By Mary Brigh Lavery
David M. Engel’s The Myth of the Litigious Society: Why We Don't Sue sets out to demonstrate how the widely held conception that Americans are extremely litigious is empirically incorrect. Further, he tries to answer the then pressing question – why do injury victims seldom bring claims against their injurers and almost never take legal action? Engel’s conclusion to try and change the ongoing discussion and debate about tort law and tort reform appears to be somewhat unattainable on its face. However, it is not without merit, and, if taken seriously, could have positive, far-reaching effects for tort law as a whole. Most importantly, Engel uses studies from diverse fields including but not limited to psychology, neurology, and sociology to inform and shape his new approach to understanding why injured victims do not claim. Engel’s analysis proves that answering this question is not black and white, but requires a more in-depth look into the cognitive, social, and cultural context of injury victims as well as the interconnections linking humans to their physical and social environments and other influential people.
In Chapter Five “Theories, Models, Dogs and Fleas,” Engel asserts that a new model is needed to close the gap between theories of injury claims and the evidence of social science. Engel proposes a new framework based on information about human cognition, injuries, and decision-making (Engel 68). As I read Engel’s rejection of the decision tree model and his contention that an alternative model of injury perception and response should replace this old, linear model, the light bulb went off in my head. Of course it has always been clear to me that human thought and action are indeed not simplistic and not universally linear but multidirectional. But I wrongly assumed that current models and theories account for this. Once I realized the flaws associated with the current system, as Engel aptly points out, I understood how imperative alterations are to this body of thought. Human cognition and action take place within dense relational networks as well as the physical, social, and cultural environments, and a model for understanding injury victims’ responses should reflect this (Engel 70). Engel states, “the alternative model of Figure 5.3, therefore, aims to avoid the dualistic view of self and environment and instead to highlight their organic interconnection. In this model, the environment is not external to the self. The two are seamlessly linked and inseparable” (Engel 78).
By then using this new model in the subsequent chapters, Engel sheds significant light on why people decide to lump their injuries rather than claim them. Chapter Six “Causation, Cognition, and Injury” presents an interesting discussion on how the model applies to the concept of causation. As I read this chapter, I began to recognize the subjective nature of causation. Before reading this section, I perceived causation to be straightforward and objective. The “but for” test asks whether “without A’s act, a preponderance of the evidence demonstrates that B would not have suffered harm,” and I believed this to be essentially the extent of causation (Engel 87). Causation could be understood by a layman and have a singular universal definition. But this is far from how people actually discern causation, according to Engel. People instead are relying heavily on their own particular ideas and definitions of causation. “Causation isn’t something we can actually observe or detect; it’s a matter of belief derived from experience” (Engel 87).
Humans create mental templates that are deeply embedded in our cognition and use them in our interpretation of cause and effect. Therefore, if we do not identify a causal relationship, it is probably because the relationship between Event A and Event B does not align with one of the established templates. As a result of this, the subjectivity of the victim can determine whether he or she connects another party to the injury – which is the critical first step toward bringing a claim (Engel 88). If the required causal connection to someone else’s wrongdoing does not materialize, victims are likely to lump their injuries.
Engel explores the notion of causation even further in this chapter by examining how things like morality, cosmology, and self-blame affect how people understand causation. Since we view causation subjectively, philosophical or religious beliefs influence our thought processes. Beyond that, we are swayed by our culture and surrounding environment (which includes other people) and therefore usually think within the confines of widely accepted beliefs. For example, Engel quotes Randolph Bergstrom, who insists “that a worldview favoring lumping predominated in New York City in the late nineteenth century. Predominant ideas about injury causation ‘rested in tradition, especially in self-sufficient individualism and a distaste for the strife that litigation expressed’” (Engel 95). Culture, religion, and environment strongly impact and shape who we are, but I did not realize the influence it had on a concept like causation. Engel stresses, yet again, how these perceptions of causation can dictate whether a victim claims or lumps.
The final chapter of Engel’s book focuses on a possible remedy to the lumping problem. While Engel’s approach is appealing for reasons that will be discussed below, we must also realize that tort reform and debate of this magnitude cannot happen in a vacuum. A new conversation about tort law (in regard to claiming and why it does not happen) in America is unrealistic unless there is a broader societal shift toward viewing injuries themselves, victims, and even the perpetrators in a different light. In other words, Engel’s approach needs to be applied on the macro level first as a cultural strategy before it can be applied to tort law on the micro level as a legal strategy. Changing how we view tort law will not be successful if the existing society remains deeply rooted in baleful ideas such as victim blaming. To enact this type of change demands not only a top-down systemic reform but also pressure from grass-root level advocates. Additionally, Engel’s reference to the mass media is also a way to work towards a cultural shift, but that is if the media were to a project a more victim-friendly message. As many will appropriately point out though, this is neither a very feasible nor a very practical solution particularly due to the current political climate. Even if a widespread societal change were achievable, it would take years before there was any noticeable difference. Since there is no magic wand that is able immediately to whisk this societal and cultural shift into being, it is valuable to look at some of the compelling aspects of Engel’s proposed solution.
Engel first explains why a different approach is critical in addressing the consequences of lumping among injury victims. I believe that if this prefaces the conversation regarding lumping, then opponents to new approaches may be more willing to entertain the idea. When victims lump their injuries, tort law remains dormant and therefore does not achieve its stated goals – compensation, deterrence, redistribution of losses, and enactment of moral justice. So, the debate should rest on how effectively to achieve those goals. Although most people stand firm in their convictions and not are easily persuaded, it is worth beginning the dialogue by establishing an agreeable, realistic, and bipartisan goal. Engel’s observations and findings should be the focal point of the conversation. Studies from diverse disciplines should be emphasized to understand the bigger picture of how people comprehend injuries and respond to them. Once equipped with a more sophisticated understanding of cognition and the social and cultural influences on injury victims, then a new discussion about tort law can take place. But getting to this discussion is only the first step. As we begin to have a more fruitful and informed tort reform conversation, we need to be thinking of improvements to the tort system that will allow making the injured plaintiff whole easier and more accessible.