Wednesday, May 2, 2018

Victims have feelings too

By Winston Zeddemore
Contrary to popular belief and what is portrayed in the media, the majority of victims who have a solid case and deserve to be rewarded damages never try to file a claim. When first going into law school, when all I knew about torts was what I learned from the television shows Judge Judy and Better Call Saul, I had these same preconceived notions of what tort law was. When telling my family I wanted to be an attorney, the first response was, “So are you just going to sue everybody?” The point of the matter is that the view of tort law held by the public is that it is a system for people to unfairly take money from others, which as we know is incredibly wrong, resulting in only a trivial amount of tort claims being successful. However, the American media didn’t invent this concept of a sue-happy America alone. Furthermore, for the reasons for the puzzle of why victims don't sue, one must also look at the victim’s own thoughts and feelings and not just those reinforced by society. Rather than suing the person or company that caused them harm, they instead they will often rely on their own insurance, federal programs, or other forms of assistance, otherwise known as lumping, to try and get by.  David Engel in his book The Myth of the Litigious Society: Why We Don’t Sue illustrates the multitude of reasons why victims hesitate and rarely seek compensation from those that cause them injury.

When first reading the title of this book, I thought that it was just going to detail how the media inaccurately portrays tort law, and how politics has a lot to do with tort reform. I was wrong in my assumption because Engel goes far deeper when addressing the question as to why don’t damaged victims sue. The biggest revelation I had was the amount of mental and emotional damage a victim endures in the aftermath of an accident or injury. The story of the victim identified as Greenberg on pg. 39-40 was what first made me take a step back and really evaluate my preconceived notions on tort law. In this example the victim is in a constant state of pain from the moment they wake up 'til the moment they go to bed. The victim has gone through a life changing, excruciating experience, and now must decide if they would like to go through the process of litigating their claim or simply lumping and finding a way to get by.

As stated by Engel on pg. 41, “People in pain form a new sense of their bodies and their very identities.” When reading this chapter, it got me to start thinking about how I myself feel after I have a crash or accident that results in injury and agree, people don’t always make the best decisions when they are recovering from an injury. What seems obvious now never occurred to me before, that the recovery process goes far beyond just the physical injury and can affect whether people want to fight their claim in court. As stated by Engel on pg. 172, “Serious injuries tend to create a sense of existential change and identity confusion, an inability to think clearly and act decisively while in pain, a sense of social isolation, a failure of language, and self-blame.” Speaking from personal experience, one of the times that I crashed my motorcycle, a car struck me and caused the accident. After the accident occurred, I could walk away from it but did have some shoulder and hand injuries I still feel to this day, and not to mention about a thousand in damages to my bike had I not been able to do the repairs myself. However, afterward, I never even thought to sue the person who struck me. I made excuses, saying, oh it wasn’t his fault, motorcycles are small and difficult to see when you’re in a truck. I justified the fact that I walked away and didn’t need an ambulance or have any cuts or road rash that the accident wasn’t that bad. Yet to this day I can’t handwrite anything longer than three pages without having pain. The point of the personal story is that the things Engel says about how an accident can affect a victim are incredibly true. Victims go through tremendous amounts of stress, life changes, pain, and all-around suffering. These changes and exhaustion are often some of the leading factors in why many victims don’t sue.

This revelation of the scope of the connection between the mind and the body during an injury really changed my personal views of tort law in general. Before reading this book, I had a kind of cold calculating view of tort law, and was prone to look at it as a problem of dollars and cents, when that victim is a person with already damaged feelings and emotions. A victim’s reasoning as to why they do or do not sue can go much farther than whether or not they will win, or if the injurer has a large quantity of assets. This book shows how the injury from the accident can further affect the victim’s own choice to go to trial. 

To combat the sheer lack of victims suing those that injured them, there needs to be tort reform, but not of the usual kind which seems to always limit the amount a victim may claim. To start things off, although not gone into much detail in the book, there needs to be a change in the media's portrayal of lawyers in general. At this point in time the only show where I can say a lawyer fights civil claims and is seen as a good guy is the Netflix series Daredevil, and to be fair, he is a superhero. The caricature of the sue-happy ambulance chasing lawyer needs to be erased and replaced with the lawyer who’s helping a single mother injured in a car accident due to a faulty airbag to sue the evil large car corporation. Unfortunately, that does not exist. 

On a more plausible note there must be a change to how civil trials are conducted in general. The first change that is desperately needed is a change to the rule that a victim only has a right to an attorney in a criminal case. Often times civil cases are not brought to trial because the victim does not want to pay a lawyer and risk taking a loss; this leads to many victims with good claims avoiding making them knowing that their opponent sometimes will have almost unlimited legal resources. A further change I would implement is how the courts treat the actual victims in an accident. Like in criminal cases, where there is a victim witness advocate to talk to the victim, explain to them their rights and what they can do, and provide counseling, there needs to be the same program in tort cases. Often times a trial can re-victimize the victim by making them go on the stand and relive the traumatic events that caused them the injury. Victims in tort actions deserve the same rights allowed to victims of criminal offenses for the same damage is done emotionally. 

In conclusion I learned from this book that the answer to the question why don’t people sue is rooted deeply in the psyche of the American consciousness. We live in a country where those that sue are stigmatized, and encouraged actively to not seek damages. The system we have in place for tort law ignores the mental and emotional issues that result in injury and needs to be changed drastically to help the victim seek damages. If what Engel said was true and “[s]ociety can be judged by how it cares for its injury victims” (pg. 7), then I think our society would deserve a C-minus at best.

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