Wednesday, May 2, 2018

We as a society should not tolerate 'lumping'

By Javier Uribe

When I glanced at the title of the book I inferred its purpose, proving that we as a society do not sue as much as others and I have been informed. Obtaining the power to sue is my purpose for going to law school; I was intrigued from the beginning. The section that covered this theory of why we do not sue is chapter three; this is because it contains the theory of why we “lump” or why we don’t seek any sort of damages from people who have wronged us. In this paper we are going to be discussing how this theory of “lumping” has changed my view of our society being an overly litigious one to a society that is complacent with injuries and endures them instead of seeking redress.

It is crucial for us to better understand the chapter that we look at what the definition of “lumping” is; the book gives us a dictionary definition, “to put up with; resign oneself to; accept and endure” (pg. 20).  This definition fit into legal action means that one who has a valid claim absorbs the wrong rather than bringing any action against the person who has caused them that harm. Engel when referring to bringing any action against those that cause you harm does not just refer to legal suits but that the injured never makes a phone call or use a third party to seek damages. Engel states, “The injury victims who lump make no determined effort to shift any injury costs to the injurers or hold the injurers responsible for the harm” (pg. 21). Instead the injured rely on themselves with whatever resources they can muster, whether it be financial, psychological, or spiritual. This act of “lumping” goes against the boasted morals of our society; we learn from an early age that if someone brings harm to you that they need to “make it right” or be punished in some form to redress the harm that they cause you. “Lumping” seemingly goes against our values, so it was hard to believe that “lumping” is the most common response to physical injury (pg. 22). It is so common that the lumping rate is 78 percent among the moderate injury victims and 65 percent with those who suffered severe injury; this information about the severely injured shows us that even those who might be debilitated from their injury and crucially need assistance still predominantly “lump” instead of acting (pg. 24).

Now that we understand what “lumping” is and that it is by far the majority option, we must look at why we “lump.” “Lumping” of severe injuries occurred the least in automobile accidents and over half, even if not pressing a claim, hired a lawyer for consultancies. Engel raises the theory that automobiles are a special circumstance; this is because getting the police or insurances involved is a routine action, and making a claim by the injured requires less effort than in other situations. Automobile accidents are a special situation from the “lumping” standpoint because the process for seeking a claim from the incident is relatively routine and easy. If you counter this with the other study Engel provided, involving actionable medical suits, or in other words law suits that had high chances for recovery, only 4 percent even hired lawyers. Why would those who have a high chance for recovery from medical damages not choose to sue, but those involved in automobile accidents are inclined to? This question can be solved with the figure 2.1 created by Felstiner, Abel, and Sarat; it is a flow chart that has four steps that must be reached in order for a claim to finally be filed by an injured person. The first step in the sequence is “unperceived injurious experiences”; some injuries that may develop later are never know or perceived as injuries because victims are unaware of them. Victims may “lump” these injuries without even knowing they are doing so (pg. 31). The second step in the sequence is “naming”; injury victims may eventually realize that there is an injury and name the person who caused them the harm. This doesn’t mean that the injured blames the person; they just know of a cause between their injury and the person who caused it. The third step is “blaming”; in this step the person names the injurer and puts blame on them for their injury, but as Engel states, most people still end up not doing anything about their injury. This takes us to our last stage, “claiming”; this stage is the opposite of “lumping” as the injured is not going to accept the harm against them. Instead they are looking for compensation for the injury by themselves or by using legal counsel such as a lawyer. Engel states that at each stage in the flow chart there is a high possibility that the person will drop out and “lump” their injury. This is because as you progress down the chart there are many factors such as realizing it wasn’t that big a deal or that you don’t think you can win compensation that will stop the injurer from trying to seek damages as it is easier just to “lump” and forget about the incident altogether.

This information in the book has changed my thinking about the civil dispute resolution system in the United States by showing that people need to be more litigious and try to seek damages from those who have caused them harm. I, before the book, thought that as Americans we sue for anything, a hot cup of coffee, name calling on the train, or accidentally bumping into someone too hard. But from reading Engel’s book I have learned that is just not the case. His book has showed me that we as a society need to recognize when we have been injured and that we need to follow through on those injuries. I understand why “lumping” is the most common choice; at each step you have to push through the want to just forget about the incident and continue your pursuit of recovery. I, after reading the book, looked back into my life and realized that I “lump” daily, which is a part of life; you cannot be going to court for every little thing, but there are times when the injury is of importance and you owe it to yourself to see the recovery for the damages through to the end. 

If I could reform the tort system in the U.S. it would be more tailored after the system in New Zealand. I choose this model because they have set damages for injures and thus make it easier for recovery. Engel shows us that people drop out of claims because it is a long process and it is easier to forget about the situation altogether. If we had a system that had set damages for injures and we could make the process as simple as filling out a form, then more people would be inclined to seek retribution for their injuries. This system may occasion the problems like those in New Zealand, such as some people not getting “enough money,” but that is not our main concern, as right now in the United States people are recovering no money and just “lumping.” We, after this change of system, might not have million-dollar lawsuits, but the whole of society will be able to recover their damages with relative ease and quickness. This change I believe will provide for a more smooth-running legal system and avoid the problem of “lumping”; we as a society should not tolerate “lumping” because it allows those who cause injury to not be held accountable for their actions.

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