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David Engel’s recent book, The Myth of the Litigious Society, has its roots in a piece published over two decades ago, by UCLA’s Richard Abel. In that piece, Abel challenged conventional wisdom by declaring that the “real tort crisis” is an epidemic, not of overclaiming, but rather, the opposite. The tort system’s greatest defect, Abel asserted, is not its whimsical unpredictability or its excessive generosity. To the contrary, the tort system’s biggest shortcoming is that too few accident victims choose to enter the system at all.

In the years since Abel’s writing, numerous researchers have examined this underclaiming idea, from a variety of perspectives.

Empiricists have gotten into the act. Using a number of methodologies, these researchers have, again and again, confirmed Abel’s basic empirical premise. In most areas of the tort law ecosystem, only a small fraction of Americans seek compensation, even following negligently inflicted injury. So, for example, out of every one hundred Americans genuinely hurt by bona fide medical negligence, only two or three will ever attempt to claim compensation—and, of those, some will inevitably fall short.

Socio-legal scholars, meanwhile, have asked, not whether pervasive underclaiming characterizes our tort landscape—but instead, why popular perception is so at odds with reality. Why, in other words, do we fret about a “litigation explosion” and bemoan Americans’ “Sue-icidal Impulse” if, in fact, Abel is right?

This effort, too, has borne fruit. Most notably, William Haltom and Michael McCann’s excellent Distorting the Law: Politics, Media, and the Litigation Crisis (2004) attributes our warped perspective to the asymmetric visibility of claims that are, and are not, filed. When injury victims suffer in silence, without initiating claims, “compensation or atonement foregone is almost always a very private decision,” Haltom and McCann observe. On the other hand, “[s]ecuring a lawyer or filing suit is a … public action, about which the press and reformers are even more likely to hear.”

Still, despite all this valuable study, few researchers have asked what is, in some ways, a preliminary and more fundamental question: Why is the missing plaintiff AWOL in the first place? Why, that is, is “lumping it” the most common response, following even tortiously inflicted injury? It is this question David Engel tackles, in this readable, engaging, and important work.

Early on, Engel addresses—and partly rejects—two obvious culprits. First, he raises the possibility that victims forebear for economic reasons; victims recognize that the cost of claiming exceeds its benefits. (P. 15.) Engel, however, dismisses this “economic explanation” as doubtful as an empirical matter (given the widespread use of the contingency fee and most lawyers’ willingness to absorb costs when claims are unsuccessful), and he also notes that it assumes that most would-be plaintiffs are rational actors, which is, for several reasons, dubious.1 A second explanation is what Engel dubs the “cultural explanation”: victims don’t assert claims because culture “leads people to forgo claims they might otherwise assert.” (P. 16.) But while culture surely has something to do with it, Engel notes (rightly, I think), that blaming victims’ failure to claim on a cultural hostility to claiming is circular and ultimately unsatisfying.

What else explains victims’ observed behavior? A big problem stunting claim initiation is the problem of attribution—a problem that comes in two steps.2 At step one, many victims don’t realize that they are injured. This is particularly true when victims are exposed to toxic substances (e.g., cigarettes, asbestos, DES, lead, and the like), where, often, years elapse between exposure and the ultimate manifestation of injury. Then, at step two, even if a victim realizes she’s hurt, she may not realize that the injury was tortiously inflicted. Smokers may not realize that their cancer comes from cigarettes, a child dismissed as “slow” may not realize her trouble is traceable to chipped paint, and a DES daughter may not realize that her baby’s preterm delivery comes from her mom’s ingestion of a morning sickness drug, decades before. Indeed, medical malpractice victims are notorious in this regard, as most patients seek care because they are sick and it’s common for sick people’s health to deteriorate further—so those injuries stemming from medical mistakes are hard to identify, and, even if identified, will almost inevitably have competing causes, making it difficult for victims to draw the causal arrow with anything approaching certainty, even in their own minds.

Beyond that, as Engel points out, even when victims have the information they need to make sensible choices, many victims aren’t in a position to think sensibly. Often suffering from depression, disorientation, and anxiety—and sometimes overcome by guilt and self-blame—for some injury victims, “[d]ecisive action and follow-through may seem nearly impossible.” (P. 43.)

Finally, even if an injury victim navigates the various hurdles above and decides to claim, she still has to overcome several structural impediments to make that desire a reality. Most notably, she has to know how to find a decent lawyer—and as I’ve written at length, that is much easier said than done. Then, she has to convince the lawyer to take her case. And, that’s tough—as the majority of lawyers reject the vast majority of would-be claimants who come calling.3 Last but not least, the would-be claimant has to do all the above within a short period, lest the statute of limitations expire.

Stepping back, Engel’s investigation into the AWOL plaintiff makes a significant contribution. In explaining why more victims fail to enter the tort system, Engel illuminates various aspects of the system, and he does so with compassion and clarity. That said, the part of the book titled “Mystery Solved: Why Lumping It Is So Common,” to my mind, comes too soon.

By his own reckoning, Engel strives to understand “not the two-dimensional characters of social and legal theorists but the flesh-and-blood humans who suffer the pain and trauma of physical harm.” (P. 171.) In many respects, he does that, admirably. Yet, as Engel examines victims’ real-world experiences, he neglects to examine the flesh-and-blood experiences of that small cohort of victims who, Indiana Jones-like, dodge the above obstacles. My guess is, a careful examination of these claimants’ experiences would also shed light on the mystery—and would, in fact, enrich and complicate the “economic explanation” dismissed (in my view, somewhat prematurely) above.

In particular, if we looked into it, I bet we’d find that the process of claim initiation and litigation—with its probing, and sometimes humiliating, discovery into the most private facets of one’s life; its prolonged uncertainty; and its insistent demand that a claimant relive, repeatedly, publicly, and under oath, what she saw, thought, heard, and felt, on what may have been the most searing day of her life—is brutal. The act of claiming, for some, may be cathartic and empowering. But for at least some others, it stands to be positively dreadful—effectively inflicting a second serious injury.

If I’m right, this has a pair of provocative consequences. First, it means that, though it’s only partly susceptible to quantification, for many injury victims, the cost of claiming is large—and bigger than we typically think. This in turn means that, in weighing the cost and benefit of claiming and ultimately choosing to lump it, many injury victims may be behaving quite rationally. Second, and more hopefully, it means that claiming patterns aren’t necessarily set in stone. If we want to encourage claim initiation, one lever we could pull is to make the claiming process less onerous. If the cost of claiming (broadly construed) comes down (perhaps by making procedures less antagonistic, intrusive, and adversarial), more injury victims may come forward.

In sum, as we follow the clues in an attempt to solve the mystery of the missing plaintiff, I suggest there’s another place we might profitably look. And though Engel’s study ends, to my mind, before the riddle is solved, his admirable effort might be just what is needed to galvanize another scholar to pick up the torch and continue the inquiry.

  1. As Engel explains: “In hundreds of studies across many disciplines—cognitive science, behavioral economics, and psychology, to name a few—one finds very little support for the view that people engage in conscious deliberation and rational choice in the aftermath of traumatic injury.” (P. 16.) []
  2. William L.F. Felstiner, Richard L. Abel, and Austin Sarat famously discussed the challenge of attribution—albeit while using different terminology and without limiting their analysis to tort claims— in their classic work, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 Law & Soc’y 631 (1980). []
  3. Importantly, while prospective claimants are often turned down because their cases seem legally dubious, lawyers sometimes reject even those whose claims have legal merit. These meritorious claims may be rejected because of insufficient damages (which would translate into an inadequate fee), client characteristics (particularly if the client seems too demanding or difficult), or a mismatch between the client’s claim type and the lawyer’s particular specialty. []
Cite as: Nora Freeman Engstrom, ISO the Missing Plaintiff, JOTWELL (April 12, 2017) (reviewing David M. Engel, The Myth of the Litigious Society: Why We Don't Sue (2016)),