Tuesday, May 8, 2018

The Myth of (Conscious Thinking in) the Litigious Society

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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