By Tyler Hicks
Engel makes many good points in explaining how the “myth of the litigious society” occurs in the United States and gives possible explanations of why it does occur. The common assumption by outsiders and even the majority of Americans is that the average American sues too often to redress the injury that they have faced. This perception seems to be rooted in and furthered by the media’s portrayal of injuries. The news networks are supposed to put out the most hard-hitting news. When people watch those news segments and see cases such as the McDonald’s hot coffee law suit (pg. 141), they believe this to be the average American perspective. In reality, the McDonald’s plaintiff would be the minority of Americans, according to Engel, as the average American doesn’t sue as much as they should to correct wrongs. There are many explanations offered by Engel as to the reason for a person not seeking compensation and corrective justice for the injury that occurred. The explanations he explores include, but are not limited to, economic, cultural, and societal explanations as to why Americans do not litigate.
The first explanation that Engel explores is economic. If you asked the average American what they perceive as a reason why people don’t litigate, the average response would likely be that the cost doesn’t outweigh the benefit of what litigation would bring. Engel states that this would likely not be the leading cause of why people don’t litigate (pg. 16). Even though the human is flawed in many ways, people view the injurious experience in the view of a rational thinker. Engel argues that the injured person does not necessarily think as a completely rational person. I would agree with this contention, as a person who is recently injured is understandably not in the place to think as a rational person. In hindsight, everything is 20/20, which is reasonably why people would perceive why litigation occurs as a cost/benefit rationale. I believe that in a capitalist society, it is easy to perceive lumping as an obvious result of the perceived benefit being far less lucrative than the efforts it would take to put forward. Once a person has a rational explanation to why something occurs, they likely will not pursue any other theories.
Engel provides what many studies show as the lumping process, with explanations to each step of the process (pg. 31). A study by Richard Abel and Austin Sarat described the process in four steps: unperceived injurious experiences, naming, blaming, and claiming. Engel makes a sound point that although this may be what occurs, it is flawed because it assumes that decision making is linear. Even if people may view themselves as linear thinkers, the average human is flawed, to some extent, in the way they perceive the world. Engel also makes a very important point in that people need to understand the day-to-day thinking process of an injured person to understand how the actual process of lumping works.
Engel discusses how cognitive biases occur because of our non-conscious mind thinking on conscious thought (pg. 61). I agree with this, as society and upbringing shape the way that you think. Daily, the unconscious controls the way that one perceives and eventually acts in a situation. Engel correctly points out that self-blame and morality are major causes of lumping (pg. 91). Whether it is through media, family, or friends, a person with good moral standards would blame themselves for any bad that occurred to them, even if they were partially at fault. If there is something that you could have done in hindsight, then self-blame occurs. Although that person could have sued and would have been likely to win, lumping occurs because that person knew they could have avoided it if they have taken some action. The mind and body work together during that traumatic time, and even though you may perceive yourself as thinking rationally, likely you are not.
Engel explains a very interesting viewpoint on why people do not litigate, due to cultural viewpoints (pg. 131). This is an interesting topic because the United States has many diverse cultures, thus different cultural viewpoints. Engel touched upon the Chinese practice of foot binding and how although some may view this as extremely cruel and harsh for a young girl, Chinese people had no such thought. This thought process happens every day, as one person might self-blame or blame others, depending on how their non-conscious was affected by culture. One’s culture, along with community, shapes the way that people perceive incidents. An interesting point that Engel made was how religion influences the way somebody thinks (pg. 152). When a woman’s child was injured by a dumpster, she originally sued because her husband convinced her, but later was affected by her reverend, who argued the opposite. If one’s religion or family deems something as non-injurious, then that person is more likely to lump. In an injurious occurrence, one may view it as something that will only make them stronger and part of God’s plan, whereas a person in the same situation may blame that person and take legal action. Religion and culture are major causes, in my opinion, as well as Engel’s, as to why people choose to lump.
Although culture is an important factor as to why Americans lump, community is an important force. Engel included an excerpt from a couple whose child was negligently killed in a car crash, in which they decided not to sue because the community disfavored litigation (pg. 137). People inherently want to be liked by others and fit into society, at large. I agree with Engel that people lump because they do not want to be an outcast from society. Societies that favor claiming seem to be in the minority, as the common assumption is that if people continue to sue, it will eventually be endless. In America, there is a sense of “suck it up” and “be tough,” so litigation can be seen as weak and unnecessary.
Although Engel does make a good point that there are a lot of actionable claims that go unclaimed, I don’t agree as to the severity of the issue. Engel discusses injuries that occur through stairs (pg. 106), chairs (pg. 112), and keyboards (pg.115). Many of these items should not be actionable because products naturally go through an improvement process, as the manufacturer can’t make the ultimate best product, without tweaking it along the way. People in society generally trust the manufacturer and understand there is complexity to the product. Unless a situation like the Samsung Galaxy phone exploding and injuring somebody occurs, the average American can deal with product deficiencies. The cultural explanation that Engel gives (pg. 124) would explain why people choose to lump. Although an injury may occur, a jury of your peers would not view an injury from an item such as a keyboard as a just reason to bring litigation.
Prior to reading the Engel book, my assumption to lumping would be a cost/benefit or American culture influencing our decision-making approach. From an outsider’s view, I believed that in most situations people believe that the cost of litigation, both financially and emotionally, would not be worth it, given the payout. If this thought process didn’t occur, I attributed lumping to American culture. American culture dictates for Americans to be tough and to put blame on oneself. The classic saying by the beloved JFK, “ask not what your country can do for you, ask what you can do for your country” characterizes American culture.
Although the beliefs I had may occur, they are not predominant factors, according to Engel’s research. After reading, it is clear that it is very complex as to why Americans lump rather than claim. When somebody is injured, they are in pain, and focused on trying to relieve that pain. Litigation is usually an idea, not on the forefront of an injured person's mind. Engel is correct in telling readers to look at the issue through the lens of an injured person as they go day to day after the accident. It is now rational to understand that the injury process is influenced by the unconscious self.
Engel offered many explanations to lumping that generally changed the way I view the phenomenon. I had a more simplistic view to lumping, whereas the process is much more complex. I took a rational viewpoint to lumping; the process is not linear and usually is jumbled. A typical response to civil litigation is to lump because of self-blame. Self-blame can be attributed to social and cultural pressures that predominate in one’s mind after an accident. Litigation can result in the loss of one’s friends or being an outcast from society. Whereas in the situation where a woman and husband were negligently injured in a bike accident, one culture may attribute it to bad karma or a “malevolent ghost,” although another may blame that negligent driver (pg. 93). The book made me realize that fitting into one’s culture is a crucial factor in lumping. Although cultures vary throughout the United States, it appears lumping is a common occurrence. To fit into society, self-blame occurs so that people can put a cause to the injury and then end the investigation. Many factors are considered throughout the conscious and unconscious self to determine if litigation is the proper means to redress.
As Engel pointed out, culture and society play a significant role in deciding whether to litigate. If I could reform the tort system, in a perfect world, it would resemble something like New Zealand’s. The health care system and tort system would have to work together. The tort system is meant both for compensatory and corrective purposes. In terms of compensatory, American’s could pay a tax which could go towards health care. If somebody got injured, they could go to the hospital and have the injury covered at no cost. If enough money was afforded, future need for treatment could be covered as well. This would allow for a person to be whole again, without having to pay out of their pocket for the expensive treatment. For corrective purposes, punitive damages could still be used for especially egregious situations but would have to be used more often to deter the injury. If taxes were paid toward free health care, the tortious actor would not be paying for the injury out of pocket. To deter the occurrence from happening again, punitive damages would have to be awarded. The person would become whole in terms of compensation for the medical expenses, while also deterring the tortfeasor from further occurrences. As Engel stated, regulation can only go so far (pg. 188). I believe that regulation could, although in its limited capacity, be effective in this system. Regulations would attempt to deter injurious situations as much as they could. In an injurious situation, health care costs would be afforded to that person and to deter further occurrences; that tortfeasor would be discouraged further by punitive damages.
The proposed reform is a very optimistic solution to the litigation problem. I do not believe that it would work in the United States because of the very explanations Engel gives as to why people do not litigate. Even if healthcare costs were afforded, I believe that many people still wouldn’t claim. People might still be expected by their peers to “tough through it” or be seen as wasting people’s tax money if they were to seek treatment. In the end, as Engel describes, society and cultural are severe influences on why Americans do not litigate. It seems as if America was born and bred on self-sufficiency, and no matter the reform, there would need to be a change in the mindsets of both society and culture that lumping is justified. I believe that it is going to be a long road, if it even occurs, for Americans to seek litigation as much as they should. For tort, as a legal action, to serve its purpose, society as a whole would need to change, which is a long-term process.
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