Reflections on 'The Myth of the Litigious Society'

By Johnny Ross III

Professor Engel’s The Myth of the Litigious Society posits an interesting notion that most Americans do not seek compensation for injuries inflicted on them through the legal system, despite the conventional wisdom, which says Americans love to sue. However, Professor Engel pushes beyond that and shows our existing analytical frame work, including models such as the Decision Tree Model and Dispute Pyramid Model, is completely inadequate to address the real issue of why Americans are not suing. Therefore, Professor Engel proposes a new analytical frame work to engage the problem head on. I found certain sections in the book caused reflection, challenged conceptions of the United States tort system, and provoked imagination on how would a better tort system operate.

Upon reflection, I achieved a new understanding of causation and the environment from combining Professor Engel’s commentary on pages 103, 104, and 106.  On page 103, Professor Engel said, “The existence or absence of causation is notoriously difficult to determine…causation is more a habit of mind than a phenomenon of nature.” On the same page, Professor Engel clarified by saying, “We view causation through a subjective lien [and] factors may obscure causal connections that would otherwise be apparent.”  On page 104, Professor Engel noted, “Societal views of causation…shape the subjectivity of injury victims.”  On page 106, Professor Engel explained, “The nature of the physical environment reinforces the perceptions that injury was natural and not the product of wrongdoing [and] this process of naturalizing injury can explain why a great many claims are never brought.” The information provided by Professor Engel was completely new to me. When viewed from the injured-plaintiff prospective, I learned that causation is subjective in nature. Additionally, the potential plaintiff’s subjectivity cognitive understanding of the events is shaped by societal views on the physical environment in which the injury occurred. Thus, if the object in the environment, that caused the injury, is perceived subjectively by the potential plaintiff as harmless or inherently risky based on societal notions, then the potential plaintiff will not think the object caused the injury, so the potential plaintiff never files a claim against the people responsible for the object’s nature.  

Furthermore, understanding causation is critically important because causation is a central element of all torts, even if the element of causation is not expressed in the test for a particular tort. The tort system compensates the plaintiff for injury that can be proven as approximately caused by the alleged defendant. If causation fails, then the tort is not proven and no compensation can be compelled by the court on the alleged defendant. Before reading The Myth of the Litigious Society, my concept of causation and societal views on the physical environment were unconnected. Also, I viewed causation as objective not subjective. My understanding of causation was largely influenced by my first year of law school in Torts I and Torts II.  As a law student, I have examined the issue of causation.  From a legal prospective, causation breaks down into two main components. The first is causation as a matter of law. The second is factual causation. Causation as a matter law is centered on the foreseeability of the natural chain of events leading up to injury.  Also, I thought causation was objective in nature based on the examination of the natural chain of events. After reading the above-quoted sections in paragraph one, my conception of the civil dispute resolution system in the United States changed. Now, I know the natural chain of events is the physical environment Professor Engel talked about in his book. Moreover, I realized I was viewing the issue of causation from an extrinsic prospective.  As a law student, I am asked to play the role of judge examining facts for proof of causation not as the plaintiff, but as a third-party wholly removed from the facts.  Thus, based on how I was examining the facts, I never considered the plaintiff ‘s perspective of the events in their environment leading up to the injury because I never placed myself in the plaintiff’s perspective. Understanding the potential plaintiff’s perspective is critically important in understanding why potential plaintiffs do not sue.  It is the furtherance of that understanding which is embodied in Professor Engel’s Alterative Model of Injury Perception and Response (the Model) on page 70.  Although not expressed in writing, the Model shows how the potential plaintiff’s subjective understanding of causation must be influenced by the environment, given that the plaintiff’s mind is submersed in that environment daily, because the Model depicts the Embodied Mind of the potential plaintiff inside the Physical, Social, Cultural, and Environment.  On pages 106 to 111, Professor Engel provides an interesting example of Mrs. Montesinos, and Professor Engel’s Model can be used to explain why the court ruled against her. Mrs. Montesinos was a ninety-one-year-old lady. She fell and suffered severe injuries while trying to descend independently down the stairs of St. Patrick’s Cathedral in Manhattan. Although Mrs. Montesinos's cause of action or reason for suing is not stated by Professor Engel, a reasonable inference suggests negligence, based on the facts. The tort of negligence requires duty, breach, proximate causation, and injury in order for compensation to be compelled by the courts.  On page 111, Professor Engel notes the four reasons why the court concluded St. Patrick’s Cathedral was not liable to Mrs. Montesinos. Based on the following two reasons, I find the court stopped the negligence cause of action on causation as a matter of law. The court said the danger of the stair was open and obvious, and St. Patrick’s Cathedral placed signs, which signaled to nearby handicap ramp. Using the Model, it is not foreseeable that an elderly woman, whose “Embodied Mind” is submerged and interacts with an environment that has a known dangerous object, the stairs, and signs pointing to a safer route, would fall down the stairs.  Although the primary purpose of the Model is to show why Americans are not suing, the second purpose, as illustrated by the Mrs. Montesinos example, is to “[s]hed light on the role law does and does not play in addressing the problem of injury in our society.”

Moreover, using what I learned from Professor Engel on why Americans are not suing, I would reform the tort system, passing the National Tort Damages Reform Act. The purpose of National Tort Damages Reform Act is to engage Americans to use the existing tort system to bring claims against defendants by allowing the jury to place whatever dollar value on damages necessary to place the plaintiff or plaintiffs in the position they were in before the injury occurred.  Also, the National Tort Damages Reform Act would allow a punitive damages exception to normal rule that requires ill will or malice on the part of the defendant.  The exception would allow punitive damages if the defendant had litigated and lost three or more lawsuits which involving (1) the same cause of action, (2) similar circumstances, and (3) cases arising in the same jurisdiction as the plaintiff. A lawsuit is considered over after a final binding judgments has been issued. Each state and federal circuit is considered as a separate jurisdiction. Cases filed in the Supreme Court of the United States will count according to the state or federal circuit the case was previously appealed from below. The feasibility of the National Tort Damages Reform Act is limited because of two reasons. One, tort reformers would oppose the statute because it repeals the limitations on damage awards that tort reformers have passed. Two, courts are left to interpret how similar circumstances are to the current claim, so implementation of the statue could be difficult.  Courts, which feel the jury might award damages too high, could use element two to stop the punitive damage claim.

In conclusion, before reading, my concept of causation was purely objective in nature, and societal views on the physical environment were not connected to causation. After reading, I learned causation is subjective in nature when viewed from the plaintiff’s perspective, and the plaintiff’s subjective understanding of the events leading up to the injury is shaped by societal views on the physical environment, which led me to wonder how a better civil dispute resolution system would operate in the United States. From this premise, I created the National Tort Damages Reform Act. For the purpose of encouraging potential plaintiffs to bring claim against defendants, the National Tort Damages Reform Act would impose damage awards only subject to the jury’s decision and a punitive damages exception when a claim falls within the defined test.