of increasing access to attorneys, and how
the drawbacks to the high-volume, mass-advertising appeal have proven to
actually decrease plaintiffs’ actions of seeking legal assistance, but also
have instilled negative perceptions of injury victims coming forth, which leads
to an anti-plaintiff bias among potential jurors in personal injury cases
(183).
In relation to the
intervening governmental agency that would be responsible for reviewing the
potential legal claims of the plaintiffs, Engel depicts how the above
high-volume, mass-advertising approach has come with it a lack of
individualized attention to clients and an over-reliance on nonprofessionals to
screen and evaluate the cases. This over-reliance upon nonprofessionals to
screen and evaluate the cases would be replaced with the above competent
governmental agency. The feasibility of this approach would prevail, although
it would need a testing phase, if you will. American citizens are rather fond
of the trial and error approach, and this government agency would follow suit. I
presume that once a few success stories are shared with the American public,
then the implementation of the agency would take off, per se.
As Engel
has presented and proven, the campaign to reduce
damage awards and to curtail tort actions is misguided and unfair. As lumping
has predominated, and as the American society has fallen victim to the
misinformation and misguided pipeline, perceptions regarding the
hyper-litigious American citizen and holistic American society have prevailed.
Reading Engel’s text has encouraged me to approach public perception regarding
American tort law through a more narrow and restricted pair of frames, one of
which requires the wearer to be skeptical of the myths that of which are passed
down through the grapevine of illusory misinformation. Engel has encouraged
me – and I hope other readers – to grasp the grapevine and attempt to shake
it until the truth falls from it; and if the truth is not what falls from it,
and instead an empty abyss, I shall attempt to ascertain the truth through
conducting my own evidentiary and empirical research regarding why the dog has
been failing to bark in personal injury cases.
No comments:
Post a Comment