By Caroline S. Constance
Professor David M. Engel thoroughly discusses in his book, The Myth of the Litigious Society: Why We Don’t Sue, how the United States is not as litigious as most people across the globe perceive it to be. Human beings are impressionable by nature. Just as some parents describe their children as “sponges” who absorb the mannerisms and language of their environment, many humans inadvertently do the same throughout adulthood. People tend to behave and engage in choices that are normal within their society. As Engel discusses, society, culture, religion, and other people in one’s life all play a factor into influencing one’s choices and decisions.
Professor Engel explains that the United States engages in “lumping” rather than actually claiming. Engel states that “a disputant with a valid legal claim who engages in lumping is one who absorbs the wrong rather than taking action against another party” (p. 21). The book explores and discusses different factors and explanations as to why Americans choose to “lump” rather than claim when injured. The point I agree with most as to why people lump rather than claim is the fact that society and one’s environment influence the person’s actions and choices. A person’s self in their environment, religion as a form of causation, social and cultural environment, and the influence of others all contribute the choice one makes.
One’s self and the environment interchangeably affect one another. Engel mentions, “Humans are quite literally the creatures of their environment, which leaves its traces in their minds and on their bodies. At the same time, human perception and behavior constantly shape the social environment and create the forms and practices that define it” (p. 77). How are we supposed to have people live and function in a way where they are not influenced by their everyday environment and in reverse, not have their actions and behaviors contribute to their environment and influence others? I used to believe that everyone has free will and chooses to do whatever they please. I assumed most people when injured would try to claim and attempt to get whatever bit of remedy they can possibly get. Now, however, I realize that depending on the type of environment one lives in, that may not be so. If a person lives in an environment where others tend to swiftly claim when injured, then if they become injured, they may do the same. However, if one sees others lump instead of claiming, they may choose to lump because that it what they see others doing. What the majority of people within that environment are doing is what another person will naturally follow to do. Seeing a certain choice be common among the environment you interact in will lead one to choose to do the same. Just as the self and the environment affect one’s choice to lump, religion can be another causation factor.
Religious beliefs can play a role in an individual’s decision-making to lump rather than claim. Engel explained that “[s]ome writers . . . . [a]rgue that Americans’ religious faith not only does but should lead injury victims to view causation as a barrier to claiming” (p. 96). This argument can be demonstrated using Christianity as an example, where a Christian may interpret being injured as an intentional part of God’s plan for them and consequently, lumping rather than claiming. Before reading Engel’s take on this theory, I assumed deeply-religious abiders would view being harmed or injured as God’s work and that they may learn the purpose later down the road. I never realized just how much more common it may be for individuals who are more tolerant than devout, such as myself. While never having been seriously injured by another, I tend to have the mindset that “things happen for a reason.” Hypothetically, even I may be injured by another and choose to lump after being injured by simply justifying the occurrence as part of “God’s plan” and it “happening for a reason.” I now realize that many people may believe that a wrong being done to them was a force of religion despite whatever faith they follow and that may in fact lead them to lump. A person who may not necessarily be religious may even lump by believing that they somehow deserved the injury. A form of guilt can be the driving-force behind this mindset. A person who feels guilty for something unrelated from the incident may perceive the injury as “karma” for something regardless of them being of Hindu-belief or even a “what goes around comes around” mindset. Religious causation is a contributing factor to lumping in our civil dispute resolution system, but the social and cultural environment contribute, as well.
One’s social and cultural environment can sway an individual into deciding to lump. From my own personal experience with friends and family it almost always seems to be a better choice to lump than to claim when weighing your pros and cons. As Engel states, “Socially marginalized or disempowered people who fear personal consequences may feel they have no choice but to suffer an injustice and give up any thought of claiming” (p. 143). This was one thing I always knew and understood before reading Engel’s book. In the book, Engel, as an example, discusses a person who gets injured in the workplace may choose to lump in fear of jeopardizing their job or even future job opportunities. It makes sense for a person to have this type of fear because regardless of what the incident was, a place of employment is operated by other human beings as well. Other human beings may interpret an employee bringing a claim as a form of betrayal and hold that against the person in the workplace even if that person does not lose their job. Consequences such as these is why a person may feel like lumping will ultimately result in their favor. I agree with Engel on this point especially in the light of victims who may not be able to afford hiring a lawyer. Some people may consider the risk of losing a case or having to pay more in lawyer fees than what they will receive in compensation. The risk of the monetary loss being greater than the compensation is what I believe would be more of a rational decision to lump rather than claim. Why pay money that needs to be utilized for necessities and other priorities at a risk of not receiving much compensation if any at all? That is not only a gamble but an enormous deterrent from claiming. Just as one’s social and cultural environment contribute to a decision to lump, so does the influence of other people close to the victim.
Relatives, close friends, and whoever the victim holds close in their personal life can all influence the victim’s decision to lump. In describing the influence of others on a victim’s perspective, Engel states, “For injury victims . . . interactions with their closest friends and family members will produce a shared understanding of the accident, why it happened, and what should be done about it” (p. 157). Before reading this chapter, my own personal experiences led me to agree with this. A friend and I were driving on a highway excited to reach the end of a three-hour drive. Unfortunately, we were met with traffic near the end of the journey. Consequent of the traffic, vehicles were suddenly coming to a stop and my friend did not start braking soon enough before hitting the back of the car in front of us. Fortunately, there were not any damages to either vehicle. The other driver whose vehicle we had hit was very hostile when we all first exited our vehicles. After my friend was apologetic, her attitude quickly changed and began saying “everything’s alright, at least both of our cars are fine.” She told us since the cars were not damaged we should all just continue on our way but if her husband was with her, the cops would have been called. This experience is just an example of why I completely agree with Engel that a strong influence of others helps a victim decide whether or not to lump. My friend diffused the situation by remaining calm when the other driver was screaming at him. His reaction caused her reaction to change completely. She did make it a point to let us know had her husband been with her, she would have had the situation result differently. This woman’s husband influences her decision-making because if there were visible damages to her car, he would have come to know later on, which would have led her to decide to call the police right then and there despite his absence. His opinion and what he would want her to do is a driving-force behind her decision-making. The same way this woman’s husband holds an influence on her, is the same way others can influence a victim into lumping.
Reform of the United States tort system would be intricate. Developing a way to mandate citizens to claim when injured would only flood our legal system. How are we supposed to magically stop citizens’ lumping attitude from being immersed into society and vice versa? Remembering the New Zealand Accident Compensation Act approach of eliminating the litigation process almost altogether may not be a feasible option either. Perhaps developing a middle-ground would suffice. Incidents where there is a clear injury and victim, such as being hit by a car, could be settled in a system similar to New Zealand’s, where there would be a lack of litigation and compensation to the victim. Situations where there lacks an evident injured victim or requires more inquiry into the defendant’s liability can be litigated to ensure validity and fairness. This approach may be difficult to create and exercise. As most things, it would not be perfect. There will still be deceptive citizens attempting to swindle the system and receive compensation or injured parties who deserve more than what the system decided they were to receive to be made as close to whole as possible.