Consider Character

By Dr. Ken Broda Bahm:

Based on recent events, we are still a long way from Dr. King’s dream of a nation where his children “will not be judged by the color of their skin but by the content of their character.” The horrific murder of nine worshipers in the Emanuel African Methodist Church in Charleston, South Carolina is not only a test of our character, but a contrast in character. For the shooter’s part, we all found out quite a bit on the shooter’s character just hours after the attack, thanks to social media. And on Friday, we also saw the character of the victims’ family members as one after another offered forgiveness during his televised bail hearing. The same day all of this was going on, I was working with a witness getting him ready for testimony. He has been accused of doing terrible things, and I found myself wondering how jurors would assess his character — how would they imagine his capacity for either good or evil?

In a legal context, we are used to thinking, not about character, but about credibility — whether the witness will be believable or not. That’s important, of course, but is still just a subset of a broader quality. After all, we sometimes like people who we don’t fully trust. Based on the research, attributions of character are relevant to all kinds of moral judgments, including those that are made in a courtroom. David Pizarro of Cornell University and David Tannenbaum of University of California, Irvine (2011) have proposed a shift away from viewing moral judgements based on the qualities of the act, and toward viewing moral judgments based on the character of the person performing the act. “A simple way of highlighting the difference,” they write, “is to wonder whether the person making a judgment of blame is asking him- or herself, ‘Was this particular action wrong?’ or ‘Is the person who committed this act a bad person?'” The authors marshall a broad range of social science experimental results to show that the latter is more natural to us. This reframing, they argue, provides a more accurate view of how we make moral judgements. This post takes a practical look at what it means to say that character is a key component of moral judgment and what that means to the practical litigator.

The law will in most cases emphasize the quality of the act more than the quality of the person. Pizarro and Tannenbaum (2011), however, amass an impressive body of data showing that this focus is at odds with our more ingrained habits of moral judgments. Let me highlight from their article three ways this is true, adding for each an implication for trial lawyers.

Character Motivates

Why do we engage in moral judgment? As with most such traits, it is probably because, at some point in our development as a species, it provided us with an advantage. “This ability and motivation to evaluate others on the basis of moral character,” Pizarro and Tannenbaum write, “was likely of such fundamental importance during primate and human evolution that it is most likely a product of natural selection.” And from that perspective, the ability to identify good people matters far more than the ability to identify good acts. It is for that reason no surprise that we begin making those attributions very early in life, and continue doing so very quickly and early in our interactions with others. Moral judgment is fundamental to human social cognition based on the strongest possible motivation: security.

For litigators, this means that perceived character matters for all the intuitive reasons lawyers already know. You want your client to seem good, not bad. Jurors, to their credit, will try to make that not matter, wanting to see themselves as dispassionately applying the law and not showing favoritism based on who they like. Still, the fact that character assessment plays a motivational role means they want to work for a good party more than a bad one: to look for and to understand the favorable facts and law. Ultimately, they’ll still feel like they made their decision based on the evidence, but perceived character will play a strong role in leading them to it.

Character Affects Consequences

Intuitively, the consequences of an action would seem to matter most in evaluating that action: Good acts are those that produce good, and bad acts are those that produce bad. But based on the studies, that is not always how we evaluate. Instead, we often mix our views of consequences with our views of character. Even harmless actions are more likely to be worthy of blame when those actions are performed by a bad character. One study scenario (Alicke, 2000) underscores that tendency. It dealt with a driver who was speeding home and caused an accident severely injuring another person. Only in one version, the driver was speeding home to hide an anniversary gift, and in the other scenario he was speeding home to hide a package of cocaine in his parents’ house. Either way, the behavior (speeding) was the same and the consequences of that behavior (severe injury to another) were the same. The only difference was the character. But that was enough to attribute significantly greater control and greater blame on the kind of guy who hides drugs at his parents’ rather than the kind of guy who wants an anniversary surprise.

For litigators, this means that the “positive story” on your client, plaintiff or defendant, is critical. Even when it doesn’t matter to any of the elements of the claim, jurors need to see how, in at least some ways, your client is the white hat and not the black hat in this dispute. And it is important to convey that positive story before covering your main claims and defenses, since that perception of character will serve as a filter for the evidence they notice, remember, and use.

Character Conveys Intention

Under a theory of moral judgment that traces it to evolutionary advantage, evaluating the acts of others is a good idea mainly because those acts are diagnostic of underlying character traits. That means that the conveyed intentions matter at least as much as anything else about the act. Because we often don’t have a window into the mental states of others, we use information about character traits to determine what mental states would have been more or less likely. Pizarro and Tannenbaum write, “If there is evidence that an individual is a bad person, the inference that he or she intended a negative outcome seems reasonable (because bad people, by definition, are likely to desire and intend bad things.” Based on research I’ve written about before, they observe that perceived character information conveys intentionality, and people are more likely to decide that an act was performed intentionally if they believe that act was morally wrong.

For litigators, this means intentions matter even when intent has nothing to do with the elements of the claim. As Pizarro and Tannenbaum summarize, “We do not just want individuals to perform the right act, we want them to do it in the right way and for the right reasons.” So it helps to convey the full picture, including the thinking that went into a decision. In an employment wrongful termination defense, for example, a difficult decision will often be easier to defend than an easy decision. “When making a difficult decision about morality,” they write, “it appears that people want the decision to be made with difficulty, because this indicates that the decision maker has sentiments we value.”

The idea that the character of the actor counts as much as the act itself isn’t a new idea. Classic Greek ethics also emphasized character as a key to morality, and the Aristotelian ideal of “ethos” is better translated as “character” rather than as just “credibility.” That, combined with the newer research reviewed by Pizarro and Tannenbaum recommend a broader view of what we try to convey on behalf of parties in the courtroom. A good person with a good claim or defense will always fare better than just a good claim or defense.

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(formerly the Persuasive Litigator blog)

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