Friday, May 4, 2018

The Myth of the Litigious Society: An Innocent Student’s Perspective

By Mike Wizowski

David Engel’s The Myth of the Litigious Society is an enlightening and interesting view of our tort system from a perspective that has not often been shown in the case readings.  Engel’s book focuses and attacks the traditional, and quite possibly trivial, notion that America and its plaintiffs are sue-happy individuals. 
If Engel’s research and conclusions about the plaintiff who, in actuality, “lumps” his or her case, turns out to be a valid assertion, then this conclusion would have a generous effect on the way judges decide cases as well as the tort system in general.  One of the assertions that was most intriguing was the fact that if plaintiffs are “lumping” their claims, then the tort system is severely injured because it cannot compensate victims effectively, deter injurers, redistribute losses, and enact moral justice (Engel, p. 177).  Engel provides evidence in each chapter showing how the injured are prone to lump their claims because of conscious as well as unconscious tendencies of the brain after an injury (Engel, ch. 4).  One of the most intriguing discussions was about real-life injury victims and problems each incurred subsequent to the injury.  Victims spoke of the immense pain that would render their minds and bodies absolutely useless until the pain subsided, and how morphine would induce hallucinations and sometimes prevent the injured to construct sentences in a rational manner.  Engel asked how the injured would have the capacity to seek legal attention when his or her brain cannot even function outside the realm of pain.  This conclusion was the most persuasive, real-life, viewable evidence reasoning why a plaintiff would choose not to retain legal counsel, and instead lump the claim. 
Before reading Engel’s The Myth of the Litigious Society, I had yet to question whether or not plaintiffs brought suit, but, from my reading, assumed plaintiffs would be happy to bring suit whenever injury resulted.  After reading Engel, if the data and theoretical research proposed is correct, then my view of the tort system must change as well.  Engel speaks about the goals of the tort system being to compensate victims, deter injurers, redistribute losses, and enact moral justice.  It seems logical that the tort system cannot address these goals if the injured refuse to bring cases.  Engel points out that injurers are not being deterred, but in fact, the exact opposite is occurring where the injured fail to bring suit.  These conclusions have vast implications and questions that need to be answered surrounding the tort system.  Namely, what has the tort system done to deter the injured from seeking “to be made whole” in the system that should be the sole distributor of justice. 
The tort system seems to be a product of capitalism from Engel’s perspective.  Costs are high, and plaintiffs are expected to be prudent, reasonable men and women who function rationally and efficiently in times of injury.  Plaintiffs are expected to do what is in their best interests, which the tort system believes is bringing suit to be compensated.  This rationale should be analyzed with time.  After an injury, in this case, one with severity, the injured plaintiff, as Engel stated, is not thinking about being compensated from their injury, but, rather, about who is calling the ambulance, so they do not perish on that day.  After a short period of time has elapsed, and the plaintiff is no longer facing the imminent threat of death, he or she is in the hospital facing the pain and confusion surrounding the shocking incident that took place a day ago leaving them bed ridden.  Now is the plaintiff thinking about compensation?  It would seem that compensation would not be a top priority in light of the shock and pain of the person.  Rational thought, in severe injury cases, is typically not present.  Engel shows how the mind is coping with the transition in and out of pain, as well as the shock.  These issues are present while the thought of compensation is not immediate.  As time progresses, compensation may never occur because of pain and suffering, and thus, a suit is lost to lumping.
If the tort system’s basis, its income if you will, is based upon the injured plaintiff bringing suit each time he is injured, then its function, or projected outcome will not be satisfactory because the system has formulated itself to equal an outcome when the wrong input is identified.  Is this because the tort system does not attribute enough respect to the pain of the plaintiff, or that the defendant is geared up to win most of the time?  I do not know the answer to these questions, but I do believe the pain of the plaintiff, as pointed out by Engel, isn’t given enough weight in the civil process.  The system is supposed to be based on equality and making the injured whole again, balancing the two sides if you will.  To balance each side, or an equation, you must know the starting point.  If the system’s starting point, its reference point for the balance, is flawed in the beginning, the result of the equation will be incorrect.  The civil system, ideologically, has started with the injured plaintiff and the defendant.  But the plaintiff’s weight is not calculated correctly.  The plaintiff’s pain and suffering is not correctly understood by the system.  The system fails to take into account how hard it is for the plaintiff to battle against the hallucinations, constant pain, social isolation, drugged psychosis, mental toll, etc. that an injury can have.  If the system fails to understand the plaintiff’s initial pain and suffering, the initial battles of injury, then the civil system may base conclusions in favor of other outcomes without the proper authority. 
This leads to the case of policy.  For instance, policy is a large contributor to decisions by courts.  Policy can be based on deterring plaintiff from bringing too many suits against companies because a decision may render the company liable to practically all.  This policy takes into account logic and calculation to achieve its ends.  What the policy rationale forgets is the initial starting point, the reason for the case.  People will say they understand another person’s pain, but often, they have no clue about what happens to the injured.  The system merely understands that an injury has taken place but does not understand the pain and suffering associated with it.  This is a fundamental flaw with people as well as the civil system that reflects them.  The system is a product of capitalism that protects the interests of industry over the reason the tort system was enacted.  The tort system was put in place to compensate the injured and deter tortious conduct.  How can these goals be achieved when the system is basing policy decisions on the protection of industry?  If an industry has committed a wrong, much like if an individual has, the outcome should be the same.  In the case of the individual tortfeasor vs. the plaintiff, the system views the incident without its “industry goggles.”  Where a nuclear power plant is responsible for giving communities cancer, “industry goggles” prevent the civil system from understanding the pain and suffering those individuals will incur.  The court simply states that liability will be too great and dismisses the case.  What justice has been done?  Policy takes over and logic overcomes the inclusion of human emotion and understanding.  The tort system forgets human pain and suffering, forgets the reason the system has been enacted, and forgets justice. 
In a perfect world, the tort system would be unbiased, courageous, and unyielding in the pursuit of balancing imperfections, in the pursuit of justice.  There would be no policy rationale weighing the interests of economics and capitalism over the pain and suffering of individuals.  The system would not be fearful of liability to large corporations, but rather, would punish when wrong occurred.  Is this feasible?  I think not in our lifetime or for the rest of time.  The United States would never have room for such an illogical, childish dream.  The human tendency to fail to understand each other looms in the shadows of policy, ensuring the wrongs and injustices of companies are not punished too harshly, but maybe just a little.  The law exists to deter and compensate wrongs, and cannot do so when people, as well as their reflection in the civil system, continue to fail to comprehend or understand the pain of others.       

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