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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