Tom Wolfe, in his book The Right Stuff, described how military pilots reacted when a fellow pilot was killed during test flights. He wrote:
“The other pilots shook their heads and said it was a damned shame, but he should have known better than to wait so long before lowering the flaps.” When another friend was killed after climbing and then diving straight into the bay, they said “How could anybody fail to check his hose connections? And how could anybody be in such poor condition as to pass out that quickly from hypoxia?” When their friend, Bud Jennings, crashed his plane and burned to death they all agreed that “He was a good guy and a good pilot, but his epitaph was: ‘how could he have been so stupid?”
Why would good friends have those attitudes when a fellow test pilot and friend was tragically killed in a crash? Where is their sympathy? The answer was explained by Quentin Brogden who wrote an excellent article in Trial Magazine entitled “Why do jurors blame the victim?” He cites the Wolfe’s book, and says that test pilots reacted so unsympathetically towards their friends deaths because they were using a coping mechanism that psychologists label “defensive attribution.” That is, blaming the victim in order to distance themselves psychologically from their chances of a similar fate. As he notes, many of us do the same thing. For example, when we read about the victim of crime and our reaction is “what was that guy doing out in that part of town so late at night?” It reduces our fear that we could suffer the same fate and distances ourselves from it happening to us.
In addition to that, research shows that the more severe the accident or the harm suffered by the plaintiff, the greater the jurors need to blame the injured person. They are even more inclined to blame the injured person in order to preserve the belief that they would have avoided a similar fate. As a result, in cases of serious injury, mock jury studies showed the jurors discounted damages twice. First, by blaming the injured person and then increasing the amount of the discount due to the degree of seriousness of the injury. Using hindsight bias. Jurors did this even when it was made clear neither was a legally relevant issue.
To complicate this even more, there is body of research which indicates the jurors place more blame on the injured plaintiff when they have similarities to him or her or identify with them. Psychologists call this the identification effect. These identifications have the tendency for the juror to reassure themselves they would not have done the same thing.
In addition research has indicated that jurors who have had injuries like that suffered by the plaintiff, but did not decide to try to collect compensation for it or file a lawsuit, are more likely to blame the plaintiff than other jurors.
Given these factors, it’s important which party we start telling our story about. The concept of availability bias refers to our mental process of starting our impressions with the first available information we get. It is clear and well-established that we should address the defendant’s side first. Jurors begin forming impressions with the first available information. In presenting our case story we should begin with the defendant because jurors start their impression by focusing on the first information they are given. They apply defensive attribution to the first party’s conduct they learn about. In addition, since anger at a defendant is much more powerful a motivator than sympathy for the plaintiff, we want the jurors to start by focusing on what the defendant did wrong. As people struggle to understand information they focus on the first information they are given and then began to fill in the blanks by creating a story in their minds that they believe. When we present the defendant’s conduct first the jurors focus upon the defendants blameworthiness. Only after that, and after blaming the defendant, do they began to examine the plaintiff’s behavior. By identifying the defendant as the villain it encourages the jurors to be angry at the defendant and less focused on the plaintiff’s conduct.
These factors should be considered along with jury motivators in how we present our cases. Jury research shows that the average juror are motivated in five general ways:
- They want a complete story: A beginning a middle and an end with a logical reason for actions. They do this by creating in their minds a story that is whole and complete and leaves no loose ends.
- They use all of their available information whether it has been admitted in evidence or not. Most of this occurs subconsciously. For example past life experiences they have had are significant to them. Their value systems and their existing opinions or biases are all involved whether admitted in evidence or not.
- A trial is a battle of impression and not logic. People do not reach decisions by examining the evidence presented in a logical way, weighing it and then arriving at an objective opinion. They make their opinions almost entirely at a subconscious level based upon their impressions, values and the story they have created about the case. This process begins immediately when they are given information to consider.
- Jurors want to do the right thing. They want to feel good about their verdicts.
- Jurors want to appear reasonable and to appear to have been fair and following procedural rules and arriving at their decision.
The psychological factors described previously operate subconsciously and without the jurors even realizing it. It’s the advocates job to understand these psychological factors and present their case in a way that is consistent with them.