Before I
get into the meat of this paper, let me just say that this book was a great
read. Extremely informative, yet easy to read. The knowledge was intertwined
nicely from a social science aspect, as well as from a legal one. This book was
one of the best books I have read since the summertime.
Now to
reflect on what I learned.
The most
eye-opening part of the book for me would probably have to be Chapter 4, “You
Think with Your Body.” Engel goes into a lengthy explanation in Chapter 3 regarding
why most people tend to resort to lumping rather than litigating/claiming, with
reasons being things like existential change, cloudy judgment, or self-blame.
In Chapter 4, however, Engel goes even deeper; using the mind and body
connection as to why victims do not litigate as much as we think they do. It is
explained that cognition itself is embodied, and that we think with both our
body and our brain. With this being said, when the body is injured, our thought
process about ourselves and our lives in general is injured too. Engel speaks about
what the components are of “the self,” according to neuroscientist Antonio
Damasio. The self exists within three components--the protoself, the core self,
and the autobiographical self (102, iBook). The protoself consists of special
feelings and images generated by the body’s relationship with its environment.
The core self is our subjectivity, allowing us to be aware of who we are and
how we interact with others. The autobiographical self however, poses to be the
most complex (103, iBook). Because it consists of the things we know and think
about ourselves as well as our
memories, the autobiographical self works both consciously and non-consciously.
So, when there is an injury to the physical self, the three components,
interpret the injury completely in the mind. This is the most interesting part
of the chapter, as Engel describes the injured self as a new person, with a new
identity and a new autobiography (105, iBook). So, in other words, the mind
has experienced just as much trauma, if not more than the physical body.
Because the mind is suffering, a victim’s judgment and rational thinking are completely
thrown out of whack. The rationale we normally have is convoluted by our non-conscious
thought as our thoughts become non-linear and flushed with painful memories
and numbness. Engel concludes the chapter by telling us that a victim’s mental
state after injury makes it nearly impossible to do anything but resort to
lumping.
Before I
read this book, I must say in regard to the information regarding the mind and
body experience and how victims fully experience injury, I would have thought
that injury would drive them to litigate that much more; I figured they would
be more determined to get justice for the bodily injury sustained. For example,
let’s say that a woman is involved in an accident and suffers a broken hip, a
broken leg, and cuts and bruises all over her face and upper extremities. This woman
would clearly be in an inconceivable amount of pain, but I figured that the
pain would anger her, make her want to take action against the person that
caused her injury. I didn’t think about how her pain would make her mind unable
to think about anything other than how she hurts everyday all day, or cause her
to replay the incident over and over in her head. I didn’t think about how
judgement would be skewed because of the pain her mind is trying to process. However,
in Chapter 6, when we learned that cognition and causation go hand in hand, and
that society tends to shape how one cognitively perceives causation, it made me
realize how difficult it probably is for certain groups of people to go forth
with claiming in our tort system. Blacks, Latinos, and women are marginalized
in society on a daily basis, and judicial decisions are often made against
these groups. How could one possibly go forward with claiming when your society
and culture make you think lumping would be the better alternative? Before
reading this book, I figured everyone could go forward with claiming anything
after being injured. Now I realize it is not at all that simple.
If I
were to reform our tort system today, I’d have to say I’d love to make it
mandatory that everyone puts forth a claim regarding their injuries. If you get
injured, you litigate. Bottom line. To me, if this were the case, everyone
would get the justice they deserve for their pain that they have endured. No
one would have to resort to the present problem of lumping. We all know
however, that this could only happen in a perfect world. Litigation takes a lot
of time, and a lot of money. If everyone had the chance to go to trial, this
country would need a lot more attorneys and a lot more money. So, while it
probably wouldn’t work in the United States, I still would wave my magic wand
as the justice fairy, and make claiming necessary.
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