Monday, May 7, 2018

To 'Lump' or Not to 'Lump'?

By Banessa Gonzalez Mejia

After reading “The Myth of the Litigious Society” by David M. Engel, I can classify myself as a “lumper.”

But what does that mean? Lumping occurs “when the victim makes no phone call to insist on compensation from the injurer or the injurer’s insurance company. Instead, the victims rely on whatever resources—financial, psychological, and spiritual—they can muster on their own. Relying on one’s own health and accident insurance or on government benefits are all forms of lumping” (Engel 21).

But why is “lumping” such a bad thing? Failing to file a claim after a victim is injured weakens the legal framework created to provide individuals with social justice. To start, it’s meant to provide “just compensation” in order to make the injured victim “whole” again, with the purpose of helping the victim get back into society and continue on with their lives. Additionally, tort law is meant to deter the tortfeasor from making egregious choices and to work toward minimizing the risks involved that might harm other members of society. Furthermore, tortfeasors can be required to restore that which they have taken away from the victims, through “corrective justice.” Lastly, through “loss distribution,” the victims aren’t forced to absorb the entire loss themselves, but instead the loss is distributed across a broader population (Engel 15).

Engel accurately describes some of the reasons why we as Americans don’t sue as much as society thinks we do.  Even though we might be known as the country with the highest litigation rates, that’s simply not the case. After reading Engel’s book, now I’m able to understand some of the reasons why as a society we fail to file a claim, after we’ve been injured, in order to pursue justice.

A vast majority of injury victims fail to sue, and it’s hard to comprehend why this occurs. For example, one of the reasons why victims don’t sue is because after they’ve been in an accident they may have experienced [real] serious trauma, which then disrupts their decision making. When one is faced with pain, a disruption of everyday life, and loss of income, victims are placed in a situation which truly takes a toll on their body and psyche and ultimately disrupts their ability to make decisions. Pain and suffering become so unbearable that filing a claim might be the last thing on the victim’s mind. Imagine your daily routine for a moment and what would happen if you got into a small fender bender on your way to work. A small accident would most certainly ruin your day and cause aggravation which will shift your focus and impair your judgment.

Social norms play a big role when filing a claim. Social norms have dictated that accidents are a way of life and that we should just consider ourselves lucky that it wasn’t worse than what was experienced. Obviously, there’re people out there who have it worse than we do, but why not protect the next victim from being in our shoes by holding the injurer accountable for their actions? Why do we let social norms make us feel like horrible people for wanting just compensation for our loss, our pain, and our suffering? In fact, this becomes a difficult question to answer.

In addition, self-blame is another example of why people don’t sue. Several individuals feel reluctant to hold others accountable for an accident or injury. The problem lies where victims are unable to differentiate between accepting self-blame when they actually did something wrong and are acknowledging it, versus self-blame when it’s not rational or justifiable, but they still decide to blame themselves as a coping mechanism in order to move on from an uncomfortable situation.

Fear of the justice system along with negative stereotypes is also a factor. The unethical lawyer, the ambulance chaser, the money-hungry, the power-hungry, etc., are all different negative stereotypes that have been used to classify lawyers in society. In addition, many individuals think the justice system is rigged and only the people who can afford the top-notch lawyer from an Ivy League school will win in court. Movies, shows, and stereotypes helped create a real fear in victims, which prevents them from even wanting to invest their time, money, and efforts into something that might not be so fruitful in the end.

If I could wave a magic wand to change the litigious system in some way, I would want individuals to stop being so afraid of the system and make those other individuals accountable for their actions. The negative stigmas associated with lawyers are really a huge setback when it comes to wanting to file a claim. There’s also a negative stigma when it comes to the justice system, in which many think they have no chance at winning and that it won’t provide justice.

Before reading Engel, I was under the impression that we lived in a highly litigious society, but now I can see why this statement is incorrect. However, because individuals fail to hold tortfeasors accountable for their actions, the absence of such claims will eventually weaken tort law’s early warning function. “The goals of compensation, deterrence, loss distribution, and corrective justice are a function tort law has long served in American society—it flags new kinds of risky behavior and unsafe products and services” (Engel 179).

Thus, failure to bring such claims weakens the legal system in a way that will have ripple effects and consequences for society as a whole. For example, companies that create defective products and are not held liable might not have any incentives to change defective products and business practices. Injurers who break the law will not be brought to justice to deter such acts, enabling them to potentially continue to break such laws and hurt other victims.

As such, one of the main reasons why I decided to attend law school was because I was tired of seeing how some of my family, friends, and even myself were injured either financially, emotionally. or physically by such tortfeasors. Looking back, it angers me to think of all those injurious individuals that we failed to take to court, who should have been held liable for their actions in order to deter them from hurting other people in the same or similar circumstances and are still out there without any legal consequences. However, the possibility of bringing a few of those tortfeasors to justice by helping my future clients gives me that much needed motivation to succeed in law school and to give back to society when I’m able to do so.

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