Thursday, May 3, 2018

Jane and the Myth of Litigiousness

By Marcio Soares

On her way to work, driving her pearl-colored sedan, Jane hits heavy traffic. Looking at the digital clock on her dashboard, it seems, at least from her perspective, that everyone decided to leave their homes this particular Monday morning at exactly the same time and flood the roads. “What is going on here,” she must have asked herself. The sun is glaring from the east, cars are barely moving, and she needs to get to work in order to close out a major business deal for her firm. Jane notices an opening in the traffic, but she’s reluctant to act because of the sun’s intense glare. She can see, but barely. Considering her dilemma, she chooses to take advantage of the opportunity anyway. So, she presses firmly on the accelerator, her eyes squinting, and proceeds to drive her car forward. A few seconds later, a blazing red pickup truck, seemingly out of nowhere, hits her car on the passenger side. In this scenario, the accident is minor. Jane is shaken a bit. Her car is slightly damaged but drivable.

The predominant perception in society is that Jane will bring forth legal action against Joe, the driver of the pickup truck. She will bring suit to be made whole. However, this perception does not reflect what actually transpires in American society. Instead of choosing to seek a legal remedy, most injured persons, like Jane, choose to “lump it,” meaning that they choose to absorb the wrong in one capacity or another rather than take legal action against the person who caused the harm. In society, lumping appears to be the norm. “More than 90 percent,” according to David M. Engel, author of The Myth of the Litigious Society: Why We Don’t Sue, “did not make any claim against the injurer or its insurance company but simply absorbed costs themselves, got help from their own insurance, or at most filed a workers’ compensation claim" (Kindle locations 364-366). This statement is profound, because it seems to refute the presumed idea, one previously held by me, that America is a highly litigious society. It appears that Engel has “busted” the myth through his exhaustive research on this topic. In so doing, he seemed to have discovered some of the reasons why most injured persons choose lumping instead of claiming.

One reason for choosing to “lump it” is that people do not behave rationally. Their decisions are impacted both by their sensations and perceptions. According to Engel, trauma and pain disrupt the thought process. When an injured person is in severe pain, their primary focus is on the sensation of pain itself and not necessarily on identifying legal strategies or remedies. If our hypothetical Jane were severely injured in her car accident, for example, she would be preoccupied primarily on reducing overall pain, improving health, and getting back, or at least as near as possible, to pre-accident condition. Another reason for preferring to lump instead of to claim is cultural. Negative stereotypes of injured persons that pervade on television and popular culture discourage injured persons from considering legal options, often times equating a tort claimant to a social parasite. Such negative stereotypes may prevent Jane from filing a legal claim. Acquaintances may deny that she is in fact suffering, instead suspecting her of malingering or exaggerating. Thus, even if the pain or injury is severe enough, injured persons, including Jane, self-select themselves out of the legal equation because of existing and pervasive social and cultural attitudes, then opting instead to become reluctant litigants because of this powerful yet invisible social pressure.

My initial understanding of the American torts system was one of rampant and extensive litigation, where those who are truly injured attempt to make themselves whole but do not always receive justice; and when these injured persons actually receive compensation for their injuries, the amount is usually insufficient due to legal fees and other expenses. However, after reading Engel’s book, my perception of the tort system has changed significantly, especially in regard to the amount of litigation that occurs in the United States. My previously held belief was that there was too much litigation going on in the court system. It never dawned upon me to view the issue through the prism of the injured person. But now, I understand that it is important to consider this variable in the equation, knowing that many injured persons choose not to litigate, opting to lump, because of the disabling effects of injuries, negative perceptions of victims, the “embodied mind,” cultural attitudes, self-blaming, and third-party influence on victims. How can they obtain total justice if they are opting out at the earliest stages of the process? How can Jane obtain justice if she suffers harm, including pain and suffering, diminished quality of life, loss of earnings, and so forth? The answer, to some degree, lies in reforming the current tort system.

The current tort system in the United States is inadequate and needs to change. The new system should incorporate aspects present in the New Zealand system, a no-fault workers’ compensation-like scheme in which persons, like Jane, receive a fixed dollar amount associated with their corresponding injuries. First, this system would be designed to streamline the overall compensation process. Jane or her designated representative would file a claim, and if she is entitled to compensation, she would receive the amount in a reasonable amount of time. This is important because the lengthy legal process in the American tort system has a deterrent effect on injured persons considering filing a “claim.” Second, Jane would know the exact dollar amount because each injury has a monetary value attached to it. For example, if Jane injures her hand to the extent that it loses its function, she would be entitled to $150,000. This is important because she would not have to guess how much she is entitled to. In our current tort system, attorneys give their clients estimates of what they may potentially earn, if they’re successful during litigation process; however, they don’t always triumph in their legal endeavors. Third, the overall claims process in a New Zealand-style scheme would reduce the amount of time Jane would have to wait to receive her compensation. This last point is especially important, particularly when money is needed in the household. Lastly, the scheme would allow Jane to seek legal remedies if her injury was the direct result of malicious harm, enabling her to seek additional compensation and providing a means of punishing the injurer through fines or other means deemed appropriate. It is conceivable that this scheme may work in the United States. However, the initiative would be met with resistance by many uninterested parties, those who have a stake in the current system and stand to lose if the system changes. But ultimately, the current system needs reforming, because injured persons, like Jane, should have access to justice without having to self-select themselves out of the process.

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