Thursday, May 10, 2018

Emotional Torts

By Krista Brown

One thing I did not know and was surprised to learn from Engel’s book was how each of the different reasons people do not submit a claim can overlap.  According to Engel, people “lump” their injury by not only refraining from filing lawsuits, but also "not confronting the injurer in any significant way to seek redress" to instead "rely on whatever resource – financial, psychological, and spiritual – they can muster on their own" (Engel 21). The opposite course of action, taking action or as Engel puts it “claiming,” is not just filing a suit and consulting a lawyer but also seeking some sort of response from the injurer, monetary or otherwise. Engel broke down the different reasons people do not claim into myriad reasons from society’s view of people who file claims to blaming their own carelessness, and ending with the influence of friends and other external societal factors. With nine out of ten injured parties in the U.S. not filing suit for a plethora of reasons, which Engels breaks into specific categories, it is interesting to see how the factors are still present when a person does seek compensation for an injury.

The case of Miranda Compton in chapter 9 on page 148, whose minor child was injured while she was playing on a dumpster, is a prime example of how each of the reasons and theories people choose not to sue overlap. Miranda originally only wanted to have her daughter’s future medical expenses covered. This is claiming at its most basic level, not seeking anything excessive or retaliatory, just a mother taking care of her child, something society deems appropriate and necessary and in line with the values of the area. Beyond this Miranda made her distrust for lawyers known. She like most question their integrity and whether they truly advocate zealously for their clients. However, when the first external factor (her ex/current husband) bore on Miranda, she sought counsel and filed suit at his demand, making it known that she did not originally want to (Engel 150). As it is suggested that the husband had been abusive and controlling, Miranda’s ability to make her own decision was also influenced, another factor which Engel discusses at length, though not directly related to the injury (Engel 172). The spouse may also have been in the category of people Engel describes as having irrational thoughts about the potential of their claim and the possibility of a cash payout.

From here she was further influenced by her new found religion as a whole (another cultural interference as the Bible says though shalt not judge) and the Reverend Fillmore individually, who effectively shamed her out of her claim against both the owner of the property where the girl was hurt and the owner of the dumpster, as it would be considered greedy. Collectively her faith and the reverend made her feel an internal guilt and believe that it was her fault that the child was injured, as she should have been watching her more closely further compiled on the belief that to receive money for her daughter’s injury was morally wrong and would only bring more bad things (Engel 151). This guilt and the idea that the injury was her fault is examined in Engel’s fifth concept, with the understanding that the dangerous situation (an unstable dumpster) is part of the general surrounding, and it is her duty to watch her children to prevent them from injuring themselves. An unexamined factor in Miranda’s case, which she mentions and I have seen in my time spent working for a personal injury attorney, is the regret people feel when the ordeal if finally over, regret that they did not get more, try different tactics, or in Miranda’s case, regret for having started the process at all and preferring instead to have lumped.  

Before reading Engel’s book I had not put much thought into why people choose not to seek relief for potential claims beyond the understanding that many people are skeptical of lawyers, especially those who practice personal injury. Having worked in a firm for several years and seeing the daily goings on and the work that attorneys put in to their clients’ cases the idea of keeping a contingency fee did not seem unreasonable to me. Those outside of the legal profession do not trust attorneys and assume that if they seek legal advice it will lead to costly litigation and inevitably a trial and a drawn out process. Neither of these have been my experience with most cases being settled attorney to attorney or with the use of a mediator. I have personally been more fascinated by the outcomes of litigation. A woman with severe documented injuries resulting from a motor vehicle accident where both negligent drivers were found to be on their phones may receive substantially less than the medical bills she has incurred and will have in the future, while a man hit by a car moving at low speed with no long term injuries beyond an alleged deformed nose and minimal medical expenses will settle for over five figures.

Further from an academic standpoint we have been taught that the main reasons for tort law is to punish the tortfeasor, make the injured party whole, and deter future tortious actions on a personal and societal level. This cold and calculated analysis of tort law removed the human factor that Engel’s use of personal accounts reintroduces. The idea that someone would be considered a ‘social pariah’ for seeking compensation for a harm done to them opens the mind to the emotional state of clients before, during, and after the actual litigation is finished. The idea that bringing a claim can cause more harm to the injured party than it does relief forces me to consider the idea that the civil dispute resolution system in the U.S. is even more flawed than I had first thought. Personally, the history lesson regarding tort law at the beginning of the book held my interest the strongest, creating a time line of the tort system in the U.S. and its multiple shifts while drawing in relevant cultural goings on. Engel's argument that the system is flawed is founded in facts. Though Engel offers existing work-arounds, he argues that a cultural change is necessary to fundamentally address the problem. A "more balanced, humane, nuanced, and respectful framework for understanding injuries, injurers, and injury victims" must replace the unsympathetic view of victims and their lawyers so the goals that tort law purports to address but has failed in practice can be fulfilled (Engel 190). His suggestion that the solution is attainable through policy changes and on the individual level to dispel the distrust and distain that shrouds civil litigation is idealistic but better than suggesting no solution.

Reforming the U.S. tort system should be left to someone much smarter than I. Some may suggest a set compensation for injuries sustained such as a specific denomination for a car accident, malpractice claim, or product liability claim. This is impossible as the injury to the plaintiff could vary from a scratch to the loss of a limb which would leave those with the lessor claim overly compensated and others at a great loss. The use of a common fund to compensate for injuries also is unfeasible for the same reason. If I must make a suggestion I would choose a social campaign to destigmatize those who are injured. If we can first show people that they were not at fault for being hit at a stop sign nor are they greedy or deceitful for wanting to be made whole for the loss they have incurred then perhaps people will use the system. Further, by changing the mindset of those surrounding the injured to one of acceptance and understanding that a wrong was committed and needs to be rectified and that seeking such compensation, monetarily or otherwise does not make someone a bad person then perhaps we can get a system where the person is made whole and the tortfeasor as well as the rest of society is deterred from doing the tortious activity. People however are slow to change and this is unlikely. In a more dramatic overhaul of the system one may create a twofold system starting first with litigation between the injured and the injuring party to seek an adequate compensation agreed upon by both parties and only if this is tried and failed then seeking governmental intervention to aid the injured with access to a social program through whatever means necessary (ex.: rides to appointments, money for food, psychological help) sponsored by the federal or local government not dissimilar to the ideals of Social Security; then the government would be alerted to the injury, and the injured would be made as close to whole as possible. This too is entirely implausible. People would not settle between themselves knowing that if they stall long enough the government will pick up the tab and the government cannot afford the costs associated with helping everyone who is injured by others for an indefinite period of time. Perhaps I am a pessimist.

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