Before law school I had many preconceived notions about how our justice system worked. Years of media coverage of the law (from high profile cases like O.J. Simpson, Aaron Hernandez, and Casey Anthony, to Hollywood’s Law & Order, Liar Liar, and Judge Judy) had me believing that the United States truly was a place where frivolous lawsuits ran rampant. Every personal injury attorney infomercial left me with a bad taste in my mouth, and looking back on it, I was conditioned by all of these examples of lawyers and lawsuits in the media to feel that way.
This “media campaign” that I had been subjected to for the better part of my twenty four years on Earth was explained in our torts class, as well as in Engel’s book, and to me it is one of the more interesting things I learned about while reading The Myth of the Litigious Society - Why We Don’t Sue. Through our 1L year we have learned about how law and politics often overlap, especially in tort law and policy. On a case by case basis it can be difficult to pick up, but when you step back and look at the bigger picture, it is fascinating how decisions can be semi-predicted, based on where the suit was brought, and when it occurred. This is what made reading about the media war against the progressive trend that tort law was taking very interesting to me.
Tort law was trending towards loss sharing, looking less at who was truly at fault for injuries and more about which party was best capable of compensating the injured party. Although I currently don’t believe our system of compensation is flawless, this is not an ideal solution either. It allows for bad actors to continue their bad behavior, as in many cases, those who were at fault would not bear the burden of making the injured party whole (at least not completely). Big business, conservative politicians and conservative members of the legislature did not like this trend at all. “Tort reform found avid backers among conservative political candidates” (pg. 11). There was big money, politicians, and courts who were all sympathetic and eager to the cause of tort reform. They launched an all out counterattack, through policy, as well as tort reform campaigns. They aimed to change the way Americans thought about injuries, and tort actions (pg. 9-12). The counterattack was successful, so much so that people of my age have grown up thinking that slip and fall accidents at work are usually setups, people who get rear-ended and claim they have neck pain are taking advantage of the system, and that injury lawyers are “ambulance chasers” and should have their morals questioned in any action they take. Engel’s book is aimed at bringing light to the fact that many of those who are injured don’t ever try to recover, to their detriment, as well as detriment to society as a whole. Engel urges us that we need to change our mindset about people who are injured to no fault of their own, how it affects them and further, how the result of these non-suits can lead to negative outcomes for all of us.
As a twenty-four-year-old man who was born and raised in a vacation resort area, every job I have ever had in my life has been manual labor in some form or another. I have seen injuries in the workplace, some minor, but some major ones as well, with serious repercussions. Even after watching someone get injured in a forklift-related incident, my coworkers and I had the immediate reaction of “Wow, I wonder how long he’s going to use this to get out of work.” This knee-jerk reaction is what we need to change as a society, because deterring those who are injured from filing suits, be it from the advice we give them, or the fear of being socially ostracized for filing a claim, does not better our lives in any way, shape or form. Before I read Engel, I had little sympathy for the injured plaintiff, as the second someone was involved in a lawsuit in my eyes lost credibility, and in some ways became less relatable from a human perspective. However, after reading Engel, and particularly chapter three, which starts on page thirty seven, I realized that the changes a person goes through once injured can be life altering not only physically, but emotionally, and economically. Not only do we need to change the way injured people are viewed in our country, but we also need to provide them with guidance, as Engel writes about how injured parties often have trouble thinking clearly and making rational judgments (pg. 42).
Learning about the way people experience injuries made me feel a bit ashamed. Nobody close to me in my life has ever had a serious life changing injury (except for a family friend who lost his left while driving his motorcycle drunk) and I realized that I was deemphasizing the human element of these injury cases I heard about in the news, or read about in school. I had always felt sympathetic to our family friend who had lost his leg, despite the fact that the accident was his fault. I always felt terrible about the long term issues he has dealt with since the injury, and how it has affected his day-to-day existence. This book has opened my eyes to the fact that you don’t have to know someone personally to put yourself in their shoes and empathize with what they are experiencing. Injured people need our help and support, and for tort law to move forward in the right direction, the first thing we need to change is how the plaintiff is viewed in our society. People who suffer injury in our society should not be afraid of trying to recover for those injuries. We are all under the protection of the law, and in tort cases, the law is there to protect us from being wrongfully injured. Victims should not be downplaying their injuries, feel that it is wrong to claim, or fear claiming for social reasons. (chapter eight, starting on pg. 126). If our society is in a state where the solution in place for people who are injured is a solution that they do not want to use because they are scared of it for the reasons set out above, then we desperately need to reevaluate how we are taking care of injured people in our society, because the system is clearly not working.
Reforming the tort law system in the United States is a daunting task, and there is undoubtedly not one right answer. I do believe that the first step to making the tort system better is to stop vilifying the plaintiff. They are the victims in these cases, and should be encouraged to use the law to receive the justice they deserve. Too many cases go unheard because the injured parties are afraid to, or unable to file suit. If I could wave a magic wand, I would first begin a campaign that would humanize the plaintiff in the eyes of the general public. It would focus on making the injury to the plaintiff personal, in an attempt to get the public to not only sympathize with injured parties, but to empathize with them as well. I would then wave my wand to split tort suits up into different tiers. What I mean by this is there would be a step by step progression in a tort lawsuit. The first step would be getting the plaintiff the recovery they need (i.e. money for medical bills, mortgage, insurance payments, living expenses). It would not be unlike New Zealand’s accident compensation system, however there would be a second tier allowing for plaintiffs to seek further compensation based on loss of future earnings, pain and suffering, and any other damages they may seek in order to make themselves whole from the wrong they incurred at the hands of the defending party. Providing almost immediate support for injured victims would allow those who may not have been able to afford a lawsuit, or those who would have had to find other work to support themselves and their medical bills a better chance at receiving justice, as well as deterring the guilty parties from perpetuating the kind of practices that resulted in injury in the first place. Any system in place will have its issues, but I would hope that allowing speedy recovery of the aid necessary for injured parties to live would allow them to make more thoughtful, planned-out decisions on whether or not to file suits, and the best course of action for them to proceed on.