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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