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.
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