By Dr. Ken Broda Bahm:
Sometimes you come across a document that challenges your view of basic human goodness. The stomach-churning Grand Jury Report relating to the Pennsylvania State football scandal is one such document. What stands out, based on the allegations, is just how many times former assistant coach Jerry Sandusky was caught. In locker rooms, workout rooms, cars, and homes, the report points to continual revelations of abuse that led to minor and incomplete reactions. The responses of those making the discoveries appeared to be “not in my locker room…” or “not with my kid…” instead of “you are going to prison.” If the facts end up bearing out that perception, then there is a great deal of blame to be shared by those around Mr. Sandusky.
The situation also raises the question, “What would I have done.” We would all like to believe that, if we had clear evidence of child sexual abuse, we would have acted differently from the many witnesses in Happy Valley. We wouldn’t have just told our supervisors, like then graduate assistant Mike McQueary, we would have told the police, then the media, and the world if no action was taken. Hopefully, that expectation is accurate in this case. But we also know that in many cases there is a tendency to idealize our expected behavior. In our own estimation, we always would have been more careful, more thorough, and shown greater foresight than others. That tendency to idealize has a direct effect on how jurors personalize abstract legal standards like the “reasonable person” and the “exercise of ordinary care.” They start by asking, “WWID” or “What would I do?” And then they apply a little gloss to the answer.
The Reasonable Person and the Tendency to Idealize
It is an ever-present touchstone of our common law that every individual owes a duty to behave as a reasonable person would behave under the same or similar circumstances. While the law might treat that as an objective standard, the only way for a given juror to apply it is subjectively. We know “reasonability” by filtering it through our own experiences and worldview. When understood in that personal way, what is “reasonable” can end up looking a lot closer to what we consider “ideal.” Our own estimations of what we would do in a given situation are generally better than what others have done, and better than we ourselves would have done if actually in that situation.
For example, one recent study (FeldmanHall, 2011) looked at what people would do for money, compared to what they thought they would do for money. The Cambridge University researchers started by giving participants a hypothetical choice: Would they deliver an electric shock to another person (ala the 1961 Stanley Milgram experiement) in exchange for money? A majority, 64 percent, said “no,” not even a mild shock in exchange for cash. But when participants were actually given the chance to shock, a surprising 96 percent chose to administer the shocks and collected a cash reward based on the severity of the shocks. Unlike the classic Milgram study, where resistance to continued delivery of shocks was answered by a simple, “the experiment requires that you continue,” in FeldmanHall’s study the participants had a choice: They could deliver the shock and receive cash (one British Pound, about a dollar and a half), or they could spare the other person the shock and forgo the money. In that context, the number of participants delivering shocks, as well as the number of shocks delivered (the average participant earned more than fifteen Pounds from the experiment) show that we can’t trust self-assessments of hypothetical behavior.
Yet those are the same assessments — What would I do? — that guide jurors’ understanding of negligence and other common law claims.
Helping Jurors Nail Down Reasonability
Rather than relying on jurors to apply our own concept of “reasonability” or to discern the concept as a self-evident universal rule, I encourage litigators to take a few steps in order to help jurors to an understanding of the standard that is clear and favorable to your case.
1. You Can Rely on Hypotheticals in Voir Dire to Set a Standard. If you’re trying to determine whether a potential juror places product label reading, for example, in the category of something that a manufacturer can “reasonably” expect, you’ll want to know if they read labels or not. But you will get a more idealized response if you simply ask whether they read labels, which panelists are likely to interpret as “would you have read the label in this case?” That idealized response (“of course I read labels, and would have read this label”) is definitely helpful — usually to a defendant — in conveying a standard to the ultimate jury, especially when the same response is given by many on the panel, but it tells you much less about the actual behavior of the individual venire member.
2. But Ask About Actual Behavior If You Want to Reduce the Gloss. For the plaintiff interested in what the potential juror truly does with labels, rather than asking about hypothetical or expected behavior, the better series of questions is: “What was the last consumer product you bought? Do you still have the instructions and any warnings? Did you do anything with those labels and warnings? Did you you fully read them, scan them, glance at them, or not read them at all?”
3. When Necessary, Teach the Difference Between “Reasonable” and “Ideal.” Particularly when ideal behavior would have, in hindsight, prevented the problem, there is a strong pull for jurors to elevate “reasonability” to that level. When that doesn’t aid your case, you want to help jurors resist that pull. One way to do that is to explicitly note the difference by asking about it in voir dire, by previewing the difference in opening statement, and by stressing that the law requires only the reasonable, and not the ideal, in closing argument. One effective technique we’ve used is to create a demonstrative exhibit showing a staircase with at least three labeled steps: one ideal, one reasonable, and one negligent.
As the Pennsylvania football scandal continues, followed by a nearly parallel situation with Syracuse associate basketball coach Bernie Fine, we not only hope that we would have acted more responsibly than the witnesses at the time, we believe passionately that we would have. The facts will differ, but the same “What Would I Do?” tendency is common across all litigation scenarios. Litigators need to understand and adapt to that tendency in order to promote a fair standard in court.
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Related Posts:
- Avoid Condescension and Other Sins of Legal Argument: Know Your ‘Second Persona’
- Don’t Wear The Black Hat Lightly: You’re Not the Bad Guy Because You’re at Fault, You’re at Fault Because You’re the Bad Guy
- When It Comes to Your Greatest Case Weakness, Steer Into the Skid
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FeldmanHall, Oriel (April 4, 2011). Presentation to the Annual Meeting of Cognitive neuoscience Society.