By Nick Booth
According to author David Engel, the entire conversation on tort reform is based on a misconception. In Engel’s book The Myth of the Litigious Society: Why We Don’t Sue, the following question is proposed: why don’t more injured people seek legal recourse? (Engel, location 80). The inquiry leads Engel to one imaginative hypothesis: tort reformers change public opinion to be anti-plaintiff, through public relations campaigns, which causes injured individuals to avoid the tort system (Engel, location 116). For Engel, the problem of the missing plaintiff can be explained in part by social disdain for plaintiffs in the tort system, a finding that would have most people reevaluate how they view the legal system, as well as creating a need for a solution to correct the aforementioned misconception.
Tell a random person on the street that Americans are over-litigious, and they would probably agree with you. However, as Engel found, “approximately nine out of ten injured Americans choose to lump rather than claim” (Engel, location 354). The act of lumping is when a plaintiff with a valid legal claim “. . . absorbs the wrong rather than taking action against another party” (Engel, location 323). Lumping is not limited avoiding a lawsuit, as it can occur when an injured party avoids any potential remedy, maybe insurance or arbitration, in favor of incurring the cost themselves (Engel, location 336). Engel’s argument is that the public has built up feelings of resentment towards opportunistic injury plaintiffs, possibly looking to scam the system, when in reality that plaintiff does not exist. Of course there are individual plaintiffs that take advantage of the tort system through deception, but this phenomenon does not happen frequently enough to consider opportunistic plaintiffs a problem worthy of tort reform. There are two interesting answers for why lumping occurs, personal reactions to actually injuries and real efforts to falsely frame the public’s perception of the tort system.
First, injured people do not act rationally (Engel, location 2522). As Engel points out, “. . . the disabling effects of an injury, especially a traumatic one, reduce the likelihood that victims will demand compensation from the injurer or will seek help from an attorney” (Engel, location 2536-42). Therefore, there are behavioral explanations for why people might not be immediately act in their own self-interest when dealing with an injury caused by another person. Second, there is a negative public view of the plaintiff’s role in the tort system (Engel, location 2542). People are not willing to ostracize themselves from their social groups by becoming a tort plaintiff (Engel, location 2548). However, this negative view is not held by accident, but was instead the formed through public relations campaigns. For example, the common misperception that Sella Liebeck was a frivolous plaintiff, suing McDonald's over a coffee spill, when she was in fact the victim of a horrific incident caused by risky business practices (Engel, location 1802). Thus, not only are individuals themselves unlikely to be mentally and physically capable of pursuing a claim after an injury, plaintiffs are also publicly discouraged from pursuing claims. These are two answers Engel provides for why the myth of the over-litigious American is both wrong and pervasive.
While Engel’s discover is clearly interesting, as it challenges the widely held norm of over-litigious Americans, it leads to one conclusion: tear down the current debate over tort reform. Before reading this book, I also held the incorrect view that Americans are more likely to sue and blame someone else for their injuries. However, being informed that most injured parties don’t sue created a new set of concerns. The main concern I took away from this reading is how powerful the misconception of the tort system is for parties looking to avoid future tort lawsuits. Defendants not only benefit from favorable public opinion, which means more support from potential jurors, but they are also, in reality, not being sued. Therefore, if the current discussion about the tort system, and any potential tort reform, is allowed to continue, then the system will continue to favor defendants, both at trial and by suppressing plaintiffs.
To rectify the problem of the missing plaintiff, Engel proposes an opposing campaign to change the cultural perception to match the reality of how many injured parties actually make claims against the party that injured them (Engel, location 2795). However, any opposing campaign would be going against the established public opinion that individuals are waiting for the first hangnail that they can blame on an opposing party in court. Thus, it would be interesting if there was a way to accelerate this change in public opinion. Moreover, it would be a positive experiment to see more injured parties sue. If that were to happen, then the public could finally decide whether Americans are in fact over litigious or if there are real injury claims that need to be remedied and prevented.
Throughout The Myth of the Litigious Society: Why We Don’t Sue, Engel creates an interesting counter narrative against the view of the over litigious American. For Engel, the problem of the missing plaintiff can be explained by both examining how individuals react to injuries and how groups have sought to create a false narrative about plaintiffs, which is a finding that can help to challenge the false narrative for its readers, and is beneficial to any campaign that would wish to change the public perception of the tort system. If Americans were actually too eager to file injury suits, then the actions of these plaintiffs could lead to positive regulations, industry practices, and remedies for injured people.