Thursday, May 3, 2018

The Truth Behind Litigation in the U.S.

By Annette Mendoza
Litigation in our tort system is said to be a highly contested topic in the United States. Society views litigation as a problematic consequence to injury and thus the legislature is constantly working toward making improvements in our governing laws in order to discourage citizens from filing claims against their injurer. According to David M. Engel, the author of “The Myth of the Litigious Society: Why We Don’t Sue,” the government is doing a disservice to its citizens for shifting the belief of litigation to appear that there is an excess of litigation. Tort law is another mechanism that allows injury victims to satisfy their post-injury needs (page 8). Professor Engel’s book primarily focuses on debunking this theory in American political discourse and diving into a new assertion of the facts, the facts that work contrarily. Most Americans “lump” their claims and absorb the wrongdoing versus holding their injurer liable and pursuing their claims. There are various factors that are taken into account as to why citizens prefer, or at times have no option but to lump their cases. The process that currently holds effect requires the injury to occurs, the victim to name the injury, the victim to blame the injurer, and then to assert a claim (page 31).

I had my own opinions regarding the civil dispute system before reading this book. Societies across the U.S. experience economic and social disparities that place them in disadvantages. Socially marginalized people are the burdened ones in the tort system because they accept social injustices and often times give up their right to make a claim. The author speaks about social environments impacting our decision-making and the way we perceive injury. This is something I previously learned as an undergrad and have seen play out in life. I have seen my best friends' parents unable to file a claim due to financial reasons and also their surrounding familial circle shedding negative light that then influenced their decision to lump. It is true that outside influences deeply impact the decision of claiming or lumping. Social and cultural environments definitely alter the discourse of litigation because it changes our perceptions of injury.

There are several things I have learned while reading this book that has completely changed my perspective on the tort system. I had known that social environments may play a major role in the victim’s decision of pursing a legal claim but there were also other important factors I was not aware of. Injured victims make no effort to shift any of their injury costs to the injurer in order to hold them responsible for their actions. Instead, they rely on other resources--financial, psychological, and spiritual--they can come up with on their own (page 21). Contrary to popular belief, lumping is more than likely to occur than claiming, which is an effort by an injury victim to force the injurer to provide a remedy (page 21).

I also learned that making a claim is not as linear as most people think it is. According to most researchers, there are four stages in the development of claims: unperceived injurious experiences, naming, blaming, and claiming. According to Engel, there are features to his model of injury and cognition that were missing pieces to the other models. One of the most intriguing parts of the book is that the mind doesn’t operate independently of the body. “Cognition is embodied; you think with your body, not only with your brain” (page 53). Cognition and response are interactive and multidirectional, not linear, meaning that thoughts and actions are not linear. There are times that the sequence to feelings and ideas regarding the injury accident are mixed around. This can deter the victim from filing a claim and can happen in various states of the model.

The victim’s decision-making and the making of conscious choices alters the outcome of either claiming or lumping. Another important aspect of claiming is that all injured victims internalize their newfound suffering. Some victims tend to “blame themselves for their suffering event though their accident resulted form another person['s] wrongful act” (page 47). A claim is most likely unsuccessful at the early stages because the victim is “alienated from self and friends and unable to rely on language to communicate one’s new circumstances” (page 47). Another factor to take into consideration is that causal judgments are deeply rooted in the conversation. “Causation isn’t something we can observe or detect; it’s a matter of belief derived from experience” (page 87). The failure to perceive a causal connection between the injury and the source may result from a lack of knowledge may lead to lumping. Another important reason for lack of claiming in the U.S. is the link between morality and causal judgments. The perpetrator in this case would not be as likely to be taken to court if the person is good in nature.   
Ultimately, people in the U.S. lump rather than claim. There are fundamental issues with our current tort system that fails to marginalized communities and people who suffer major inequalities. The current rhetoric around litigation in our society is based off of false ideologies. Litigation is not overly saturated with tort claims. There are various victims that do not follow through with claiming. There are social, cultural, and inner issues that prevent the injury victim to engage the litigation.

I believe a way in which our tort system can be reformed in the U.S. is by focusing on our legislative measures and allocating resources at the ground level in our communities. Changes have to begin with our government. We must change the rhetoric concerning claims in the tort system. There could be public policies that protect the individual. An example would be that injured victims would be able to bring a claim even though their monetary compensation isn’t extremely high. There could be more networking programs in individualized communities for support of injured victims in order to lessen judgments. There is disconnect between the government and society where the main principle is bringing justice to those who are injured and being shamed away. The every day language used should be more inclusive of those who are injured. Those who are injured should feel support by their communities because it is their fundamental right to make a claim and not feel as if they are being “money hungry.” The feasibility of my proposed approach is manageable. With the proposed plans, the truth behind litigation can be rectified. There is a possibility that this might work in the U.S. as long as the dynamic is fact based.

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