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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