Thursday, May 3, 2018

Why didn’t the dog bark?

By Teresa Marie

This is the initial question proposed in Professor Engel’s book, “The Myth of the Litigious Society: Why we Don’t Sue.” It is based on a Sherlock Holmes story, “Silver Blaze,” in which Holmes notices and demands an answer as to why a dog living at the site of a homicide did not bark and was oddly silent. Immediately, I interpreted that as maybe the dog knew the perpetrator who committed the homicide.

As Engel points out, America is viewed as an overly litigious society, believed to sue for every little thing. However, research shows that is not the case. Engel quotes from the National Safety Council (NSC) that “over 38 million Americans are seriously injured in a single year and almost 127,200 are killed.” (Ch. 1 ¶ 8.) However, nine out of every ten injury victim asserts no claim against their injurer. (Ch. 1 ¶ 9.)
So why is this? My interpretation of the question, “Why didn’t the dog bark?,” made me think, if this analogy is of the dog being the injured person and the perpetrator is the injurer, then it makes sense as to why so many people do not seek litigation for injury. How many people would sue someone they were close to and knew (i.e., a cousin or a neighbor). Would it not be better to settle the injury issue outside of a court room?

Engel explores two reasons why individuals do not litigate. First, most victims do not bring claims because of the cost to litigate, known as the economic explanation. (Ch. 1 ¶ 31.) Second is what is known as the cultural explanation, focusing on cultural norms and practices when it comes to being injured. (Ch. 1 ¶ 21.)
Chapter 5 of the book focuses on the social and cultural environment of injuries. Culture is not static; what is influential and positive in one part of the world might be frowned upon in another. This is something that is important to take note of when looking at the social and cultural influences on whether individuals litigate. Engel takes the dictionary definition of injury, “an act that damages or hurts,” and breaks it down to explain it as the idea of pain, but that is not a constant for everyone. (Ch. 5 ¶ 6.)
I found this to be interesting: humans actually construct what is considered to be harmful; each definition and distinction is different across continents. As society becomes more integrated with cultural diversity, trying to find a set criterion for what is harmful becomes even more intricate and hard to do.
Engel breaks this down into further understanding of pain and its contribution to harm. However, pain is also an individualistic measure. Engel elaborates on pain with the example of feet binding in the Chinese culture, and that it was believed that the pain a woman endured at such a young age would ensure her happiness in the future. So there was pain, but was there any harm or injury as a result? In today’s society, the most likely answer would be yes, but during that era, the answer would have been no. Comparable in today’s society is piercing a baby’s ears. Yes, there is pain, but is there harm or injury? One would argue no, because having pierced ears is a social norm and considered a body modification that increases beauty, just like feet binding was in past Chinese cultures.
Lumping is a societal practice where an injured individual with some valid legal claim chooses to ignore the wrong rather than take action against the other party, but it is not just about legal recourse. Engel looks at it as the victim not confronting the injurer in any significant way to seek compensation, remedy, or responsibility from the injurer. (Ch. 2 ¶ 2.) Claiming is where an injured individual does seek remedies for their injury from the injurer. (Ch. 2 ¶ 3.)      

Lumping plays a role in the cultural and societal construct of harm because some social and cultural groups find it wrong to claim. Engel co-wrote another book looking into the ethnographic studies of American law and culture in three communities in New England, the Southeast, and the Midwest. The authors found that residents in those areas viewed the act of claiming as aggressive, antisocial and “uncultured.”

This falls in with my original thoughts on what the meaning behind the “why didn’t the dog bark” question. My example would be, say you are injured by your neighbor, your families have been living in the same houses for decades, passed down from generations. Claiming an action against your neighbor would not only cause tension between you and your neighbor but any other parties who have been in that neighborhood for generations.

The research from the ethnographic studies found that people in these areas thought the filing of a claim by the injured individual seeking compensation from the injurer was at the cost of the community. While claiming is the right given to individuals by law, social and cultural surroundings does not encourage the practice. Engel elaborates that the very opposite is the situation. Members of communities feel that claiming is considered selfish and socially destructive.

Societal and cultural influences by others are a large portion of why people choose to lump rather than to claim. These influences can be for biblical/religious, machismo, lower socio-economic reasons, or even generational reasons.

Engel ends the book discussing how as a society our question usually revolves around why Americans are so litigious versus the real question of why so many injured Americans choose not to litigate.  Engel focuses on why lumping is so common, some work arounds, and a cultural shift.

Trying to develop a cohesive tort system that has a definition of harm, injury, and pain and that works for all cultures and societal groups is practically impossible. However, if I had a magic wand to wave that could implement and fix this issue, I would first work on creating and managing a statute that covered the basis needed to allow comprehensible tort claims for harm and injuries caused by others. I would remove the negative stigma from the idea of claiming vs. lumping. Informing the general body that claiming is not a negative action but positive, holding people accountable for their actions, making sure that it is understood when someone is injured that the injuring party has to compensate them for whatever percentage they are liable for, and that it is not detrimental to the community but actually beneficial. I would believe that it would lead to more people being careful of their actions if they knew that, if in fact their action injured someone, they would be held liable, no matter how small of a percentage would deter certain behaviors.

Unfortunately, our current litigation system is seen as a joke, and sometimes it can take years to be compensated for an injury, by which time the plaintiff already has covered all of their bills. So why should they waste their time and energy litigating when they have to worry about bills and recovery if the injury is so severe? Working toward a system in which compensation is swift and proper I think would be one way I would waive my magic wand to help tort reform.

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