The dog has lost its bark

By Brenton Callaghan

Despite the attention that civil claims receive by our distributive justice system, very few of the many Americans who are injured actually seek corrective justice. This is the rub that propelled David Engel, a law professor, to wade into the issue of “Why the dog doesn’t bark?,” or more straightforwardly, why Americans don't more often sue when they can, despite the notion that they often do.

To unwrap this dilemma, Engel first gives background and context to the United States tort system, which were some of the best parts of the book. It hadn't ever seemed so, that Americans as a whole were overly litigious. It seemed, prior to law school, that people interested in a quick buck combined with overly litigious lawyers manipulated the system in such a way that we lived in a society that was disproportionately concerned with liability exposure that could be exploited. The overview of how modern tort law came to fruition during the industrial revolution to deal with a host of new injury concerns, and changed the old concept of “you broke it you bought it” to a need for proof of a negligent act puts into context tort law as an idea. From this period, Engel progressed quickly to illustrate to us the overall periods of change in tort law, from late 19th century buyer beware, through the liberal mid-20th century notion of tort law as a means of furthering public policy and equity. It was this expansion of tort theory that gave way to the modern reality of tort law we are experiencing today.

Engel, after showing empirical data and research to back his claim, turns to the idea that those who are injured are not seeking legal remedies, which he points out has a tangible effect on those who are injured, particularly in terms of quality of life and income. Engel explains that there are two groups of injured parties, the claiming and the lumping. The claiming are those who pursue legal claims against those that who injured them. The lumping are those who resign themselves to dealing with the issue without remedy and are the focus of the book.

What this book does best is exemplified in chapter eight, wherein Engel discussed the societal and cultural reality as it relates to tort claims in the United States. The chapter that begins with the great David Foster Wallace continues to be as philosophical as the previous few chapters, but it begins to examine the culture we often don't realize we are a part of and how that makes tortious wrongs relative to the place and time they are committed. One of the great confusing aspects of first-year law school is reconciling the rule of law with the average reasonable person. In this chapter, Engel is able to illustrate well the relative nature of actions, and that simply experiencing pain is not automatically injury. Giving birth had been my only previous exposure to a pain that is not necessarily injury, but by using historical notions of beauty and religious custom, this concept was fleshed out.

While the good aspects of chapter eight permeate throughout the book and give excellent insight into the concept and the benefits of an effective tort system, such as it benefits humans by accelerating the rate at which we improve, it often becomes too philosophical. This is exemplified on page 78, wherein Engel quotes Maurice Merleau-Ponty, “[The human subject] is nothing but a project of the world, and the subject is inseparable form the world, but from the world which the subject itself projects.” Furthermore, while the book is great for law students to read as it furthers their understanding and appreciation of tort law, and will inform them of the reality beyond the misconception, this work feels best suited to be handed to a member of the legislature before they vote for more tort reform.

As stated earlier, I thought, prior to this academic year, that certain people seeking money combined with lawyers interested in the same had acted in a manner that distorted how people viewed liability and caused them to act accordingly. Engel showed how this misconception is much more deep-rooted than that. That there is a monied interest controlling propaganda working to make many think there is an issue where there is not. People hear a biased version of a polarizing tort claim and it makes the entire field seem suspect. After reading this book, I have been assuaged by a feeling that it could be easier to fix this probably than I had previously thought.

The little I know, to inform how I would change the tort system for the better, leads me to believe there are two steps that are necessary in achieving this aim. First, it should be attempted to alleviate the influence of defendants that have large enough resources to further attempt to skirt responsibility for the results of their money making endeavors. As Engel pointed out, to counter the attempts by the Supreme Court of the mid-20th century to further the interest of plaintiffs, large corporations and insurance companies have spearheaded a charge to have the courts consider the plight of companies equal as they do the people.  Second, and most importantly, their needs to be an increase in education of the public on legal matters. Standard curriculum should include basic legal knowledge. From the practical, like how to deal with cops, to the more abstract, like what the tort system is,and what constitutes a tort claim, the people by and large and unaware of what would be a waste of their time and money and what would be reasonably actionable. At times, it seems that Engel is standing too close to the painting to see the whole picture, he seems to overlook the vast difference in knowledge he has and the average person has when he tries to assume what is the driving force behind the unknown plaintiffs subconscious. It seems more likely that people have come to see the tort system as something that is time consuming, costly, and only worth it under the most egregious cases, or it is for those desperate enough for the money to deal with the sunken cost of such an endeavor. This has combined with their general lack of understanding for how the legal system works, is intended to work, and operates, to result in a system that is failing the people the system is intended to protect. Engel doesn't touch on whether it would be a good thing or a bad thing if more people sued for injuries sustained; he says he would need another book to do so, and I believe he would. However, it is my general opinion that a better system would certainly be one in which at least a sizable increase in the ratio of torts to tort claims occurs.