Sunday, May 6, 2018

Let Go and Let God: The Interference of Religion in Lumping Tort Claims

There are a variety of factors that may affect a tort victim's ability and decision to pursue compensation for their injuries. Prior to reading Engel, religion was certainly not a factor I had considered. Although I was not aligned with the belief that the American tort system is a litigious system gone wild, I was also not under the impression that it was as underutilized as Engel purports. My conception of issues within the torts system was of a more limited and moderate view, somewhere along the lines of the preliminary steps of litigation. I predominately focused on the limited access to the law and legal services, based on geographic and socioeconomic boundaries, as the primary hurdle for victims. This may largely be due to the fact that in my home state of West Virginia, this is what I have seen firsthand. As I see now, this focus only becomes problematic if a victim actually desires to pursue compensation in the first place. After reading Engel, I started to analyze the influences that may cause a victim to decide not to even take the preliminary steps in pursuing a claim. Of the numerous causes that Engel discusses, I found the influence of religion to be the most compelling.

In The Myth of the Litigious Society, Engel concludes with eight reasons why victims choose to lump their claim instead of pursuing compensation. Of those eight reasons, I believe that four of them are particularly relevant to religion.

First, the “disabling effects of an injury” may often lead to a “sense of existential change and identity confusion, an inability to think clearly and act decisively while in pain, a sense of social isolation, a failure of language, and self-blame” (172). Consider the story of Lily’s mother, Miranda, discussed by Engel throughout the book. She initially filed a claim due to the persuasion of her ex-husband, but not long after the accident she had a religious transformation that changed her perception again. Now a born-again Christian, Miranda took primary responsibility for Lily’s accident, failing to hold the automobile dealership responsible (151). In this way, Miranda’s religion wholly encouraged her to take responsibility for the fault of another actor and engage in self-blame that resulted in the desire to lump rather than claim. A victim’s interaction with others can potentially change their autobiographical narrative as well as their sense of self (156). Through interaction with her reverend, Miranda came to believe that the law and legal rights were “not only unimportant, but they were barriers to her salvation” (156).

Second, society as a whole tends to “hold a negative view of claiming by injury victims.” (172). In attempting to pursue compensation, a victim “runs the risk that they will associate themselves with powerful negative stereotypes” and face “disapproval or even ridicule within their social networks” (173). Consider Miranda’s story again, as her reverend influenced her to understand the “Christian response to an injury,” not a selfish claim for money damages, but setting things right with God (152). Religious communities are small, tight knit groups and after seeking refuge in religion following Lily’s accident, it is very likely that Miranda would not be willing to claim at the risk of being exiled from her Christian peers. Additionally, Engel notes that jury expert David Wenner advises plaintiff’s attorneys to avoid empaneling jurors who have strong religious beliefs due to their tendency to believe that an injury is “God’s will or part of some divine preordained plan” which renders a victim’s claim moot (96). I found this interesting to visualize the way that religion could affect a plaintiff’s claim from outside of their own reality, even if they chose to file a claim.

Third, what may or may not constitute an injury is a “cultural construct” and even painful events can be considered “beneficial and not harmful” (173). If a victim believes that there is no injury, then they will not believe that they have a claim (174). Consider Engel’s discussion of male circumcision in the United States – grounded in religious belief and medical science, but increasingly controversial (131). Engel asks the question, “if circumcision really is painful, then should it be viewed as the deliberate infliction of an injury on a subject incapable of consenting – or resisting?” (132). He then quotes a mohel’s interview response to this question, where he stated that “pain is a part of life as a human being [that] we could not survive without. . . [thus] the question to be asked is not is there any pain, but is the pain tolerable?” (133). However, if you asked a human rights activist Engel’s question, the resulting response is likely to be very different. The same physical event is recognized as a religious mandate by one person, and as a cruel mutilation by another. Each of these views have been culturally constructed, and it is clear that the devout worshipper would not believe there was an injury, but the human rights activist would clearly believe that there was.

Fourth, the idea of causation is affected by societal, cultural, and religious norms which may lead to a victim’s inability to recognize the cause of their injuries and attribute responsibility to another culpable person in order to pursue a claim (174-75). Not only victims, but all humans collectively construct their understanding of reality (156). Engel notes that it is an unfortunate tendency, but victims tend to engage in self-blame even when it is apparent that someone else is responsible, and that “society supports this perverse tendency to blame the victim” (47). In religion, the response to pain is deeply rooted in punishment and self-blame for misdeeds and shortcomings (48). Engel quotes research from Richard Schulz and Susan Decker, who found that of the people they interviewed, “43% blamed themselves to some extent for causing their injury,” but “56% believed that they could not have done anything to avoid it” (48). 

In my own life experiences, I have found that it is not uncommon for a person undergoing trial and tribulation to seek solace in religion, regardless of whether they were actively religious prior to the events causing them suffering. I myself grew up in a traditional Catholic household, filled with commandments, confession and what some may call ‘catholic guilt.’ Growing up in a Catholic elementary school, I cannot even begin to count the number of times I was told “Don’t whine about it, pray about it.” Prior to reading Engel, I would have never attributed religion as a cause of lumping tort claims.

However, after reading Engel I can see from a very personal viewpoint that this could be a very prevalent issue. The more religious the person and the more ‘Jesus-take-the-wheel attitude’ they have, the less likely it seems that a victim would turn to the tort system as a vehicle for recovery. The deeper that I delved into this material, the more that the phrase ‘Let go and let God’ burned into my mind. I could visualize the entire process from the moment of injury, to the decision to lump a claim, and even years down the line of pain and suffering –  highlighting issues of causation, morality, self-blame, and punishment that could all have grounds in religion. I began to question how many people I have known with compensable injuries that decided to ‘let go and let God’ instead of ‘letting litigation’ aid them in their pain and suffering.

When approaching the idea of tort reform, there was a particular idea articulated in Engel that immediately came to mind: contributory negligence. Under the contributory negligence doctrine, the torts system allows for a plaintiff to recover even if they contributed to their own injuries. Without getting into jurisdictional specifics, a plaintiff’s potential award is reduced by their percentage of contribution to their own injury, leaving them to recover whatever percentage remains that is attributable to the defendant(s). However, Engel noted that even the very real existence of this doctrine has not affected the “almost-universal assumption [] that when the victim does something wrong, she loses her right to demand that the injurer take any responsibility at all” (47).

Thus, my magic wand reform is grounded in a very tangible idea: implement a societal awareness of the existence of and logistics behind the contributory negligence doctrine in order to shift cultural norms of self-blame to, at minimum, a sense of fault and causation awareness. The goal is simple, educate society as a whole about the basics of the doctrine in the hopes that this knowledge will cause a societal awakening of sorts that chips away at all of the tendencies that influence victim’s to lump claims, not just religion. I realize that in the grand scheme of things, this is a rather small societal reform, as opposed to a broad systematic reform. However, my belief is consistent with that of Engel, being that we cannot truly have one without the other.

As far as feasibility goes, implementing a widespread societal change of any kind is difficult to execute, but also difficult to predict. A deciding factor on the effectiveness of my reform idea would absolutely be mass media. As Engel discusses, mass media in the United States has a tendency to emphasize anti-claiming through the idea of “individual responsibility” rather than ideals of risk reduction, corporate responsibility, and joint and several liability (140). The early tort reform campaign was “successful in shaping public opinion about injuries and claiming” resulting in a cultural shift towards a highly critical and politically conservative norm (140). This success is contrary to the content of my argument, but it serves as evidence that what I am arguing is plausible – mass societal tort reform has happened once, and there is no reason that it cannot happen again, especially given the contagion of social media.

It is worth noting that a cultural shift in thinking about tort claims of the nature I have discussed does pose to solve all of the issues in lumping claims. Taking into account some common concerns of the judicial system, regardless of my personal belief concerning their accuracy, I do not contend that a cultural shift to a contributory negligence mindset will result in fewer claims, but I also do not contend that it will result in a higher volume of frivolous claims. The specific idea here is that there are real victims, with real injuries, who are lumping their claims and suffering in silence. If they have a valid claim to bring, then they should by all means be given the opportunity to make the decision to let litigation ease their suffering.

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