Tuesday, April 17, 2018

Reflective Essay

By Talia Johnson
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.

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