By Dr. Ken Broda Bahm:
What drives the motivation to not just compensate but to punish? When it comes to considering the purpose and amount of legal damages, the defense will predictably want a jury that, if they get to that stage at all, is focused on just paying the bills. They will concentrate on the more concrete categories of economic damages and will avoid punitive damages on principle. The plaintiff, on the other hand, wants a jury on a mission. Ideally, they will want the jury to take a stand, send a message, and exact a penalty that will deter future conduct. In short, the defense seeks compensation (at most) while the plaintiff seeks punishment.
Social scientists have begun researching this “punishment profile” in order to get a handle on the types of jurors as well as the types of situations that elicit a mindset that is geared to punishment rather than compensation. Almost a decade ago (yes, this blog is that old) I wrote about research showing that high damage awards can be motivated by anger, but also by considerations of fairness or equity. In that post, I noted that there are attitudes of both justice and revenge in that decision. More recently, researchers have used the metaphor of pizza in order to explain two different scenarios that create the psychological motive to punish. In this post, I will explain those scenarios and what they tell us about the varying mindsets for damages.
The Pizza Scenario
As reported by a group of researchers writing in The Conversation, the pizza scenario goes like this:
You’re at a party, everyone is getting pizza, but after you put two slices on your plate and step away, your friend steals one of the slices.
Now that presents a clear case for revenge against your friend, particularly if it is really good pizza. They took a slice that was yours, so the motivation is that they should be punished.
But, next, consider a different scenario with a similar result:
You’re at the party, but the pizza arrives when you are out of the room. So your friend takes two for themselves, but only grabs one slice for you.
In this case as well, you have lost a slice due to your friend’s action. This time, they didn’t actually steal a piece from you, but they did nonetheless create an inequitable result: You are still missing a slice.
The researchers (Deutchman, Bračič, Raihani, & McAuliffe, 2021) studied this kind of scenario in an online game involving 2,426 American participants. What they found is that people are motivated to punish in both situations. The motivation was strong in the “revenge” scenario, and weaker in the “inequity” scenario, but both significantly increased the urge to punish.
Implications: How to Get or Avoid a Slice of Punishment
The researchers concluded, “This showed us that unfairness alone, even in the absence of a direct transgression like theft, is enough to motivate punishment.” The idea is that, in addition to punishing those who break the rules, we are also motivated to punish those who simply create an unfair outcome. In human social development, the revenge-based form of punishment for transgressions serves a deterrent function, by hopefully deterring similar conduct in the future, while the inequity-based punishment serves as a “leveling” function, in order to reduce the chances that you are left worse off than those around you.
When considering what drives jurors to mete out damage awards, it helps to consider both motivations. The stronger motivation, the research confirms, comes down to punishment for transgressive behavior. This resonates with the intuition and the research that jurors tend to take their foot off the brakes on damages when they are angered by the defendant’s behavior, and not when they are simply sad about what happened.
But the weaker motivation to punish so as to restore equity, also plays a role. In addition to stoking juror anger, plaintiffs wanting to drive up the numbers should also emphasize the unfairness of the result. In cases involving profits, for example, it may make sense to employ the concept of “unjust enrichment” even when that specific claim isn’t being advanced. And in order to placate both jurors’ sense of anger and their sense of injustice, defendants should remember that the positive story pointing to the conclusion that your client was good, fair, and reasonable is not just a defense of liability, but is also a story that helps to hold down damages even if they find liability. For defendants, the importance of fairness in punishment motivation points to the need to focus on what you did well, and to also potentially point out the inequity of a large damage award.
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Other Posts on Damages:
- Normalize Your Damages: Five Ways
- Damages: Know Your Anchor
- Remember, With Damages It’s the Message and Not Just the Math
Deutchman, P., Bračič, M., Raihani, N., & McAuliffe, K. (2021). Punishment is strongly motivated by revenge and weakly motivated by inequity aversion. Evolution and Human Behavior, 42(1), 12-20.