Wednesday, April 18, 2018

'Why doesn't that dog bite?'

By Michael A. Cain

“Well, if you don’t like it, then you can lump it!” This phrase became familiar to me during my middle school years while on the playground. It simply meant, “deal with it.” During school hours, you learned how to socialize by getting along with others and fitting in. Any whining, complaining, or crying would render you a social outcast. However, the main reason why you failed to complain about someone who hurt you was that you didn’t want them to tell on you, when eventually you caused them some harm. It was an unwritten rule: complaining was for “sissies.”

In reading, The Myth of the Litigious Society, by David Engel, I considered my thoughts on, “why doesn’t that dog bite?”  I think that American adults are very hesitant to litigate because it is considered confrontational, a circumstance that is dreadful for many, and we know that none of us is infallible since “everyone makes mistakes.” Next, Engel's Embodied Model, as an explanation of how the injured go through the decision-making process toward making a claim or not, is close to how I see the injured person’s thought process. Last, any tort reform must be based on the maintenance of good will in our society, making the victim physically and emotionally whole again, with less emphasis on monetary return.

My initial thoughts about why we tend to avoid litigation is that by nature, litigation is a confrontational act, and that as youth we learn how to socialize by getting along with others and to settle differences among ourselves. After all, we had to learn how to apologize to our peers and to quickly return to being friends by the very next day. In our communities, we got socialized on local playgrounds and playing fields and at our community schools.  As youth, if you settled differences among yourselves, the ill feelings likely lasted one day; however, if you told an adult to address the problem, someone could get into “real” trouble and you would gain animosity, where the ill feelings lasted much longer, maybe forever.  According to Mr. Engel, lumping is “too put up with, resign oneself to accept and  endure” and so one who lumps is “one who absorbs wrong rather than taken taking action against others.” David M. Engel,  The Myth of the Litigious Society 20 (2016). My experience with the term is consistent with the definition provided by Mr. Engel. I would add that some of us interpret the ability for lumping as a virtue that has a long-term benefit for our communities. In our greater American culture, a “traditional” American--the mythical Horatio Alger--was considered a “self-made” man, who rarely complained about adversity and rather persisted. The rugged American did not dwell on the problems brought by others against him; it was full steam ahead with progress. Thus, the propensity for “lumping” is considered a building-block for the American character. It is not surprising that ninety percent of would be complainants do not bother to do so. Id. at 22.  Mr. Engel postulates that the marginalized may be discouraged from stating their rightful claims by the media, fear of stigma, reprisal and various social norms. Id. at 145 Perhaps. Still, I would suggest that it may be in the best interest of community goodwill to seek lumping or alternative remedies short of the law to deal with our injury-physical, emotional or financial. Imagine a community where ninety percent of possible claimants actually filed suits against their neighbors!

In the United States, actual behavior or pulpit hypocrisy notwithstanding, church leaders and advocates have a strong influence on our norms and values as recognized by Mr. Engel when he informs us about Miranda, who came to believe (with encouragement from her pastor) that her claim for money damages was morally wrong, produced nothing but trouble, id. at 157, and eventually that her decision to sue was the antithesis of Christian behavior.  Those familiar with the Bible may know that the Apostle Paul admonished the church at Corinth for their disputes versus each other. “The very fact that you have lawsuits among you means you have already been completely defeated already. Why not rather be wronged? Why not rather be cheated? Instead you yourselves cheat and do wrong, and you do this to your brothers!” Corinthians 6:7 NIV. For some, to file a lawsuit is an act of desperation or certainly something that is chosen only as a last resort.

Prior to reading Engel’s book, I was unaware that the injured person encountered such inner turmoil prior to deciding whether or not to bring a law suit. While I recognized that many people may have the ability to bring a claim, it had not occurred to me that the decision involved such complexity. Engel’s decision-making model, The Embodied Mind, id. at 70.  Their responses vary dramatically from total incapacitation and resignation to determined action. When they do respond, they may test several options at once, backtrack, give up, resume their former activities, pick up on a path they had previously abandoned, strive for a solution, arrive at a state of healing and acceptance and sometimes suffer a relapse.” Id. at 73. As an alternative model of injury perception and response, it clearly demonstrates how uncertain the decision-making process is for would be claimants. Such a model, if it can accurately predict what people do when they are injured, in the context of tort law, should be helpful for attorneys and rehabilitative professionals whose interest in the making the injured person whole again. Certainly, counselors and social workers should consider the Embodied model as a framework where they design their recovery strategies in order to address the needs of their injured clients.

Any reformation of the tort system must be driven by the general good of the community and not simply to compensate the aggrieved through monetary reward. According to Mr. Engel, the goals of tort law “include the compensation of victims for all their losses (not just medical expenses), the deterrence and reduction of injuries, the distribution of injury costs among a broad group of people, and the enforcement of norms of fairness and justice.” Id. at 177. The proliferation of advertisements by personal injury lawyers in newspapers, television commercials and highway billboards with very few, if any, other types of lawyers taking the same measures at publicity, has led to the perception of personal injury attorneys as money-grabbing ambulance chasers.  The personal injury attorney’s clients presently may be victims but later may be defendants.

In order to build a more just compensation system, I would blend the regulatory system with torts akin to the compensation system used in New Zealand.  Engel states: “Regulation’s strong suit is prevention, but its weak suit is compensation. Once an injury occurs, regulatory agencies have only a limited capacity to improve the lives of its victims." Id. at 188. The emphasis would be on making the victim whole again by taking care of their medical needs and loss wages due to the injury. The legislature, our distributive justice system, would regulate the types of injuries that could be claimed and how the victim would be compensated. Only extraordinary physical injury would be remedied through the tort system. The goal would be to reduce the amount of time it takes to make the person whole again and to ensure a public-based system of compensation largely based on no fault and a worker’s compensation-type of system for all tort-related claims. Individuals and businesses would be incentivized for increasing safety through profits gained through tax incentives and certain exemptions. By removing the tort-based profit motive, such an approach could benefit all Americans but would be highly unlikely for implementation since some special interest groups, including trial lawyer’s associations, would be loath to see any state legislature approve of such a scheme.

“Why doesn’t that dog bite?" is a good question to ask in determining why people do not choose to file law suits when they certainly could do so. While I do not know the true motivation of those who choose lumping, I do know one effect: a more trusting, cohesive society.

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