Do Americans really sue at the drop of a hat for personal injury? Do we live in a hopelessly “litigious society”? Most lawyers (myself included) have unthinkingly uttered this latter phrase, and I certainly have grown accustomed to hearing such declarations – and taking them for granted as true.
Professor David M. Engel, who teaches torts at the University of Buffalo School of Law, will have none of it. In his excellent new book, The Myth of the Litigious Society: Why We Don’t Sue (Univ. of Chicago Press 2016), he seeks to refute the proposition that we live in a litigious society. Engel cites studies that show that the vast majority of personal injury victims in fact “lump” their injuries and make no claim whatsoever. The small number of victims who do consult a lawyer, meanwhile, in fact do not file complaints.
But why is this so? Engel draws on research from several disciplines to theorize why most injury victims, even those with plainly cognizable causes of action, fail to seek redress. He insists at the outset that many injury victims are not thinking logically in the first place, and the idea that logical explanations for restraint are the source of the answer is mistaken. One must consider, instead, the effects of the subconscious on such decision-making.
And powerful societal forces affect that thinking. The tort reform movement of the last few years, for example, has encouraged people to automatically think of tort claimers as being of questionable character and lacking in personal responsibility. In addition, it is not always apparent to the layperson that one’s injury has been inflicted upon him or her – that is, caused, by another via some culpable act or omission. Also, many injured individuals may not conceive of their injuries as being injuries in the first place. Meanwhile, studies show that family, friends, and co-workers often dissuade victims from pursuing injury claims.
It is notable Professor Engel’s book is about tort. Indeed, he states in the initial chapter that an individual’s mere acceptance of voluntarily-paid workers’ compensation insurance benefits is not the type of “claiming” that he is writing about. Instead, claiming involves the injured individual taking some sort of initiative and prosecuting an action.
Of course, Professor Engel might well have considered the contested workers’ compensation claim. Here is a situation which does, indeed, involve the injured worker’s initiative and (usually) the retaining of a lawyer. The issue then would become: why do so many workers not pursue their workers’ compensation denials?
And, as a matter of fact, Engel’s analysis of the tort situation translates into the workers’ compensation sphere. Most of the factors that he identifies as leading to the self-repression of claims are present in our field as well. That makes The Myth of the Litigious Society an excellent book for the workers’ compensation lawyer or judge. One will find enlightenment on this issue on every page. The book is also a joy to read – Professor Engel tells a good story – and flawlessly edited. Meanwhile, at 232 pages the book is accessible, and I was able to read it through twice and was pleased at my time expenditure.
I’ll never hear, “our litigious society,” the same way again.