The Elephant in the Room

By William Makell

In David Engel, The Myth of the Litigious Society (2016), Mr. Engel dances around crucial reasons why plaintiffs actually do not bring cases to court. Mr. Engel is correct in his determinations that many claims go without being presented to the court but falls short in reasoning as to why. Mr. Engel argues, in part, factors such as the intellectual level of the plaintiff, and goes into lumping, claiming, naming and other preliminary difficulties of establishing and filing a cause of action. However, the real reason why plaintiffs don't bring claims is because plaintiffs do not want to go where they feel unwanted – the court.

As a paralegal I did not deal with the legal issues and theories of my cases, but instead I spent most of my time directly engaged with the needs of the client. I interviewed prospective clients in regard to matters such as new automobile accident related injuries, new landlord tenant related injuries, and new land owner negligence related injuries. In each example, Mr. Engel is close, but not on point, to identifying the reluctance of the client regarding bringing cases against the injuring party. For example, my clients tend not to have the luxury of being able to lump even if they did want to lump. The real reason why my middle-age clients, who are so poor that they can only afford to live in places with falling down ceilings, are actually afraid to initiate causes of action in court against said slumlords, is because of how they would be perceived in the court itself. Mr. Engel’s scolding of the plaintiff in reference to them being possibly lazy or overconfident is vastly is misplaced and overreaching. In Mr. Engel’s conclusion he reasons that the feats of cognition are prone to biases and mistakes that arise without our awareness. In so, Mr. Engel fails to consider that clients are fully aware that when they go to court they will be locked at poorly and possibly with disdain – a potentially emotionally traumatizing experience. Without wrestling with a lack of confidence in the court system, as a conscious choice for why claims are not brought, Mr. Engel’s analysis will never be complete.

Businesses are people too, my friend, but only business wins. Mr. Engel has a hard time wrestling with the idea that most cases in American society are not brought by individuals who were born with a pulse and blood coursing through their veins. However, in most cases like the overly used example of automobile accidents (which are consistently referenced as examples), action is brought on behalf of insurance companies against insurance companies. His readily used example seems to have a built-in flaw of physically injured person with insurance company as named plaintiff. Mr. Engel should deal with the fact that most litigation is not brought by breathing individuals against breathing individuals and therefore the model used to represent the “process of injury,” such as lumping, claiming, and litigation cannot be the root cause that produces a lack of filing petitions. But for the sake of argument, even if we were to limit Mr. Engel’s rationale to breathing individuals, his “decision trees” do not factor in an unfavorable perception of the court as a possible deterrent. Mr. Engel does not examine the level of disdain many plaintiffs tend to assign to the court system out of frustration because of the court’s being perceived as not being able to deliver relief. For example, (1) how likely is it that a wrongful death case against the a local police office would prevail and (2) even if there were injury then (3) does the perception and assumption of how the court will behave (not the plaintiff or defendant) bear on the plaintiffs decision to bring suit? Yes, of course it does.

Mr. Engel spends time in Chapter 5 speaking of responses to injuries. He gives us examples of “backtracking”; he also speaks of potential clients freaking out about legally sophisticated issues in essentially unsophisticated manners. But Mr. Engel never really goes into the rationale that plaintiffs simply do not feel welcomed by the court. Maybe the plaintiff begins to engage in what Mr. Engel has described, simply because the plaintiff is reluctant to bring the suit, having nothing to do with injury or defendant guilt but rather because it concerns the indifference toward the court. In other words, if the public genuinely viewed the court as an agency of relief, then would not the human rationale subconsciously or consciously persuade the public to seek said relief at said court? Operating in natural self-interest would compel the everyday person to go to the venue in which they believed they could find the relief in which they sought. To me, it does not appear to be the client’s self-perception, as Mr. Engel seems to suggest at times, but rather the reluctance to sue stems from the client’s perception of the court process itself. This occurs regardless of perceived fault, and this unfavorability of the court tends to outweigh the unlearned client’s causation analysis, as Mr. Engel also suggested.

Mr. Engel does not consider the fait popularity of the court to be a factor shaping a culture of missing plaintiffs. Mr. Engel makes a wild assertion that persons of lower socioeconomic status were most likely to benefit from personal injury claims and did not espouse them simply because they have internalized the predominant cultural norms favoring lumping. Mr. Engel then goes on to blame the media for said norms. However, not once does Mr. Engel suggest that the same class of people do not sue simply because they are used to not receiving relief from the court on a general basis. This specific population among others, for example, tends not to believe the court will administer justice even when plaintiffs display valid claims. Instead of taking Mr. Engel’s suggestion that we ought to refine media tactics, I would suggest that the reasons why so many injury victims make no claim at all despite their sometimes desperate circumstances is because they do not believe in the system itself.

Mr. Engel’s conclusion regarding how the culture might change actually fails to address the elephant in the room of an unfavored court system. Without Mr. Engel addressing the failures of the court, then Mr. Engel’s analysis will always be incomplete.