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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