David Engel on the Myth Of the Litigious Society

We live in a litigious society.

Over recent decades, that’s what we’ve heard from the business press and the mainstream media as a whole. 

One problem – it’s not true.

David Engel actually wrote a book about it titled – The Myth of the Litigious Society: Why We Don’t Sue (University of Chicago Press, 2016).

Engel taught tort law for 40 years at the SUNY Buffalo School of Law before retiring a couple of years ago.

You say that a very low percentage of injured people sue. What is that percentage?

“There have been a number of studies now that look at what people do when they are injured,” Engel told Corporate Crime Reporter in an interview last month. “The numbers are pretty consistent.” 

“The classic study is by Deborah Hensler at the Rand Corporation. She looked at people who just suffered accidents, not people who necessarily feel they have a grievance against anybody. She found that 90 percent of them take no action whatsoever.”

“Of the remaining ten percent, only about four percent will consult an attorney and about two percent will actually end up filing a lawsuit.”

“Those studies have been replicated a number of times in the United States, but also in other countries. And the numbers vary a little bit, but not significantly.”

“The numbers look a little different when the researcher begins with grievance. They ask people – do you have a dispute with somebody? Then the number of people who file a lawsuit will be slightly higher.” 

“But the overall picture is that we are not a litigious society. We are not that different from other societies when it comes to use of tort law in particular. And the vast majority of people don’t go to lawyers and don’t file lawsuits.”

Of the injured people who don’t consult a lawyer, is there any breakdown on what percentage of the cases are just accidents with no negligence involved?

“The ideal study would be to look at only people who had meritorious tort claims about somebody else and ask what they did about those claims. But when you think about it, tort law tries to decide which cases are meritorious and which cases are not.”

“Accidents don’t appear in nature labeled as meritorious or non meritorious. In fact, some accidents at first blush don’t even appear to involve another actor who might be called negligent. A lawyer might reconstruct those facts and determine it is a tort action.”

If it is true that we are not a litigious society, why do most people believe that we are a litigious society?

“There are two different ways that our culture views people who use the law. One view is the tort litigant as a heroic figure taking on the big corporation and vindicating people’s rights. And the other image is one of people whining and complaining and getting something for nothing and taking advantage of the law for their own selfish purposes.”

“Why did the second image become so dominant in our culture? Many people have said it’s the result of a deliberate publicity campaign in the 1980s and 1990s led by so-called tort reformers. They were funded by the corporations who are most usually being sued in tort actions.” 

“They put forth the notion that tort law was out of control, it was driving the costs of products and services, it made insurance more expensive and if we could reduce the role of tort law in our society, everybody would be better off.”

“The weapon that was most effectively used by the tort reform movement at the time was the McDonald’s coffee case. It became an emblem of the unworthy plaintiff ripping off the system. There have been a number of studies about that case in particular, showing how the facts were completely distorted.” 

“And yet it was used and recirculated through the media and television. The case had a very long life and it was extremely effective in achieving a cultural shift. People became convinced that we are a litigious society, supposedly the most litigious people on earth.”

“If you speak with personal injury lawyers, they will tell you that when potential jurors are called in, they all tend to have this assumption – that we are a litigious society and that the use of tort law is out of control. Anecdotally, the evidence is overwhelming that this is the view that prevails in our society.” If trial lawyers are doing such good work, why do they have such a poor reputation?

“A number of reasons. One is, they are representing injured people who sue. And they have been vilified by the tort reform movement.” 

“A second thing is that the way tort law operates, it translates injuries into dollars. And the fact that people are getting money in exchange for discussing their misfortune, that seems to create suspicion in the public.” 

“A third thing is that when lawyer advertising became legal in this country, many personal injury lawyers became aware of this 90 percent of the population who did nothing when they were injured. Advertising was a way of reaching out to that 90 percent and making them aware that they could go and see a lawyer, a lawyer wouldn’t charge them up front because of the contingent fee system.” 

“And some of the advertising that they did was unattractive. It presented an image of lawyers that fed into the idea that they were self interested, greedy, money hungry people trying to exploit people who had suffered injuries.” 

Trial lawyers are in the one percent of income earners in our population. They tend to be wealthy. They could spend some of that money to counter the corporate campaigns against the tort system. If they are doing that, it’s not effective. They are losing the public relations battle, wouldn’t you say?

“Absolutely. In my book, I look at the various reasons why people don’t sue. And I keep coming back to the cultural shift that occurred at the end of the 20th century. If an anti-tort culture can be constructed, it can be deconstructed. The most effective thing we could do as you are suggesting would be to launch a different kind of public relations campaign that shows that tort law does have a beneficial side and in fact plays an essential role in our society.”

Why do so few injured people seek justice through the tort system?

“That’s the question that fascinates me. The fact that we are not a litigious society is kind of old news. The question that has not been addressed is why? Why is it that when people suffer injuries, sometimes serious injuries, only a small handful think of using the law and go to see a lawyer. And fewer bring a lawsuit.”

“My book tries to identify some of the reasons for the inactions of injured people.”

“There are four that seem especially significant.” 

“One is the fact that injured people are debilitated. It prevents people from thinking clearly, from getting up and taking action. They are often in pain. It affects people’s ability to think and speak. It affects them socially. And many of them are on pain medication, which fogs their thinking and saps their energy.”

“A second reason is that injuries come to be normalized. When an injury occurs, if it is not viewed as a result of something wrongful, if it is just seen as part of life, or something that is natural to a product, then folks would never think of framing themselves as an injury victim, somebody who could bring a claim in court against somebody else.” 

“One example I use is the rear view camera in an automobile. Everybody assumed that when several hundred children each year were killed or injured by automobiles backing up, sometimes in their own driveways, that that is just how automobiles were – they have blind spots. It’s unfortunate, but you just have to watch your kids more carefully to keep them from being injured.” 

“Then came a doctor who had tragically killed his own child by backing up. And he successfully campaigned for rear view cameras in every car. Congress was persuaded. And nowadays we don’t think of those injuries and deaths as a normal risk associated with a car. We think of it as something preventable. And a vehicle that doesn’t have that safety feature is seen as unacceptable.” 

“Normalization of risks is a second reason why people who are injured might not think to bring a claim.”

“A third reason is causation. Many illnesses or injuries result from actions we just don’t know about – like chemical dumps or toxic leaks. People get sick but they don’t know what the cause is. In their mind, there is nobody out there to blame.” 

“Even though something might legally be the cause of an injury, the way people think about causation is just as likely to be bad luck, fate, God’s will, part of the divine plan, karma. That kind of thinking is quite common among Americans. And when they conclude that the cause of their injury was part of a divine plan, it doesn’t make sense for them to hold somebody else responsible for it. It might even be sinful for them to do so because they would be violating a higher purpose that caused them to suffer harm.” 

“That kind of view is common enough in the United States that you see some trial lawyers, when the potential jurors are called, they specifically try to weed out jurors who hold that view because they would be so unsympathetic to a plaintiff who brought an injury case.”

“Another one is self-blame. We know that there is a psychological tendency to look at someone who is injured or ill or disabled and to blame them for their own misfortune. But what has been stunning to me is the discovery that the individuals themselves who have been injured tend to blame themselves for what happened.”

“For some, that’s also related to religious belief – that pain is punishment – they are injured because of sins they committed. But it doesn’t have to be religious in nature. Even for people who are not especially religious, there is a tendency that when one is injured or in pain to think – well, if I had just been a little more careful, or if I looked after my child just a little bit better, then I could have avoided this injury.” 

“And when people blame themselves, they think that is the end of the story. If they are to blame, then it would be completely wrong to hold somebody else responsible. That’s not tort law. Tort law would say – the plaintiff who is partially responsible is still entitled to a partial recovery. But that’s not how ordinary people think about things. If they blame themselves, that tends to be the end of the road when it comes to the possibility of bringing a claim.”

“And then the last reason I could mention now is the culture – cultural norms that tend to denigrate injury claims. That culture is a deliberate construct from 30 to 40 years ago. It tends to be a strong barrier against people bringing claims or approaching a lawyer. They have bought into the view that it’s wrong to do so, that it violates their own normative system.”

“But also, the highest priority for many people is the desire to belong. They want to belong in a particular group. And if they violate the norms of that group, they will be exiled from it. When you assume, probably correctly, that most of the social groups you belong to share the anti-tort law perspective, then if you were to consider bringing a lawsuit yourself, it would mean exile from those groups. And since the motive to belong is more powerful than the motive for justice in many people’s minds, that is also a strong deterrent against bringing a claim or approaching a lawyer. And in my research, I came across that view a number of times. People who were injured said – I just couldn’t do it. I would be a pariah in my community, I would lose my friends if I ever went to see a lawyer.”

[For the complete q/a format Interview with David Engel, see 37 Corporate Crime Reporter 43(12), November 6, 2023, print edition only.]

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