Friday, May 4, 2018

Tort Reform: A Fly Over Perspective

By James Black

Mr. Engel’s book The Myth of the Litigious Society1 takes an interesting look into the widespread misconception that Americans are willing to sue over anything.  In chapter two he describes a situation in which an injured party had an arguably valid reason to seek compensation for injury but choose not to. Mr. Engel defined this as “lumping.”  Chapter two is the foundation of his book, and without a solid understanding of his concept of “lumping,” his reader would not be able to understand the main premise of his work.  To his credit, Mr. Engel brings a solid body of work in empirical data to back up his original claim that the American society is not the “sue happy” society it is often portrayed as. When applying his theories to my own understanding and cultural upbringing this makes perfect sense. 

The first part of this assignment to reflect on my own understanding of civil litigation.  My reflection centers around why someone from a prairie state would choose to not sue someone caused great bodily injury.  I could say that my Judeo-Christian values added more steps on the way to litigating at the courthouse not discussed by Mr. Engel.  Matthew 18:16-18 (NIV)2 gives the guidelines on how I should approach a problem or injury in relation to making myself whole.  First in verse sixteen, I am asked to personally redress my injury with the person who injured me.  If this does not provide satisfaction, verse seventeen directs me to bring a fellow christian and member of injuring party’s same church with me to act as an arbitrating/mediating agent.  Lastly verse eighteen concludes I take the issue to the church and make a public case.  If these actions fail I am then to treat this injurer as a “pagan, or tax collector.”  So maybe by a biblical standard, litigation against pagans and tax collectors as a first recourse is always acceptable?  It is not entirely clear past this point what any legal recourse is to be done, or what is acceptable.  This biblical arbitration/mediation is considered “claiming” to Mr. Engel (p. 32).

The real focus I would like to address are other problems that might hinder potential litigants from entering the court.  First and foremost, there is a presumption the injured have access to lawyers who are willing and able to take the cases.  For significant parts of the country, this is not always the case.  For example, in Kiowa County, Oklahoma, where my family resides, there are only five lawyers who currently practice.  If we subtract the judge and the district attorney, that leaves three lawyers to litigate every issue from criminal, family, trusts, estates, property, and finally civil law.  There is a very real possibility that all three of these lawyers are unable ethically to take a case; they could be representing the possible defendant or their family’s interest in another area of law.  These ethical dilemmas can pose a significant obstacle to one’s civil litigation claim.  This lack of access to the legal profession is a considerable problem for many people in the Midwest. NPR refers to this phenomenon as the “brain drain.”3 Without young professionals willing to practice in areas of the country, like mine in the Midwest, Access to any type of profession, whether it is law, medicine, and even the clergy is becoming a serious problem.  One that is only adding to the number of legitimate lawsuits that never get filed.  Most people do not know where to begin filing paperwork to attempt a “pro se” litigation.  So I wonder whether Mr. Engel factored in the number of potential litigants who simply are not given the opportunity to start the decision-making process to litigate.  These potential litigants may be willing to move through the perceiving, naming, and blaming process that Mr. Engel sets out in chapters one and two but are inhibited from the final process.

If the potential litigants decide to bring in outside counsel, then Mr. Engel fails to cover what will likely happen to plaintiffs in a fly-over state.  The driving distances to other attorney offices from the county seat in Hobart, Oklahoma, are greater than 40 miles, and as noted in the NPR report, that is getting off easy.3 Factoring in the costs of travel alone, contingency basis litigation is simply too expensive for many.  Victims may only the choice to “lump,” but are then persuaded “lumping” is really their best choice.  Chapters six, eight, and nine cover the social and political movements that are designed to discourage would be litigants and accept “lumping.”  Chapter six states that victims who chose to litigate are shown as greedy and dishonest charlatans who are taking away not from faceless business, but from fellow citizens.  Potential litigants are also led to believe money from a lawsuit will not replace their injuries, therefore turning to the religious doctrines of forgiveness are the only way to bring them relief.  His examples from chapters six and eight brought back memories of being in my hometown church for Sunday worship.  The sermons I heard taught us reiterate time and again a “true christian” loves Jesus and forgive their injurer as Christ “forgave” them.  These are massive social pressures that may not intend to, but clearly discourage civil litigation. 

Chapter nine really delves into the core of societal pressures to encourage a “lumping.”  I feel Mr. Engel really got to the core of litigant’s silent struggle discussing the other ways the “haves” influence the “have-nots” to not sue.  Oklahoma, like many states, holds on to an employment-at-will doctrine.4 This doctrine has been challenged and is now construed to only be in violation of “the duty of good faith” when depriving someone “the fruits of their own labor.”  So a plaintiff may find themselves without a job once they conclude a court case even when the employer is not a defendant.  Even worse, there is a fear extended family members or spouses could also be terminated due to an injured plaintiff filing their suit.  Social pressures quickly stack up not just against the plaintiff, but also against their employer, friends, families, and social circles.  As discussed in chapter eight these forms of pressure are very real, and very hard to overcome for an injured party of lower income.  The worst possible outcome would be a plaintiff who pursued their just compensation, only to become a punch line of a joke.  For example, in the infamous McDonald’s coffee case, the initial trial gave what was then known as a ridiculous amount of punitive damages against the defendant.  In the remanded case, the plaintiff and defendant agreed to settle out of court (p. 141). However, the court of public opinion had already handed down its own ruling, and there is seldom an appeal.  What is not reported is the social ostracizing, mocking, and shaming the family endured from their peers who knew of the case, but not the facts--which does not seem like a real stretch of the imagination when a major country music singer is still criticizing the decision to seek damages in a very popular song 15 years after the issue was settled.5 So, what is an injured party to do?  Well looking at Oklahoma’s increasing number of people seeking disability verses the number of lawsuits the answer is clear: seek disability, not litigation.6 As Mr. Engel points out, this is also a form of “lumping” (p.21). 

Having potential litigants forgo litigation and choose disability also has some major social connotations for the injured.  If there is a loud scream for tort reform, there is an even greater cacophony for the reform of the “social welfare state.”  Ironically, the very people making all the noise provided a way for the injured to get compensation from the injuring party while keeping their dignity.  The state will now sue for any injured party “parens patriae” so that hard working citizens do not have to shoulder the financial load of a negligent tortfeasor.  The injured can continue to exist in their society free of a guilty conscience.  I am certain there will be no backlash politically or legally against such a wonderful solution.7    

I had a friend come home from Iraq and started having major seizures.  It was life shattering for him.  He was training to become a commercial pilot and had close to the grueling 1,000 flight hours needed to start training on jet engines.  His seizures effectively ended his career.  Instead of going to a Veterans Affairs hospital for free treatments and medical care, since it was service related, he said, “to hell with the government” and just paid for his treatments out of pocket.  He has never set foot inside a VA hospital, nor did he apply for vocational rehabilitation when he started his new career path in nursing school.  As I watched my friend leave $100,000 of benefits on the table I thought it was just silly pride.  After reading this book I am starting to understand his incredibly insane behavior, is a normal response for Americans.  This book helped me see my friend’s decision in a newer light.           

The last requirement of this assignment is to wave a magic wand and to come up with a system that will work to truly allow us to make a system to correctly right all civil wrongs.  While it is fun to play “what-if,” I do not believe we really want that.  The reality of our society is too quick to point to someone suing for damages and lambast them for “just wanting money.”  I doubt too many of the people with the largest megaphones, especially country music variety, have taken the time to understand money is all we can offer them.  Now, for the last part of this assignment, If I had a magic wand I would make society accept cloning and stem cell research so that one day I could sue to recover damaged body parts: a true you break it, you buy it system.  The defendant pays to regrow whatever the plaintiff loses.  This way there is no societal pressure to not sue, because they would not be greedily seeking compensatory damages.  Any punitive damaged awarded would go to a civil legal fund to regrow damaged body parts from indigent defendants.   A litigant could get back their missing parts and get on with their lives.  All other injuries are redressed like we do now!  However, until we start cloning heads, shoulders, knees, and toes, we will simply keep awarding that “dough!"

1.      David Engel, The Myth of the Litigious Society: Why We Don’t Sue (2016).

2.      Zondervan Publishing, The Holy Bible (New International Version) (2000).

3.      Jason Beaubien, Midwestern States Struggle to Stem the Brain Drain,, Mar. 21, 2008.

4.      J.C. Pletcher, Employment-at-Will and Wrongful Discharge in Oklahoma, 23 Tulsa L. J. 495 (2013).

5.      Toby Keith, American Ride, TobykeithVEVO,, Nov. 25, 2009 (skip to 1:46 to see the reference).

6.      Chase Cook, An Era of Disabilities: Oklahoma Watch, May 2, 2013,

      Gabrielle J. Hanna, The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual and Class Claims, 92 Wash. L. Rev. 1955 (2018).

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