The Pains of Justice: David M. Engel on Why Americans Don’t Sue

February 27, 2017

Americans have a stereotype of being somewhat lawsuit-happy. Any disagreements, no matter how small, wind up in court and we will sue the pants off our neighbors at the slightest scrape or bump. David M. Engel, author and law professor at University at Buffalo, objects.

His newest book is The Myth of the Litigious Society: Why We Don’t Sue, where he explains that contrary to popular belief, most American injury victims never so much as contact a lawyer, let alone file a claim. Engel lays out the reasons that Americans rarely sue and why it is that we think we do anyway. He believes that understanding the realities of the American legal system is the first step toward answering questions about what we should do about injuries and restitution as a society to prevent and mitigate pain and suffering.

Welcome to Point of Inquiry, a production of the Center for Inquiry. I’m your host, Lindsay Beyerstein, and my guest today is law professor David Àngel, author of the new book The Myth of a Litigious Society. 

The stereotype is that Americans are crazed litigators who sue each other at the drop of a hat. But the data don’t bear out that generalization. In fact, the vast majority of people who are injured and conceivably could sue never even talked to a lawyer about their rights. 

Little on file. A lawsuit has gone to court. David set out answer why this is the case and his answer is a fascinating one that says a lot about the strengths and weaknesses of a justice system that supposedly exists to help people find redress when they’ve been injured. 

David, welcome to the program. 

Well, thank you very much for having me. 

I really enjoyed the book. It’s not every day that you get to read about law and kind of an anniversary in the same book. 

Well, I tried. 

People are always arguing about whether our society is litigious or not. But how do you really go about measuring a meaningful way? How litigious a society is? 

Well, that’s a question that’s not usually addressed. Certainly, we can’t just talk in terms of the total number of lawsuits because you would need to compare the number of cases that are litigated to those that might have been litigated. But we’re not. So in my case, my book is about injuries. You would want to know how many injuries there were that could have been litigated and then how often our lawsuit was actually brought. So it’s difficult to to establish that empirically. But the best studies we have are pretty consistent. And they show that there’s surprisingly Americans are very reticent when it comes to going to see a lawyer after they suffer a serious injury. 

Can you give us a sort of take us through some of that evidence as to how many lawsuits there are and, you know, how how commonly people who’ve been injured actually seek redress in the courts? 

Yes. The if we begin with studies that look at sort of the baseline of total injuries, which is problematic in itself for reasons we can talk about, I think the question of what an injury actually is makes it difficult to count them. But if we look at those that are easiest to count, which are physical harms resulting from accidents the best, that is sort of sudden traumatic kinds of physical injuries. 

So car crashes, slips and falls, that kind of stuff. Right. 

And that’s only a small subset of the kinds of injuries that tort law could actually include. That is, we include other kinds of injuries with with slower onset like exposure to toxic substances that cause illness and that sort of thing. So but there’s the most reliable studies have been of accidental injuries. And the consistent finding is that at least 90 percent of Americans who suffer that kind of injury don’t do anything they don’t make. That is, they don’t make a claim against the other party. 

They don’t contact the other parties, insurance company, and they certainly don’t see a lawyer. Those that see lawyers are like three to four percent of the total number. And lawyers often as often tell them not to proceed as to proceed. So the total number of lawsuits filed are somewhere in the area of two to three percent of total number of injuries of that kind. 

And what’s that work out to in terms of total number of lawsuits in the court U.S. court system at all levels per year in terms of actual lawsuits? 

Well, the numbers are continually changing and there you’d have to distinguish between state courts and federal courts. Most of the litigation takes place in state courts and the total numbers are. In the I’m looking at a table that goes state by state, the most populous states such as California and New York. 

I don’t have those numbers right now. 

That’s OK. Fingers, sorry. That’s all right. We can just move on to a different question. It’s not super important. I would actually just one thing I would ask you about is like there’s a statistic that’s floating around online that there are 15 million lawsuits of which in state courts per year, of which torts are 15 percent. What counts for the other lawsuits, like what is the remainder of this giant iceberg of lawsuits? That’s not torts. 

Well, if you’re talking about civil litigation, the most common type is contracts. Actually, those account for over 60 percent of the litigation in civil litigation. In state courts, torts are actually a smaller percentage than you cited. That’s the latest figures from the Center for State Court suggest they’re about six percent of the total civil cases. 

And a tort is a case where somebody has injured somebody else. 

Yeah, tort is a civil wrong for which the remedy is a action in damages. So as this and it doesn’t grow out of a contractual relation between the parties. 

Oh, I see. So it’s sort of like an objective threshold of wrong. It’s not just a road, because I promised that I would install this air conditioning system for X amount of money. And I don’t it’s a different kind of running that you’re visiting on a person. 

We have the violation of the cultural norm rather than the violation of a preexisting agreement. 

And now you talk a bit about the sort of phenomenon of lumping that it seems like, you know, that overwhelmingly people don’t seek legal redress. Why is that? Why did they opt to lump rather than pursue redress for their injuries? 

Well, that was the question that led me to write the book. So to define lumping, lumping is a term that was developed by scholars to to suggest that a person that could have made a claim against somebody else suffers a loss and could have made a claim against somebody else instead just absorb the costs and the consequences of the injury themselves. So the fact that that’s the default response among most Americans is counterintuitive for most of us. We we tell ourselves that we live in an adversarial society, that Americans are the most litigious people in the world and so on. But it turns out that that most of us prefer lumping rather than claiming and claiming does not necessarily mean asserting a legal claim. Claiming can mean knocking on the other party’s door and telling them to make things right. Making a phone call. All of those are examples of claiming and lumping is the opposite. Lumping as is not doing anything, not confronting the injury. So the question of why Americans prefer lumping by a large margin to claiming is such a counterintuitive question to ask that it really never got posed. There are studies that show that that is in fact the most common response that nobody thought to go up and go ahead and ask why. So I began to poke around and search for answers in as many different kinds of empirical studies as I could find. It took me into a number of different disciplines, including nursing and anesthesiology, as well as anthropology, sociology and so on. 

I was looking for people that studied individuals who had suffered injuries and described how they responded so that I could find clues as to why whomping turned out to be the preferred response. 

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Superficially, it seemed like a very pragmatic thing that people may not know what the law is. They may not know their rights, what it’s those but those kinds of pragmatic explanations leave out in terms of the big picture, why people don’t see seek regress. 

Well, I think you need to go back to an earlier point in the experience of injury. To understand why it is that people prefer not to do anything. And part of the problem is simply the physical effects of an injury are affect people so substantially that they find it difficult to communicate. They find it difficult to think clearly. They’re not really able to weigh the pros and cons of bringing an action against somebody else. And also, a number of studies talk about the social isolation of people who are dealing with the consequences of injuries and folks that are socially isolated and find it difficult to speak and think clearly are not likely to choose to pursue a claim. So some of the discussion in this area assumes that when we’re injured, we make calm, rational cost benefit decisions. Would it be more hassle than it’s worth to go ahead and pursue a claim? Or would the benefits be substantial enough that that I should go ahead and see a lawyer? But that’s not really how people think when they suffer an injury. Their lives are more chaotic and disordered than that. Their thoughts are more confused and their ability to communicate is more troubled. 

So does that mean among the people who do seek redress, they’re not. Are the people who seek redress, seeking for rational reasons, or are they just as disordered and confused and flailing as the people who don’t? 

I think it’s they’re dealing with the consequences and in their own way. I wouldn’t say the result of their decision that the decision to pursue a remedy is the result of confused thinking. 

It’s just that they felt able to go ahead and they were not discouraged by some of the other factors I discuss in my book, such as cultural norms that opposed that opposed litigation and so on. 

Does this have troubling implications for I mean, if this is true, if people’s decisions to sue or not sue are fundamentally non rational and don’t adhere to our sort of normative models for how you should go about pursuing grievances, does that undercut the legitimacy of litigation or undercut the respectability of defendants? 

If it turns out to be true that people aren’t following a approvable, respectable thought process to get to litigation, that they really are just lashing out or giving up? 

Interesting question. But I’m not sure I agree with the premise that we have an idea about what is the proper way to pursue a remedy. I think that’s a contested issue in our society as to whether it’s a good thing or a bad thing to pursue a civil remedy when you suffer an injury. 

But is there kind of a folk folk legal idea that, oh, well, you know, the validity of this whole thing is guarded by it adhering to certain normative standards. And the reason that here is we should take lawsuits seriously is because people are thought carefully about their rights and what they’re owed and come to a sensible decision that they have, in fact, been aggrieved as opposed to what people dismisses frivolous lawsuits. 

I mean, it seems like there is a kind of understanding that people’s legitimacy and their legal disputes is somehow tied to normative thinking, isn’t there? 

Yeah. I mean, we have images that are familiar to us of people that pursue righteous causes and and properly bring a lawsuit to call to account folks that behaved irresponsibly and exposed citizens to risk and that sort of thing. That’s one set of images for sure. But there’s another set of images that says that when we suffer harm, we should be stoic. We should endure. We should not whine or demand that somebody else make good for losses. That we suffer those injuries. Those images are also pretty powerful. And I’m not sure that we that there there’s a sort of stable understanding in our society about what’s the right way to respond to an injury. 

How does religion affect our narratives about the correct way to respond to injuries? 

Well, that was something very interesting that I found. Even apart from religion, that there was a strong tendency reported across many different disciplines for injury victims to blame themselves. And this turned out to be connected to a sort of psychological tendency to assume that if someone suffers misfortune, they must somehow have deserved it. And, you know, there’s a connection, even a connection in terms of the derivation of the terms between pain and punishment. So suffering pain is also a form of punishment in some people’s minds. So that turned out to have a connection to the religious beliefs of some some of the people who are described in these studies. 

So it’s not just Christians. It’s also you study people in Thailand. Right. Who had came from Buddhist background, also had religious based ideas about self blame. 

That’s right. They would articulate it differently. Injuries weren’t a form of punishment for sinful behavior, but they were a result of bad karma, which is the accumulated. I did research in Thailand as well, which is what you’re referring to. And the store of karma you build up over the years through meritorious and non meritorious acts produces consequences in the future. So when people suffered injuries, they would explain that in terms of the karma they had accumulated in this lifetime or even in a previous lifetime. So injuries, yes, there were religious, strong religious dimensions, both in both in this country and in Thailand, where I did research as well. So the people who suffered injuries felt that somehow through self blame, that somehow there they must have fallen short and to blame somebody else for it would not be an appropriate response. In fact, in Thailand, injury victims told me that to blame somebody else and demand a remedy would just create more bad karma and lead to more injuries in the future. 

The intensely negative stereotypes around people who have filed lawsuits in the United States, some of them are endemic in the culture. But there are other organized forces that are actually trying to promote and traffic in stereotypes around around litigants. 

Yes, for sure. The tort reform movement was based on a strategy of culture change. So they were their program. This originated in the 1980s, 1990s in particular. Their program didn’t involve only legal change, but also changes in the ways Americans thought about tort litigation. So in that time, you saw the deliberate propagation of negative stereotypes of people who brought claims. And that was also the time when the McDonald’s hot coffee case was used as a kind of vehicle for stigmatizing people who litigated for what we’re seen as ridiculous reasons. 

Can you give us a little more detail about the hot coffee case? 

Yeah, it was. It’s actually the kind of case that would be a towards professor that would be great to discuss in the classroom, because there are good arguments on both sides. But it was the facts were so distorted in the retelling. And here the media did not do a great job. The facts were so distorted that it sounded like the most ridiculous claim that could be imagined that a woman would still coffee on herself and then sue McDonald’s because it was too hot. But actually, in the facts of the cases, they came out eventually. This was a very elderly woman who was trying to remove the lid from a cup of coffee, and it spilled on her and inflicted incredibly severe burns requiring skin grafts and months of pain for recovery. They learned that McDonald’s had been heating their coffee to a level that exceeded what anybody else was doing, such that contact with the skin would cause immediate burns. 

If you tried to drink it, it would scald your throat as well. Apparently, McDonald’s superheated the coffee because they assume no one would try to drink it immediately. They wanted it to stay hot so that when people got to their home or office, they could they could drink it and it would still be warm. And McDonald’s had been warned a number of times when people had been burned previously, they’d notified McDonald’s and they didn’t change their practices. So the still alive back was the name of the elderly woman who was burned. She wrote a letter to them telling them that she thought they should change their the way they prepared their coffee and asking for some, you know, very small amount of money to help pay her medical bills. And when they refused, they ignored her. Then she went to see a lawyer. The lawyer brought a claim and the jurors were so outraged when they heard the facts that they that they not only awarded her medical costs, but a large punitive damage award to that was what got reported in the papers, the million dollar figure. But it was never assessed against McDonald’s. It was immediately reduced by the trial judge. And then they settled out of court for some fraction of the original award that was never disclosed. So the true facts of the case involved a much more serious injury practices by McDonald’s that were questionable and much smaller damage award than was usually reported. 

Who are the architects of tort reform and what interests do they bring to this discussion? 

Well, it was a group of organizations that were that represented the interests of insurance companies and some manufacturers who were subject to tort litigation. Tobacco manufacturers, for example. And they supported some political candidates who they thought would represent their interests, and they were very sick. 

So these were companies whose products had hurt a lot of people and who had had to pay out a lot in lawsuits, who got together and said, hey, we’re going to change the culture so this doesn’t happen anymore. 

That’s right. And they did a good job. I mean, as a lobbying group, they were very effective. They got legislation passed and almost every state and they produced this kind of cultural transformation that they were aiming for as well. 

What impact does tort reform had in terms of people who are going without needed medical care and stuff like that because they couldn’t redress their problems in court? 

Well, see, I, I would argue that just by the act of lumping, regardless of tort reform, people are experiencing a lot of economic and physical distress. So in other words, I don’t necessarily think that by having alarm a higher percentage of people bringing toward cases that these problems are going to. Solved. 

The book is not an argument in favor of more litigation or less litigation. But just the argument that we need to understand what the phenomena are, what the real facts are, and decide how we want to deal with injuries in our society toward litigation is just one way of trying to reduce injuries and pay compensation to those who need it. There are other ways as well. In some societies, for example, in New Zealand, they’ve completely eliminated tort law and that may work for them as long as they have an active regulatory regime to try to make sure that unsafe behavior is being controlled in some other way. And compensation is provided by the government through a central fund you apply to. So there’s there’s not just one way to do this, but if we’re going to find sensible solutions, we need to begin with the real facts about injuries. 

Definitely. What is your own research suggested about what needs to be done to help people when they’re injured? What what needs to be happening so that they can have a clearer perspective on their own rights and options at the very least? 

Well, I think it’s part of the question goes to injury prevention. And part of it goes to dealing with the after effects of injuries once they’ve occurred. Injury prevention, I think, is something we haven’t really tackled in a very serious way. We do it through to some extent, through tort litigation. But when you think of a small number of people that actually consult lawyers, you can see that that’s not a very systematic way to address the injury problem. We rely on government regulations to some extent. But, you know, we live in a time when regulatory activity is not very popular and in fact, is being cut back, especially under the Trump administration. The question of medical bills is also up in the air right now, since we don’t know whether universal health care is going to be in our future or not. So the effects of injuries can be quite devastating. People who don’t receive compensation in any other way have to rely on government benefits and government benefits, only address some aspects of injuries, out-of-pocket costs and that sort of thing, but not the more long term social and psychological effects of injuries. There’s also aspect to injuries that isn’t usually discussed, which is that the serious injury affects not only the victim herself or himself, but also caretakers, family, spouses, children. And some of the studies that I saw were quite disturbing in that sense. The caretakers of injured spouses have much higher rates of illness themselves. They more prone to cancer. Their mortality rate is higher. They’re much more likely to lose their own jobs as a result of caring for an injured spouse. So the ripple effects of injuries can be really devastating. 

Do you think our society is doing enough to teach people as a matter of civics what their rights are? I mean, it’s funny you learn all these things about how to vote and how bills become laws, but you never learn, know, at least I never did in public school. And I don’t know that anybody else did either. About how do you file a lawsuit? When do you file a lawsuit? What are your rights? 

Yeah, I mean, the educating that’s going on is through, you know, lawyer advertising, which is not usually the best sort of view of law that one could have. So I think that in a way, lawyer advertising helps with the problem of lumping because it reaches out to people who might never have thought that they have a legal remedy before they saw on TV that they that they actually do. But it also plays into the cultural program of those who who opposed tort litigation because it makes lawyers look like used car salesmen and reinforces the idea that people who litigator, unscrupulous and greedy and so on seems like it might be better to tackle it in a dispassionate way when nobody’s case is up for adjudication in consumer law. 

You read consumer ad in in high school and they talked about how you file a complaint with your credit card company. But wouldn’t it be better to have some dispassionate education about what a good what a meritorious claim could and should look like? I kinda recognize it. 

I think that’s right. And I would go further than that. I think, you know, in among tort scholars, they’re pretty clear ideas about what tort law is meant to accomplish. And it’s not only meant to benefit the individual who brings us suit, it’s meant to help society as a whole. It deters unreasonably risky behavior. If you know that you might get food, then you make better decisions about how to make your product, how to perform services and so on. So there’s a real social benefit to a meritorious toward action. But, you know, the conclusion that I’ve reached is that for us to. Assume that if all the negative effects of tort reform could be eliminated and if education could be improve for schoolchildren and other people. Even so, the vast majority of injury victims are going to lump their losses and not do anything. So we we can’t just assume that tort law is going to provide the solution to the injury problem. We have to think of it in connection to all the other to the total ecology of injury and remedy that our society offers. And think about how the parts relate to each other and how we want them to relate to each other. That is, government benefits, regulation, even the use of the criminal law when behavior becomes really egregious. Well, we haven’t had that discussion. We haven’t had that consideration because we’ve been too caught up with the idea that we live in the most litigious society on Earth and that all Americans sue at the drop of a hat. 

David, that’s all the time we have today. Thank you so much for coming on the show. Oh, it was my pleasure. A point of inquiry is a production of the Center for Inquiry, become a member and support the advancement of science and reason by going to center for inquiry dot org slash membership. 

Lindsay Beyerstein

Lindsay Beyerstein

Lindsay Beyerstein is an award-winning investigative journalist and In These Times staff writer who writes the blog Duly Noted. Her stories have appeared in Newsweek, Salon, Slate, The NationMs. Magazine, and other publications. Her photographs have been published in the Wall Street Journal and the New York Times’ City Room. She also blogs at The Hillman Blog (, a publication of the Sidney Hillman Foundation, a non-profit that honors journalism in the public interest.