By Brittany Wescott
From childhood the legal system seemed intriguing, but family members often snooted and huffed at any inclination I had toward the profession. It seemed apparent that there was an inherent perspective that people should not sue; those who did, or those who assisted those who wanted to, contributed negatively to society. Growing up this way, I did not view the legal system as evil, but I did think people overused and often abused the system. One cannot help but wonder why Americans harbor dislike and even hatred for the legal tort system in the United States, especially for individuals who choose to utilize the system to their benefit to pursue individual justice and make oneself whole.
David Engel set out to answer this question in his book entitled The Myth of the Litigious Society: Why We Don’t Sue. Engel explains this phenomenon perfectly when he says that “[t]ort law converts human pain and suffering into money. The monetization of injury is why some injury victims value it so highly but also why it is so easy to vilify. Vilification makes the difference." David M. Engel, The Myth of the Litigious Society: Why We Don’t Sue 12 (U. Chi. Press 2016). He presents the two perceptions of a tort plaintiff: one as a champion of the people and one as a social parasite. The social parasite perspective seems to have dominated the United States because Americans admire those who are strong and self-sufficient; they do not admire those who whine or are fragile. Id. at 13. America was founded on self-sufficiency, so it is no surprise that society admires that characteristic. However, being self-sufficient can and should include the ability to rectify a wrong and sue for injuries that have been inflicted upon oneself or others. We need to find a way to move back to the vision of a torts plaintiff as a champion of the people. Frankly, people should bring more claims because even a true social parasite who tries to profit from the system will advance our understanding of tort law and how to help our society with it.
Engel believes that the failure of tort law defenders is their inability to convince the American public that tortious injuries are rights violations; these violations harm society in general and should be addressed. Id. at 14. On this point, Engel is correct, but to understand why society does not perceive injuries as rights violations, he looks at economic and cultural explanations as well as the real injured person’s experience.
When Engel discusses lumping he means anything that does not include a demand that the injurer pay compensation to the victim. Id. at 21. To understand why victims lump, he discusses the economic explanations, in which he explores the cost-benefit analysis, which appears to fall in favor of lumping rather than claiming because, for most victims, the costs of suing simply outweigh the benefits. This is extremely true for low-income individuals, whom Engel acknowledges are most injured persons. Victims in the lower class, which seems to be many of us these days, simply do not have the financial resources to pursue a claim even if we wanted to. Also, most of us are not educated enough to know that it is our right to pursue non-frivolous claims, and if we do, we simply do not know where to start.
Under the cultural explanations, Engel brings home the point that individuals rely on their communities. Communities are made up of those we surround ourselves with such as family, friends, etc. When our community perceives something as bad or harmful, so do we. So, if an injured individual has no clue where to start and consults their friends and family it is likely their community will talk them out of suing because they do not want the injured to be treated as a parasite or to be cast out for pursuing a frivolous suit that will lead to social isolation. However, Engel makes clear that social isolation exists as soon as the individual becomes injured because injury makes people uncomfortable. We do not want to hear about other’s problems; we have some of our own. This ideology stems from our self-sufficient society itself. It seems that we are in a perpetual, nauseating circle we cannot break.
As a self-sufficient society, we think injury should be handled by victims acting in comparison to loss spreading. However, Engel spends a lot of time discussing how real victims respond to the experience of being injured. There is an existential change when someone is injured, and they “may feel separated from their bodies (disembodied) or overwhelmed by physical sensation (especially pain)." Id. at 41. A real victim struggles to think clearly and act decisively; they often experience self-blame because injury makes people uncomfortable and is often hard to explain to others. A victim’s view of causation determines how an individual will proceed with an injury, which often leads to lumping. Id. at 89. The whole concept of self-blame being the leading factor in why people don’t pursue claims makes sense. We emphasize self-sufficiency, but what is more self-sufficient than avoiding harm? If this is true, an assault victim will blame themselves for various reasons because it was their fault they lost control of the situation. What they did or did not do leading up to the injury weighs solely on their shoulders. This concept of self-blame is a way to maintain the control that the victim thinks they have lost. However, self-blame arises during the process when a victim attempts to understand what has happened to them, or if an injury has occurred at all.
While I believe injuries without remedies are bad for society and we need to move away from this self-blame perspective, I do disagree with Engel that to do this we need to understand that mostly anything can be an injury. He claims our naturalization of this broad range of injuries leads to why claims are never brought—id. at 106—specifically speaking of stairs, chairs, and keyboards. The overarching point he makes is that anything can be an injury if society deems it so. However, in the United States even things we perceive as injuries are not turned into claims. I think Engel’s strongest argument is about addressing why we blame victims for not avoiding injury. While the argument is sound that stairs, chairs, and keyboards cause injury especially when considered in a long-term perspective, the American society does not believe these are injuries, which is maybe why Engel argues they do not know they are injured or are injured without realizing, but I believe those are not the injuries we are discussing when it comes to tort law. We cannot understand why plaintiffs do not sue when we look at such a broad definition of injury; obviously it would be absurd to sue for every little thing. Tort reform should address why society blames the victim for not avoiding the injury. We cannot address this matter if wealth, power, and political ideology continue to shape our perspective on claiming in a manner that makes us believe we sue too much.
The media often shows highly litigious cases, which is a way to micromanage society into viewing lawsuits as messy and involving bad people who exploit a system for their own benefit. This contributes to the belief that lawyers are bad and money hungry because they only defend bad people. Frankly, we are too influential. We blame the victim because we think everything is avoidable because we are all “self-sufficient,” so those who sue are taking advantage of a system and not taking responsibility for their actions. But suing for personal injury is almost never about not taking responsibility, it is about the unfortunate circumstance someone is put in because of an accident or someone else’s negligence. Engel acknowledges “contrary to popular belief, the vast majority of injury victims rely only on their own resources, on friends and family, on government welfare programs, or on private insurance to cover, at most, a portion of their medical expenses—but not pain and suffering, the diminished quality of their life, the loss of future earnings, or the burdens imposed on caretakers.” Id. at 169-170. Essentially, society has a different definition for claiming than Engel, for most claiming is relying on programs or insurance to cover a fraction of the cost of an injury and it seems Engel would like to know why those “non-claims” are not pushed farther to pursue justice in a court room and to cover all aspects of the injury including pain and suffering, etc.
Ultimately, Engel assisted with the understanding that our self-sufficient society is really a self-blaming society. With this understanding there is only one true way to fix the tort system, I think we need to start by educating our next generation of the positive aspects of claiming over lumping. Litigation is not a bad thing; it is a tool our society wants and needs us to use appropriately because we have rights that can only be enforced by bringing non-frivolous suits. As students, we sit in a history classroom and drift through our education system, but one thing is consistently taught to us: America is strong, self-sufficient, and a community that respects all persons. So, why does this message not transmit through to our torts system. When someone is injured there needs to be a sufficient remedy. Those people that choose to litigate should not feel ashamed for pursuing their rights, especially because the only way for society to compensate and deter for wrongs is to create a basis, which means people must use the system. The feasibility of changing a society’s cultural perspective is a difficult task, but the only way victims will start pursuing their justice is if we can steer this self-serving, self-blaming, and micromanaging ideology toward the understanding that tortious acts are wrongs, and victims (whether they can avoid an injury to some extent or not) should not bear the full cost of someone else’s ignorance and bad behavior.