By Corey Hirakawa
For me, the most surprising part
of Engel’s The Myth of the Litigious
Society is the preconception that decision making, particularly in the
minds of injured parties, is fundamentally conscious and rational. As in Chapter Two, Engel notes that the
decision tree model is inherently flawed because it assumes that would-be tort
litigants opt out as a result of rational and active decision; it assumes that
injured parties, after lengthy consideration and inquiry, simply rationalize
their injuries and decide not to claim (35). Later in Chapter Four, Engel
appropriately references Daniel Kahneman’s Thinking
Fast and Slow. According to
Kahneman, cognition is split for purposes of efficiency between automatic
“System 1” thinking and deliberate “System 2” thinking (56). Kahneman and Engel argue that much more of
our everyday thought consists of the faster System 1 thinking than we realize,
and so conscious decision making plays a smaller role by comparison.
Of course, it is no surprise that
non-conscious thinking plays an important role in everyday life; only the most
prudent and overprotective driver assesses every possible decision on the
roadways. But Engel will tell you that
this duality presents a novel issue in tort law, where injured people are
deciding to “lump” prior to any sort of conscious decision. Even if we could somehow consciously make
claiming a conscious decision, it seems that any attempt to rationally
understand a tortious injury is inhibited from the start. Environmental factors like physical location
and cultural influence subconsciously alter the way a person perceives their
injuries. So, what does that mean for
the lumping plaintiff? It means the “to
sue or not to sue” decision is no decision at all. It means that from the moment there is a
tortious injury, the aggrieved party has implicitly and unconsciously formed a
disposition as to whether they will claim.
Sometimes they do so, whether their litigation is successful or
unsuccessful. But as Engel will tell
you, there is a far greater number of plaintiffs who, at the moment of injury,
become predisposed to lump. It may be
because of religious background, the nature of the injury, or even self-blame. But due to any number of implicit biases, the
injured plaintiff is unable to consciously perceive their injury and make the
decision to claim.
Prior to reading Engel’s work, I
would have thought that even if Americans lump as much as Engel says, doing so
would be a conscious decision. Just
because Engel references Kahneman’s work does not mean that it necessarily
applies. But if Engel’s theory holds
true, and our fast thinking creates a post-injury predisposition, how do we get
injured plaintiffs to claim? Despite the
common perception that we sue too much, it seems intuitive that when a person
is injured by another, they are entitled to compensation. Even if the injured person contributed in
some capacity, their recovery may be proportionally limited. As Engel mentions, successful injury suits
can be beneficial to society as a means of deterrence. So how do we promote claims, if lumping is a
subconscious predisposition? Engel suggests
implementing social and cultural changes to mitigate fast, subconscious
decision making. But overhauling such
pervasive cultural influences is a daunting task that can only be accomplished
over a long period of time, assuming society is accepting of such changes. In the meantime, the number of lumped claims
will continue to rise as injuries go without due compensation.
There are alternative or
additional measures which may be taken to better reform American tort law. First, softening the administrative barrier
to entry may serve well to encourage claims.
As we have seen in New Zealand, a procedural system free of litigation
may make claiming a more enticing practice.
Injured plaintiffs may be less reluctant to lump if trial proceedings
are replaced with standardized forms.
But such a reform to the American system would be an even greater
undertaking, to say nothing of its own faults and shortcomings. Tort reform should be more moderate, to
encourage claiming without tilting the scales too far in plaintiffs’
favor. A second option is to find some
way to compel tort litigation, i.e., to make it a civic duty. Generally speaking, it is an unpopular notion
to force the American people to do anything.
But if tort litigation is truly a
beneficial means of promoting social change and deterring harmful conduct,
there may be a way to compel injured parties to come forward and claim, one way
or another.
An opt-out litigation system may
produce positive effects. When an injury
occurs that is flagged by some authority (e.g., the cops, the hospital), a
legal proceeding might begin automatically.
In the interest of personal liberty, the injured party might be allowed
to opt-out, but only by waiver, i.e., the injured party must actively stop the claiming process. Injury victims should not be sought out. Only those incidents which are recorded might
qualify. Ideally, plaintiffs should not
be punished because they opt out, or otherwise neglect some part of the process. But in the interest of promoting justice,
those who opt out might be required to pay a nominal fee or provide a
compelling reason as to why the litigation should not go forward. While such a system would arguably place an
undue burden on the plaintiff, an automatic litigation system would, at the
very least, overcome Engel’s cognitive hurdle by further removing cognitive
decision from tort law.
More than anything else, Engel’s
book provided a very compelling argument as to why the myth of American
litigiousness persists, despite data to the contrary. As anywhere else, people are significantly
prone to cultural and social influences as much as they are implicit cognitive
biases. While powerful, the fact that
these forces operate subtly and invisibly means they are not only difficult to
detect but to counterbalance as well. If
nothing else, an increase in tort claims would require changes in social
attitudes that make the process less unappealing on a subconscious level.
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