Sunday, May 6, 2018

To Sue, or Not to Sue, That Is the Question

By Kseniya Ruzanova

From the outside looking in, many believe that America is the land of opportunity, for a lawsuit that is. However, according to Engel, that may not be the case at all. In fact, he suggests countless reasons and phenomena to explain why America, although labeled the “litigious society,” is too reluctant to sue.

In his book “The Myth of the Litigious Society, Why We Don’t Sue,” Engel dives into the world of the American tort system and into the minds of the individuals who become a part of it. Prior to coming to law school, it might be hard for law students to imagine that many choose not to pursue a lawsuit when there is a high demand for attorneys in many areas of the field. Engel suggest that it is certainly not because we are a safe society and have no issues to sue over; it is more likely because of the complicated process and deterrence methods used by the defendants before they even become a defendant. For starters, there is the issue that there are two sides to the tort plaintiff: the champion and the parasite. Some view it as a way to get the damages that the plaintiff deserves since they were wronged after all; others view it as an expensive way of complaining. Next, Engel explores the reasoning as to why there are so few claims when there is a plethora of injuries.  More often than not the costs of claiming exceed the benefits. Attorney’s fees are always massive, the outcome is uncertain, and the stress of the process can way a heavy burden on an already injured plaintiff. Lastly, there is a huge issue that was unheard of to me prior to this reading which is a question of “to claim or to lump?”

It is important to note that according to Engel, 9 out of 10 Americans lump. Claiming is defined as any effort by an injury victim to force the injurer to provide a remedy. While lumping is absorbing the cost yourself, getting help from insurance, or filing a workers’ compensation claim. To me that was not a big surprise; going into law school I knew that lawsuits are costly and long and was well aware that many are either settled or arbitrated. What came as a surprise for me was the reasoning behind the lack of lawsuits was not always the cost but other factors that are associated with the injured victim. The model that tracked injury cases before they mature into claims explained the reasoning and opportunities in which many people give up. Things such as unperceived injuries, and blaming were a surprise to me as being culprits. While being injured many victims turn to blaming themselves for the injuries that were obviously caused by the injurer but with time the victim turns the blame to themselves just to settle their own thoughts. Through the experiences mentioned throughout the books, it is indeed important to listen to those who were injured to determine why they changed their minds about claiming. “Bill Clinton told Americans he could ‘feel your pain,’ but it turns out that many of our friends cannot.” (Engel, pg. 44.) It is not until a person goes through the isolation and emotion struggles themselves that it is clear how hard it may be to go through the struggle and at the same time attempt to go through the legal process.

Another very surprising factor that contributes to the lack of claiming vs. lumping or even pursuing a lawsuit at all is the fear of judgment from the community. One of the examples mentioned in the books talks about how if the family wanted to remain in the community their best option would be to succumb to community pressure. “One of the reasons that I was extremely hesitant to sue was because of the community pressure…. Local people in this community are not impressed when you tell them that you’re involved in a lawsuit… That really turns them off… They’re not impressed with people who don’t earn their own way. And that’s taking money that they’re not sure that you deserve.” (Engel, pg. 137.) The most surprising part to me about that statement was the fact that this woman was more concerned about what her community thought of her rather than being concerned with getting damages for her suffering. The reason people sue is universally thought of to correct for what you have been wronged; if you are injured, the damages are supposed to make you whole again and not give you money you do not deserve. Yet, in this instance, the woman would rather take the loss and not be whole again just to keep her reputation a certain way in the community that she wanted to remain in. These types of ideas and influences are what shape the legal system outside the legal realm; we may believe that there are charts and maps that can explain as to why there are so few lawsuits, but in fact, it is because of the way our families, friends, and cultural environment influence our thought process. In conclusion, Engel made a very good point that when it comes to decision making throughout and before the legal process, the factors that influence us daily become the number one factor when it comes to understanding why most people choose to absorb most injuries without lodging a complaint or seeking a remedy.

The book overall was a very good source of education to a first-year law student and delved into areas that are not covered in our classroom. Engel made very good points that at times our legal society cannot correct every single problem; things we use every single day like chairs and stairs cause thousands of accidents a year, but that doesn’t mean we get rid of them. Just like Engel, I am not so sure that we would necessarily be a happier society if we increase litigation. Tort law is an instrument that waits for the individuals to bring their cases to the justice system, and it works to correct their wrongs. I do not believe we should take approaches and examples from other countries, New Zealand for example, because I am a strong believer in knowing that what may work for one country definitely will not work for the U.S. because of the size and complexity of our legal society. If I were to wave my magic wand and be able to implement some changes to the U.S. tort system I would definitely implement more educational materials for the public to be aware of. I believe that we as a society have really lacked in teaching the public about the legal system that they are supposed to use when they are injured. Many know that they can sue, but very few are aware of the process or any of the resources available to them. Those who are too scared to bring a claim because they are afraid of what will be said about them in the community, should be made aware, along with their community, that the tort system is not a punishment and is not a free hand out; it is instead a legal system used to make someone whole. Injuries without any sort of remedy are very bad for our society; thus educating the public about it would, in turn, benefit the system as a whole. I do agree with the point Engel makes about increasing safety regulations although they are outside the system itself. Deterrence is just as important as correcting the wrong if not even more significant. Making sure that deterrence tactics are working in the workplace would prevent many injuries, creating more effective products benefiting the society. I believe that by speaking and educating the public more about the tort system, we can not only change the social stigma but change the negative culture that surrounds the tort system today.

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