Published January 4, 2017
Think the United States is lawsuit-happy? Think again. A new book by law school faculty member David Engel debunks the commonly held belief that injured Americans have their attorney on speed-dial.
In “The Myth of the Litigious Society: Why We Don’t Sue” (University of Chicago Press), Engel explores the reasons most injury victims don’t seek redress for their suffering, instead relying on their own resources, family and friends, and government programs.
“We’ve known for a long time that more than 90 percent of all injured people ‘lump’ their losses, even when there’s good reason to think the law is on their side. These people make no claim against their injurer or the injurer’s insurance company,” says Engel, SUNY Distinguished Service Professor. “Approximately 4 percent hire lawyers and only 2 or 3 percent of all injury victims end up bringing a tort action.
“We like to say that America is an exceptionally litigious society, and maybe that’s the reason we haven’t asked why the vast majority of our citizens actually avoid claiming when they could present a case,” he says. “What are the social and legal consequences of our tendency to avoid using tort law, even when we’re harmed by someone else’s negligence?
“In my book, I don’t argue that our society would be better if we had a lot more tort litigation,” he says. “This is not a brief in favor of more lawsuits. But I do think we need to get our facts right if we are going to make sound policy, deter negligent behavior, control dangerous and defective products, and provide adequate support for injury victims and their families.”
Engel’s book, written for a popular audience and drawing on research from fields as diverse as anthropology, cognitive science, rehab medicine and anesthesiology, puts forth three main reasons for the reticence of injury victims to make claims for compensation from their injurers:
In the book, Engel argues for an evidence-based approach to the problem of injury in American society. Tort law has its place in reducing risk and compensating victims, but it should be considered in relation to other policy choices. Most importantly, he says, sound policy can emerge only when we understand more accurately how injuries really affect individual lives and how people actually cope with the sometimes devastating losses they suffer. Vilifying injury victims as they struggle with difficult circumstances is not helpful.
“I think we need a reverse culture shift,” he says, “a more honest understanding of what the problem is and what role the law really plays. If we want to find the right answers, we have to start by asking the right questions. I hope this book will persuade readers that there is already quite a bit of data shedding light on the problem of injury in American society. This would be a good time for lawyers and policymakers to take a closer look at it.”