'Why doesn’t the dog bark?'

By John Mullen

The commonly held belief that Americans are litigation happy has been indoctrinated in the minds of Americans and the world through an agenda pushed by corporations, the media, and the legal system itself. In The Myth of the Litigious Society, David Engel not only sets the record straight, that injured Americans seldom assert claims or involve the law, but answers the question of why that is the case. Engel’s argument, while admitting that both factors play a role, goes much deeper then chalking up the infrequency of injury claims to an “economic explanation” or a “cultural explanation” (p. 15-17). Engel’s assertion is that the overwhelmingly majority of people who are injured choose to “lump” their injuries, rather than “claim” them, and that this choice is influenced by the physical, cultural, and social contexts of their injuries. Engel defines “claiming” as “any effort by an injury victim to force the injurer to provide a remedy” (p. 21), and defines “lumping” as the complete opposite, where victims rely on resources such as insurance, government benefits or simply their own means.

In his effort to answer why approximately nine out of ten Americans choose to not assert their injury claims or involve the law at all (p. 22), Engel begins his investigation at a logical starting point: the experience of the injury itself (p. 37). The assumption is that injury victims make decisions in a rational or calculated fashion. However, as Engel points out, this is simply not the case. Injury victims, especially those with serious, life-altering injuries, rarely think or behave in a rational way. Life as they knew it has changed. This change is not only limited to physical change, but also includes drastic emotional change, change in self-perception, and in social interaction. As Engel writes, this change manifests itself in various ways such as social isolation, an inability to coherently articulate the feeling of pain and suffering, and self-blame.

Before reading Engel, I would have answered the question of “why don’t injured Americans claim their injuries?” with an economic answer and a lack of knowledge on the part of the injured victim. Although I do believe these reasons factor somewhat, I believe that a large portion of the explanation for the question Engel sets out to answer was that Americans do not believe that the legal system will be able to provide them with the relief they need. And therefore, seeking a lawyer and then initiating a lawsuit would be a waste of time, money, and effort. I also believe that most Americans do not have the knowledge of how the legal system works, and therefore may believe that they do not have a viable claim, which may deter them from even seeking a lawyer. Engel’s research and explanation on the irrational decision-making process of injured victims was something that I had not previously considered. After reading his book, I firmly believe that the ideas of isolation, self-blame, and the inability to properly articulate the pain and suffering an injured victim feels is a crucial point in understanding why injured victims “lump” their claims.

After understanding the changes an injury victim undergoes, combined with the feelings of isolation and blame, it is easier to grasp why victims choose to lump their injuries. Injury victims may feel that any pursuit of claiming their injury would be a burden on their friends and family. The pain and suffering of an injury can result in states of confusion, depression, or anxiety, all of which may leave an injured victim with little drive to claim their injury. The self-blame aspect of injuries plays into a societal and cultural idea that people should be responsible for their action. While a rational person would hold the person who caused the injury responsible, an irrational thought process, combined with self-blame, forces the injured victim to “lump” their claim. They believe that they were the cause of the injury, and therefore they choose to handle the injury with their own resources. Engel proposes a new model of injury perception and response (figure 5.3, p. 70) and goes on to discuss other aspects of this model such as outside influences, environment, and causality later in the book, but acknowledging and accepting the irrational decision-making process of injury victims is vitally important, as it may be the controlling factor in why they “choose” to “lump” their injuries.

In a perfect society, injuries would never occur, and in a perfect tort system, every injured victim would be made whole, as if the injury never occurred. Obviously, a perfect society and a perfect tort system are not possible. I believe the first and most important step for feasible tort reform, one that would bring the United States tort system closer to its objective of making injured parties whole, is the doing away with the misinformation of an overly litigious society. The negative image and portrayal of injury victims in American society is one of the hurdles to shifting the societal perception of tort cases. The idea that every injury claim is frivolous impacts the way Americans view those who bring claims and is a large deterrent for those who choose not to. A change in the tort system will only be possible with a cultural shift. As Engel writes in chapter 7 (p. 120), an injury victim’s campaign to hold automobile manufacturers responsible launched a massive shift. The campaign resulted in sponsorship from senators and an eventual bill passed by Congress for the installation of better safety devices in automobiles. The change needs to start with the injury victims themselves. Until a cultural shift on the public opinion of injury lawsuits occurs, there is no incentive for change on the part of corporations, the media, or the legal system. Injury victims need to choose to claim their injuries and hold the injurers responsible. The ideas and beliefs of many Americans are so rooted that a change in the tort system may take years or decades to fully come to fruition; but in the current age of protests and fighting for individual rights, this societal and cultural shift is a feasible opportunity for change.