Saturday, May 5, 2018

If we wish to chide those who wish to enforce their rights granted by tort law, then why does it exist?

By Kyle J. Zacharewicz

David M. Engel, in writing The Myth of the Litigious Society, takes the widely accepted notion of the United States proclivity for immediate legal action and adequate recourse and flips it on its head. The common thoughts of the public all too often paints negative images on tort lawsuits constructed from late night personal injury advertisements with 'crooked lawyers’ perpetuating false claims of rights and entitlements for their own profit. This terrible view on the system that exists to maintain social justice and further protect the rights of people has been distorted to such extent for private, corporate interests that lobby and receive funding to make legislative change to the tort system in the financial interests of those big money corporations and insurance brokerages. If we wish to chide those who wish to enforce their rights granted by tort law, then why does it exist?

The answer is awfully simple. The value in having a fluid system of social and moral justice that is open to current conversation and discussion on a case-by-case basis that also avails itself to cross conversation with worldly law and regionalized modern legislative innovation exists in its malleability. We have seen the growing restraints on tort law over the years affecting things in the nature of damages limitations and the tightening of culpability standards necessary to show a wrong (pg. 12). These restraints were supposedly meant to provide adequate relief to the ‘problem’ persistent with tort law, greedy people taking that which they do not have a right to. The apparent reality, as evidenced from many factual bases ranging from economics to psychology to sociology, is that only two percent of all those injured in the United States of America successfully file a lawsuit to attempt to prove damages that, if a legal right is proven, they are entitled to (pg. 23). It is ever important to the societal structure that we implement tort law and allow it to be modified, not from the false lens that corporate and insurance America wish to portray in order to achieve their end goal of limiting liabilities for business reasons, but instead from the true lens of its simple purpose, protecting people from social violations as well as standard setting the social and moral compass of the greater community through its deterrence of supposed wrongs.

The very purpose of tort law is being undermined by a false sense of what it means to be a personal injury plaintiff. The goals of tort law are (1) to compensate the injured party, (2) to deter others from engaging in negligent actions in the future, and (3) to protect the victim's legal rights. Private interests should not be invested in deterring prospective plaintiff’s ability to file suit, but there still remains other, more personal, deterring factors that also undermine the purpose of tort law development and administration. Prospective plaintiffs who have had their rights violated by another person/entity have been objectively gauged to follow a logical process that is so much based upon the steps a ‘rational actor’ would take in evaluating and assessing potential claims (pg. 74). Adverse mental conditions, self-blame, religiously affiliated ‘punishment,’ painkillers, and actual injuries sustained often lead to a lumping of the prospective plaintiff’s claims (pg. 34). All of these obstacles appear before the individual even has a chance to speak with an attorney. And once they have, cases may be disregarded for reasons other than lack of viability on a legal claim. Firms may choose to not take certain cases because it would not be financially worthwhile for the attorney, having a tremendous caseload, or other similar reasons, but the simple fact remains that still only 4% of those injured actually hire attorneys, half of which result in successfully made claims (pg. 23). Simply stated, the dog does not bark for many reasons that are not being considered by congress and judicial enforcement which are not only factually relevant, but also clear and convincing evidence that our tort system that is criticized for availing too much redress for injury actually barely achieves its purpose because it is only solving 2% of the problem (pg. 3).

The solution was aptly proposed by Engel: we need to re-evaluate and see the injured’s post injury situation for what it really is, not that of a rational actor in their position (pg. 60). We need to understand the unique model that exists as they go through their post-injury process, and then we can know why lumping is so prevalent in the realm of personal injury. This established evidence should be informative to policymakers as well as the general public as it is necessary to re-align the tort law system with its actual goals so it may achieve them in the truest and most just sense (pg. 190). I do not think any radical change in law is necessary as the public perception of ‘McDonald’s’ civil cases pervades. We as lawyers often think that we can create a strong tail to control a big dog, but are left with the inherent truth that we will never know which was more impactful on the developments in civil rights, Jackie Robinson playing in the MLB or Brown v. Board of Education (pg. 191).

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