Wednesday, May 9, 2018

A System Worth Saving

By Elizabeth Doe

I was skeptical when I began reading this book. Like many it seems, I bought into this whole rhetoric that we are overly litigious in America and we sue over everything. Having been a philosophy major I am very critical when I read or listen to an argument that doesn’t comport with certain things I believe to be true. That being said, I quickly began to respect Engel for his ability to recognize and even come right out and say that we need to stop looking for theories that support what we already believe to be true and look at the evidence that is in front of us, to start asking the right questions. I feel a bit like I was manipulated by this campaign Engel discusses in his book, wherein tort reformers spread propaganda about overly and unnecessarily litigious, greedy, lazy plaintiffs who want to make a quick buck.

In my undergraduate studies, I learned about the Stella Liebeck case which Engel addresses, and I realized she had a really valid claim, and I came to feel really badly about having bought into the lines the news fed us all about her milking the situation and it being her own fault for having a cup of hot coffee between her legs. But even after learning the truth about Ms. Liebeck’s case against McDonald’s, I hadn’t expanded my thinking to the idea that maybe she wasn’t the only one who had a valid claim and was wrongly vilified by the media – that is until now.

I like that Engel backed up his propositions with studies and numbers and examples. It made him more credible, and if you’re going to undo years of rhetoric we’ve all been fed, credibility is what you need – proof that you’re not just spreading more rhetoric.

In all honesty, I felt vulnerable reading this book. It was devastating to learn that something I so readily believed and whole-heartedly accepted was a deceptive plot by tort reformers to convince us as a society not to take plaintiffs in personal injury cases seriously – to discredit them as a default setting. I thought to myself “how many other claims have I heard on the news and wrote off as another scammer, milking an injury to make a quick buck when someone may have really been suffering?”

It was fascinating to learn all the many ways in which we are steered from litigate to lump. From the cultural views of our society, to the input from friends and family, the people we most often turn to for comfort when tragedy strikes, to religions that promise the only comfort or compensation we need is some elusive higher power.

It was furthermore shocking to me to read a book by a lawyer and torts professor where he doesn’t suggest that more litigation is the answer. This to me, made his position even more credible. He was in no way suggesting that more litigation was the answer, like the propaganda would have you believe a personal injury attorney would do. He directly admits that even those small percentage of people who do end up consulting an attorney with their potential claim are often dissuaded from claiming, by that attorney and told to lump their loss, and this is not just the case when their claim is lacking in merit, but also true where they just won’t get enough for it to be worth pursuing. This book didn’t solve the problems of this system, but it certainly gave me some serious food for thought.

The hardest question posed in this assignment is what do we do to fix the problem. Honestly, I have no idea. There are so many inherent problems in the system which are causing it to fail to do what it was designed to do. One issue that Engel didn’t really address, but one that I see as a real problem, is that most often when a potential plaintiff is able to get from naming to blaming, the person or entity to blame, doesn’t have deep enough pockets to be worth suing. For example, in domestic violence or rape cases, there may be criminal charges resulting from the incident/injury, but it almost always stops there if it even goes that far, because the perpetrator doesn’t have deep enough pockets to be worth suing, so they get away with it. The plaintiff remains un-whole, uncompensated, broken, meanwhile the potential defendant may go to jail or get probation or nothing at all. The claim falls on the victim’s health insurance and often the victim themselves. I don’t know how to solve this, but it needs to be solved. Something tells me if criminals were routinely subjected to both criminal charges and civil actions they’d feel a little less entitled to act the way they do.

Having personally been a victim of assault, Engel’s book really jogged my memory when he discussed the topic of where a victim’s state of mind is at when they have just experienced and injury or traumatic experience. Nine times out of 10 you’re not thinking clearly, you bounce back and forth between being angry and upset at what has happened to you, to in too much pain to be any kind of rational, to wanting to move on, not think about it, not talk about it. You just want it to be over. The thought of having to relive it all over again and again is often enough to deter victims from pressing criminal charges or cooperating with the D.A. if the state decides to do it anyway. So why on earth would you want to go through that whole process twice for a criminal and then a civil trial? Just. Make. It. Stop. That’s all you want in that moment, as a victim.

Some small suggestions of maybe things that could work: Maybe if there was a way to do the criminal and civil trials in one swoop, so the victim isn’t re-traumatized twice. Maybe an agency like the D.A.’s office, but one that handles civil claims for victims. I know for me one of the main deterrents in suing for damages was that for the criminal charges the state handled it. If I wanted to sue, I’d have to represent myself or pay an attorney. But I can’t think of anything that gets us past the issue of shallow pockets. Most criminals aren’t swimming in dough, so putting a victim through a civil trial to sue someone who will likely never be able to pay the judgment, doesn’t feel like a great plan, but I am not sure we can overcome this.

Admittedly, the tort system needs work – a lot of it, but if nothing else reading this book taught me that it’s a system worth saving, because it’s a system for which there is a legitimate need.

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