Lumping All Wrong

By J. Small

To commit a tort, one must act in a manner that is consistent with misconduct and injures another. Tort law revolves around the responsibility we owe to one another and how parties who are victims to wrongdoings can obtain redress. What I have learned so far is that part of the goal of tort law is to deter misconduct, make victims whole, and punish offenders in order to secure and maintain social order and peace, so that individuals do not seek vindication/justice via vigilante means. After reading, “The Myth of the Litigious Society: Why We Don’t Sue,” I thought, “This is an inaccurate depiction of the United States, because we are only gaining insight from one perspective.” Based on this book and the current climate of the country, I believe the goals of tort law cannot be properly fulfilled.

Professor Engel introduces me to a new term, “lumping.”  “Lumping doesn’t simply refer to not filing a lawsuit – it covers much more than that. It means, at least for the purpose of this book, that the victim does not confront the injurer in any significant way to seek redress.” (Engel 20.)  Instead of confronting the injurer, the victim relies on “whatever resources – financial, psychological, and spiritual – they can muster on their own. Relying on one’s own health and accident insurance or on government benefits are all forms of lumping.” (Engel 21.)

My issue with Engel’s perspective is based on only looking at a specific group of injured victims, the physically injured; therefore he only explores why a certain group of Americans do not sue and fails to include why Americans with other “general claims” do not sue. The definition of lumping is specifically crafted to only include victims who are physically injured, which leaves out an entire group of people -- those who are not physically injured but are nonetheless injured. What about those individuals who fall victim to the will of another or who can claim mental suffering?

I thought about all of the people whom Engel is leaving out of his analysis: the plaintiffs of potential survival actions, wrongful death actions, and victims of police brutality. I thought about the tragedies from Trayvon Martin to Stephon Clark, to the Sandy Hook Elementary School shooting, and more recently the school shooting in Parkland, Florida. A majority of these individual succumb to death; however, what about the survivors and their families: aren’t they injured too?

I can admit that “tort law converts human pain and suffering into money. The monetization of injury is why injury victims value it so highly…” (Engel 12), but that does not encompass all Americans. The latter part of the definition of lumping implies that injured parties want or should want compensation in a monetary form. Again, I believe that is only a partial view, because some people may want social or legal redress over monetary compensation.

Beyond economic and cultural reasons, there is another reason why Americans do not sue – the justice system is discouraging; the officer involved in the death of Philando Castile was acquitted of all charges and was transitioned into a new career; Dylan Roof shot and killed nine people in a church and received nine consecutive life sentences. As such, deterrence only works if the offender is afraid of the consequences. Based on the outcome of these situations, why would one turn to the tort system? What help could the tort system provide?  I cannot see, based on Engel's point of view, how these individuals could be made whole again.

Prior to this reading, I was one of the many who believed in the myth that the United States was litigious. In the United States, we have the right to sue, if we choose to do so. We are raised knowing that it is an option. Whenever something goes wrong for whatever reason, suing would appear to be a proper choice. For example, I have had one major car accident in my life; I was about eighteen years old and my vehicle ended up totaled.  I remember going to school the next day and discussing what happened with my friends.  The reactions ranged from “Oh I bet your parents are super mad” to “Why did you not lay out and call an ambulance … you could have sued and got paid?” That was the mind of a seventeen/eighteen-year old at work.

Without reading this book or any real legal knowledge, how could one possibly come to another conclusion about Americans and our habits?  Based on what appears in the news (the “president” being sued), and what passes as daytime television (there is a plethora of court shows, from "Judge Judy" and "Judge Mathis," to "The People's Court") one person suing another is a part of our daily lives.  I also used to believe that suing a person was simple. Engel has taught me that the civil dispute resolution system is not that simple. The steps to get from perceived injuries to lawsuits is not simple. (Engel 32, Figure 2.2.) Engel does excel at showing that Americans are pushed toward lumping; I personally believe that it is the easiest answer to a problem. (In my car accident, my parents decided to lump and settle with the auto insurance.)

If I were able to wave a magic wand I would not reform the U.S. tort system, but I would change two things.  First, I would want to alter the outlook on litigation. Americans wouldn’t be fearful of going to court because of its costs or because of the negative perception it receives. I would want people to look at the tort system as another option like the options that are available. People would have faith in the system because the outcomes of the courtroom would reflect equality.  The second change would be to fix the speed at which the legislature (both state and federal) creates statutes and how the judiciary creates common law. The laws and statutes would be consistent with what is current. I don’t believe my wand waving ideas are realistic, because this is the United States. The country comprises individuals who are outspoken and have their own ideas on how life should be. In a sense, our freedom is our flaw, but that is part of what makes the U.S.A. the U.S.A.