Saturday, May 5, 2018

The Phenomenon of the Penny-Pinching Plaintiff

By Bailey Kraus

Exaggerated or fabricated injuries, gluttonous lawyers, and plaintiffs searching to make a quick buck: these are all ideas that are associated with the supposed wheeling and dealing of the personal injury world in the United States. The penny-pinching plaintiff views even the slightest of injuries as opportunity rather than misfortune. This is where David M. Engel’s book “The Myth of the Litigious Society” emerges, clashing with this classic stereotype that Americans live in a highly litigious society, quick to jump on the lawsuit bandwagon that supposedly dominates our society. For those of us, which I assume is most of us, who have gone through life unintentionally absorbing these embedded cultural stereotypes, the title of the first chapter may come as quite a shock. “The Case of the Missing Plaintiff,” it reads. What missing plaintiff? Aren’t there already too many? Why in the world do we need more?

Contrary to popular belief, the idea of the eager plaintiff who is quick to hop in the courtroom at the first chance is just that: an idea, a myth, and farther from reality than most people are likely to discern. Engel refers to the far more likely response to injury as lumping. “A disputant with a valid legal claim who engages in lumping is one who absorbs the wrong rather than taking action against another party” (Engel 20). In fact, the vast majority of those who are injured do not even consult a lawyer, let alone begin the process of filing a lawsuit. Engel provided a factual basis for why this might be the case, including the potential plaintiff’s plain inability to do anything, and the both unpredictable and individual ways people handle the existential change that debilitating injuries can present. But, Engel also proposes a theory regarding the social and cultural environment of injuries that exists in America today.

In approaching the American culture in the personal injury world, Engel references a speech made by David Foster Wallace in 2005 where Wallace spoke of two fish who are ignorantly unaware of the water that surrounds them. “It’s often said that culture is like the water in which fish swim. We seldom give it much thought, but it surrounds us and shapes our every idea and action. The social and cultural environment constantly affects our perceptions and behavior, although its far less visible than the physical environment” (Engel 126). Just like the fish in Wallace’s story didn’t even know what water is, Americans are equally as oblivious to the culture that shapes our every move, including, apparently, our lack of moves into the courtroom. This is largely due to the backlash that injury victims receive from members of their community, fear of stepping on the wrong toes of someone farther up the socioeconomic ladder, or because our prideful, American culture tells us that it is our individual responsibility to fix things that are broken in our lives, including ourselves.

Engel’s contemplation of the embedded cultural stereotypes that effect the mere existence of lawsuits brought me to a rather interesting reflection of my own. Prior to reading Engel’s book, I thought myself to be a well-informed citizen, fully aware of the fact that frivolous lawsuits were absolutely not the majority and that the common trend was in fact to simply put up with whatever came your way.  But as Engel began providing examples of different situations that may reveal the American culture that is so deeply rooted in each one of us, I was reminded of my own reaction a few years prior. As a senior in high school, I was involved in a minor car accident, and the other driver just so happened to be a friend of a friend, whose locker was just a few down from my own. This very unfortunate situation that I found myself in created all kinds of awkward encounters, and living in a small town, I’m sure community gossip was somewhere in the mix as well. When I got the news that there would be a lawsuit to take care of any of the damages that insurance wouldn’t cover, I was appalled, shocked, and first and foremost, worried what others would think. Why in the world would they do that? We were in the same high school! Do they know how embarrassing this is? I remember my parents trying to explain to me that this was “just what people did,” and that it was important for people to feel like they can recover when things like this happened. But I didn’t care; I remained resentful, and I was honestly confused as to why it was necessary.

After reading this book, I have been made fully aware of the cultural stereotypes embedded in each one of us and how I am not immune to them either. I look back to that experience I had 6 years ago in a completely different light. Of course, there had to be a lawsuit. How could I have thought otherwise? Because, the “American-way” told me otherwise. The American way tells me not to step on toes, not to cause problems, and to deal with my problems on my own. But, after reading this book, I see how dangerous these stereotypes are. Allowing these cultural norms to creep into the courtroom is unknowingly hurting injury victims who feel too prideful or even too afraid to bring a lawsuit.

Perhaps the first thing we should be asking ourselves when trying to solve this case of the missing plaintiff is how educated are we, and how are we helping to educate the people surrounding us. I believe that simple knowledge regarding the reality behind the not-so-litigious society could do exponentially more than the so-called tort reformers have done since the idea was introduced under the Bush administration. American people need to be wholly conscious of what is going on around them, and more specifically what is not going on around them. Transparency is key – Americans should be made aware of the rights that they have when they are left as injured victims in a self-proclaimed victimless society. It should not be hidden, and it should not be something that needs to be sought out. I’m not sure how our deep-rooted belief of self-responsibility and the moneygrubbing plaintiff would respond to this, and I’m not really sure if our culture is something that can be shifted. But more transparency and knowledge regarding the reality of the personal injury crisis is the first step in reaching a place where every victim feels comfortable getting themselves to a place where they can live a comfortably.         

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