By Nayomi
Vázquez-Berríos
Going
into Prof. Engel’s book I was definitely one of those who thought that the tort
system was saturated with claims and cases of people looking for “justice” and
for ways to make money. Nonetheless,
while I read Prof. Engel’s book I realized the situation is another completely. Around the world our tort system has been of
constant debate, whether that be in a good way or a bad way. Most believe that we find ourselves at the
point where our courts are not doing enough to correct social wrongs and are
also being, maybe, too forgiving to defendants or even overcompensating
plaintiffs. It does not matter if our
system is being glorified or bashed; the one thing that is a constant is that
many believe that Americans sue for anything and everything, and at every
chance they get.
Prof.
Engel’s book does a really good job at explaining why it is that society has
the wrong conception of our tort and court system in general. Most of us were made to believe, and we have
accepted it as true, blindly, that the majority of people that get injured in
society usually go after the entity that wronged them in order to be whole
again. But as Prof. Engel says, nine out
of ten people who suffer injuries do not assert any claims against the person
or entity that wronged them, instead they choose to absorb the losses and avoid
any type of claim and dispute, what Prof. Engel calls lumping. David M. Engel, The
Myth of Litigious Society: Why we Don’s Sue 22-25 (2016). There are many reasons, which Prof. Engel
discusses fully in his book, as to why this happens. Or in his own words, why the dog does not
bark.
One of
the reasons as to why people do not claim against the person or entity that
wronged them that stood out for me is the fact that injuries can be seen as
social constructs and may have been caused by items of our everyday life that
we might not give a second thought to. Injuries
as a social construct means that as a collective society thinks as certain
types of “injuries” as non-injuries that do not merit litigation or any type of
claim. In other words, we naturalize
certain injuries and make them seem trivial when they are in fact a civil
wrong. Like for example injuries
sustained in stairs, chairs, and keyboards, oh my! David M. Engel, The Myth of
Litigious Society: Why we Don’t Sue 105-125 (2016). Back pain and spinal deformities may fall
within the injuries that we have naturalized and do not think of as civil
wrongs. We might consider back pain or
spinal deformities as a result of poor posture or as a result of genetics, but
we usually do not think of back pain as a result of the poor design of the
chairs we have been sitting on since pre-school, all the way to the labor force
after graduation. Never before reading
Prof. Engel’s book had I given much thought to back pain as a consequence to
faulty or even defective chairs. Most of
us have used chairs for everything in life, whether we like it or not. Our normal day to day life requires us to sit
most of the time, for humans are pretty sedentary. Since we were children, the norm was to sit
in class, and after we graduate the norm is to find a job behind a desk. These behaviors have caused chair-related
injuries to be normalized to a point where, like Prof. Engel says, until we get
rid of the chair-sitting cultural norm, we as a society will not be able to
rightly identify these injuries as a civil wrong worthy of correction through
our tort and litigation system.
Like I
said before, going into this book I was very oblivious as to the number of
potential claims that are not brought before the civil dispute resolution
system in the United States. Our tort
system and our whole civil dispute resolution system were built to do something
about wrongs that have a solution and have the potential of righting the wrongs
that go unnoticed by society. I think
that wrongs like the ones caused by chairs, stairs, and other objects in our
immediate environment that we have normalized to the point where we do not
associate any type of injury to them, should have their day in court and
society should be aware that belittling any type of injury only harms society
itself. Like Prof. Engel says when
potential plaintiffs absorb their losses and do not claim, it not only affects
them, but our tort system and litigation system cannot fulfill their principal
purpose of compensation, deterrence, loss distribution, and corrective justice.
Id. at 177-78. Regardless, I think the most important
aspect, which is being lost in translation, is that if claims such as the ones
mentioned above are not brought to the attention of courts then the tort
system cannot alert state agencies and officials of potential wrongs that must
be corrected for the greater good. Id.
After reading Engel’s book, I think that our litigation system should be more
accessible and should encourage people to bring their claims because it is the
only way to make sure in the end society is the true winner behind every
righted wrong.
I
believe that it is our job as future lawyers and present lawyers, at every
level of our judicial system, to let society know that the wrongs being
committed against them have solutions.
If I could reform the United States tort system, I would definitely
start by educating people on what torts are.
Honesty time, personally, I did not know what torts were, and coming
from Puerto Rico, I had no translation for it either. Now I know they are “agravios,” but it took a
while. I think that if people were aware
of what torts were and what was needed to bring their claims to court, they
might not absorb their losses because they would feel like our tort system is
accessible and understands their woes.
The problem with this is that it is not cost effective to educate all of
the United States on torts. Also,
lawyers would be out of a job.
Nonetheless, something must be done to help society understand that
wrongs are not always their fault and we should allow those who do not feel
like they have a voice to denounce those wrongs, be heard. Isn’t life just like school? My questions
might help someone with the same uncertainties.
This is what would happen if every single wrong in America is encouraged
to be righted, others would be encouraged to bring their wrongs to court
because they know that they will have a chance to be heard and with every
effort possible, hopefully be made whole again.
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