Tuesday, May 8, 2018

Engel lacks new angles

By LawStudent58

Engel: Have More Faith in Americans
Instructed to reflect on The Myth of the Litigious Society: Why We Don’t Sue, by David M. Engel, by our 1L Torts II Professor at UMass Law, I have to say, I was not surprised by the author’s initial claim that Americans don’t sue nearly as much as we could or as much as we might be expected to given the "litigiousness” of our society.  In his opening line, Engel reflected, “If most of us were asked why physically injured Americans rarely sue, we would probably think the question itself makes no sense” – well, maybe most, Engel, but certainly not all.  Allowing his assumption, the material he presents follows a decent flow, with the underlying desire likely of reaching readers who do not share his views, and promoting those who do to further engage in discussion on the matter.  Readers are meant to walk away with a knowledge that Americans do not readily ask the question(s) of what more they can sue for – what other injuries, beyond those physically observable, are causes of action for which they can seek relief.  See LegalZoom’s answer to the question, “When Should You Sue?

Introduction to "Lumping" in Tort Law

“We are not who we thought we were.  America isn’t a nation of trigger-happy litigators after all,” Engel reflects as he begins Chapter 3, How Real People Experience Injuries.  I feel compelled to say something along the lines of, “No, Engel, I am not surprised, and I don’t appreciate your presentation.”  However, what Engel did “teach” me (not that my Professor could not, but simply because I am a first-year law student, merely beginning this scholastic endeavor and did not previously know) is the term “lumping” – a term he concluded the majority of torts students may be unfamiliar with.  “'Lumping’ is 'to put up with; resign oneself to; accept and endure,'” as stated in the beginning of Chapter 2.  He goes on to explain that it means “that the victim does not confront the injurer in any significant way to seek redress” (location 323) and that “approximately nine of ten injured Americans choose to lump rather than claim” (location 357).

Admittedly, I did not know what a “tort” was until I began law school.  A tort is a “civil wrong,” our professor stated – and we embarked on an exploration of culpability and tortfeasors with Roscoe Pound and the “Pound Progression,” officially kicking off our understanding of tort law.  With discussions of New Zealand and tort law, we discovered the legal call our nation has to promote what our professors called “Peace and Order” in the idea of making B whole again.  Not only does Engel fail to mention the Pound Progression; one can do a search on his book and find zero (emphasis added) results for the term “peace.” 

Honor is yet another term that escapes Engel in his depiction of the litigious myth.  Engel, I hate to break it to you, but whether you think lumping is good or bad, the history of tort law stems from the concept of “honor.” Americans have honor and respect – more than Engel notes in his short book. And, despite the fact that there may be a vague chance at winning a lawsuit, we don’t enter into litigation simply for the sake of it. We have better things to do with our time than wrap it up in endless courtroom dramas. 

I was grateful when Engel recognized tort plaintiffs as potential “social” parasites: “Americans admire those who are strong and self-sufficient in the face of adversity, and we despise people who whine, complain, and finagle for the easy buck” (location 228).  Thank you, Engel, for giving credit to those who may exercise their ability to “lump.” 

I like to believe in hope for our great nation.  I like to think we are strong enough to respect our differences; otherwise, what are we doing here?  Americans, even in the face of disagreement, can be civil toward one another; Americans can find common ground; and Americans can ultimately reach solutions that are amenable, or at minimum, acceptable to all parties. We are not perfect, nor should we claim to be; but as a whole, we are a great nation with truly remarkable minds, hearts, and grit.

Life, Liberty, and the Pursuit of Happiness

Americans are a busy sort; we are also a prideful bunch.  As children, we are taught that we can be anything we wish to be, that our actions matter, and that when we reach adversity, we should resolve disputes at the lowest (and quickest) levels possible.  Sure, there are those who live in the extreme, who love going to court to fight for any injustice they can dream up (possibly for an excuse not to go to work, possibly seeking some sort of validation of their lives, and possibly for any other reason they manage to concoct); but most of us want to be with our families, living the American Dream, building, growing, and enjoying some semblance of “happiness.”  We desire to embrace everything we think we are promised in the United States Declaration of Independence, everything the phrase “Life, Liberty, and the Pursuit of Happiness” seems to make us feel when we hold it in our hearts and minds.  

Civil Disputes in the United States

Civil disputes in the United States are what they are.  They are messy and they are not always fair; often, they are nonexistent where they should reside.  Prior to reading Engel, I didn’t quite know how many civil disputes were or are presented or make it through the legal system for litigation, and I would require additional research to be conducted should I desire data useful enough to form any hypothesis or conclusion.  I appreciate that Engel presented a fact from the state of Wisconsin, noting that “66 percent of all the civil cases that came through a contingency fee lawyers office were turned down, albeit many based on merit “ (Herbert M. Kritzer’s study, location 2425).  Okay, thanks – where is the rest of the story, and what do you expect your readers to do with this?

Engel did not surprise me in determining that many cases do not make it through to litigation; that, however, is such a foundational understanding of tort law!  If one tries to prove any tort cause of action, one must prove a myriad of elements are met, and counter-argue any potential affirmative defenses.  It is often so much easier to avoid trial than to walk down that path to facing a civil wrong in public, to trying to make B whole when A injured him.  B is busy with competing priorities; a potentially limited budget; experiencing feelings of embarrassment or fear; or any other of a myriad of considerations or excuses B might purport.

Tort Reformation

It was in a one-on-one session with my torts professor that I learned about the history of tort reform.  I wanted to know why we considered Restatements, where they came from, who wrote/writes them, and the necessity of the confusion they seemed to present.  It’s my first year of law school, and I am already a bit jaded as to the currentness of legal rules and how muddied our understanding of said rules are when we can’t even agree to move on the same page of tort reform as a nation.

If I had the time and interest to dedicate to tort reform, I would assemble a team of the best and brightest in the field and we would review all tort law ever created. We would synthesize it at a conceptual level.  Then we would ascertain the best practices for its use at an operational level.  We would further organize the details at the tactical level because the lower-level courts and the attorneys themselves should have clarity as to what is and what is not the law when attempting to interpret and then apply the law.

Engel lacks new angles, and his book was rather like a dinner conversation I would ask to be excused from.  His is arguments did not inspire or encourage action. While Engel’s tone was welcoming, he lacked a motivational push to promote tort causes of action to litigation.  If his message is to inform Americans about the history of tort law and how it should be reexamined, he needs to restructure it and find a way to motivate a cause of action.  He needs to provide the background of tort law and the need for it in our great nation.  He needs to show how we could be a greater people if we had increased clarity in our laws and their applications.  

Engel does not deserve credit for presenting a new idea; rather, we might politely thank him for the reminder of that which we already know – that tort law is constantly evolving, and that it will always need to be reexamined as people, cultures, and ideas evolve.  Thank you, Engel, for reminding us of the existence of evolution.

Additional Resources

What Does Tort Reform Mean?

Pound Progression in U.S. Tort Law

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