Wednesday, May 9, 2018

'The Myth of the Litigious Society' Reflection

By Camille Evans
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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