By Dr. Ken Broda-Bahm:
There is a perspective on juror attitudes that has been receiving some attention lately. “Safetyism” refers to an individual’s tendency to not merely prefer safety, but to demand unrealistic standards of protection — no errors, no risk of injury, no chance of a bad outcome, no ‘safe level’ of a contaminant, etc. — creating an obligation on companies and other agents to not just reduce or manage risks, but to effectively eliminate them. The perspective has been associated with a trend toward higher verdicts in products, malpractice, personal injury, transportation, and other cases.
IMS Senior Jury Consulting Advisor Dr. Jill Leibold and Senior Jury Consultant Dr. Nick Polavin recently shared a video podcast spotlighting their own research on the association between safetyist attitudes and higher verdicts. In the talk, they emphasize that a large part of the population will agree with often unrealistic safety views, to the point of bringing acceptable risk levels to zero, and that those who hold such attitudes are characterized by low risk tolerance, anti-corporatism, intuitive thinking, and emotional and often anger-driven reactions. Safetyism can also be thought of as an attitude that provides fuel for the Reptile approach to trying plaintiff’s cases. In an era of somewhat frequent “nuclear” verdicts, one practical concern is to target those jurors in voir dire. But given how common the attitude is, the other practical concern is for defendants to address tendencies toward safetyism within the remaining jury. While defendants don’t want to be the side that says, as the Reptile authors write, that you just want to “give danger a pass,” defendants do want to argue in a direction that will bring the jury closer to realism. To add to the conversation started by Leibold and Polavin, I thought I would share a few message possibilities in this post.
As always, the right message is going to depend on the unique features of your case and your venue, and that is something that ought to be tested in mock trial or focus group research before trial. But, broadly, I think there are three goals in crafting a message against safetyism.
Ground the Risks
Leibold and Polavin note based on their research that safetyists tend to be believers in science, an important fact given that the better science is often on the defense side. In light of that association, defendants can potentially tone down safetyism by appealing to science, emphasizing that plaintiffs might be exaggerating or relying on an emotional rather than an empirical response. In addition, it is also important to place risks in context and remind jurors that they apply the notion of acceptable risk to themselves in their daily lives.
Like many of you, I drove myself to court today, and I know that every time I get in a car and get on the road, it is possible that something bad will happen that wouldn’t be my fault. That’s inevitable. Regulators, manufacturers, and drivers will all try to reduce those risks. We want those risks to be zero, and we know that those risks are happily much lower than they were in our parents’ generation. But we also know that those risks are not, and will probably never be, zero. And we accept that the risk is something that goes along with our desire to live independently in a modern society.
Explore Both Sides of the Risk
Plaintiffs will often act as though risk is something that is only created by defendants: implicitly, the plaintiff was enjoying a state of being perfectly safe outside the actions of the defendant. But in reality, it is frequently a plaintiff’s own choices and decisions that have created or magnified the risk, and that is worth focusing on. There can also be a risk in being too focused on safety. For example, in a sports products liability context, it is probably impossible to imagine a zero-risk baseball bat, but the game is impossible to play without it. The same goes for virtually every other sports context: there are some risks, but in demanding absolute safety, we would be discouraging health, fitness, and recreation. That is a tradeoff that applies in other contexts as well: If we reject the risks of a medical procedure, that means accepting the risks of the underlying condition. In all cases, the goal is to not allow the plaintiff to define risk as a one-way street, and to get jurors to also consider what the risks might be in applying a standard of perfection.
Justify the Client’s Risk Minimization
Corporate defendants know it is important to tell what is colloquially called the “good company story.” But for a safetyist juror, the more important story is the more specific account of the ways that the company is working to actively minimize the chance of events like the one that occurred in this case. The message ought to be that “We aren’t accepting risk, but are working every day to reduce that risk.” Even if there will always be some level of risk, the company wants that to be as close to zero as it can realistically be. In practice, defendants often worry that in focusing on the message of general safety practices and commitments, they are potentially opening the door and allowing the plaintiff to admit some bad information. That can certainly be a concern, particularly where there are other incidents. But attorneys should not be too quick to exclude the risk-minimization story. Apart from any legal relevance, the question is psychologically critical to jurors, particular those with safetyist attitudes. If there is a good story to tell about how the defendant is working to reduce risk, give strong consideration to getting it out there.
It’s safe to say that safetyism is part and parcel of the current litigation climate, and there are some reasons to believe it may have been heightened by the collective trauma of the recent pandemic. In any case that involves measures of risk, defendants need to assess the attitude, develop ways to target the riskiest jurors, and to craft messages in order to persuade the rest.
____________________
Other Posts on Safety:
- Voir Dire for “Safetyist” Attitudes
- Safely Handle the “Safety Rule” Question
- Defend Your Product Testing Regimen: Seven Standards
____________________