By Dr. Ken Broda Bahm:
It is an unusual research finding, but it explains a great deal of what we see in mock trials and litigation outcomes: Just as with naughty pupils, bad acts receive more attention than good acts. For both the plaintiff, as well as the defendant, juries and other fact-finders are likely to spend more time focusing on what the party did wrong rather than on what the party got right. Now on face, that may seem natural enough. After all, litigation takes place after something goes wrong. Still, you might hope that in looking at the overall picture of a defendant’s negligence or a plaintiff’s level of comparative fault, the finders of fact would give equal consideration to both positive and negative actions. Unfortunately, that is not so.
Based on a long-term study conducted by experimental philosopher Joshua Knobe and reported in Scientific American, there is a curious interaction between the perceived morality of an action and its likelihood of being considered intentional or not. Contrary to the common sense notion that people are trying their best, it is actually the bad actions that are seen as being more intentional than the good acts: Bad things are done and good things happen. For the litigant, that means that you need to devote additional care to avoid the natural tendency for your image to be defined by bad actions. While telling a positive story of what you got right, you need to make sure that your good actions are portrayed as intentional, and in doing that, it helps if your good intentions are truly actual.
The Study:
Dr. Knobe (it would be shocking if his students don’t call him “Obi Wan”) is a Yale professor who is part of a novel movement focused on addressing moral philosophy through experiments. In the Scientific American (2011) piece, and also in an opinion column in The New Scientist (2010), he describes a research project based on reactions to two different versions of a corporate chairman considering a new policy:
Version One: “I know this policy will harm the environment, but I don’t care at all about that. All I care about is making as much money as possible. So let’s go ahead and do it.”
Version Two: ” I know this policy will help the environment, but I don’t care at all about that. All I care about is making as much money as possible. So let’s go ahead and do it.”
Obviously, the versions are identical, but for the difference on whether the actions “harm” or “help” the environment. You would think that since the level of conveyed knowledge and purpose are the same, the degree of intention would be seen as the same as well. However, when participants in numerous studies were asked “Did the chairman [help/harm] the environment intentionally?” overwhelming majorities answered that the harm to the environment was intentional, while the help to the environment was inadvertant. While the chairman’s overriding motive in both versions is greed, the failure to account for harm is purposeful, but the failure to account for benefit is just a side effect.
As applied to litigants, this finding helps to explain a tendency to apply a higher standard for praise than blame. When it comes to bad actions, there is a reluctance to give parties the benefit of the doubt and a tendency to infer willfulness. When it comes to good actions, however, individuals and companies — especially in these anti-corporate times — have to work doubly hard in order to encourage fact-finders to see the goodwill, or else the bad acts alone will form the foundation of intended and relevant action that become the basis for a verdict.
Recommendations:
1. Tell a positive story first. The first impulse for all parties is to throw rocks at the other side. However, we have long advocated that an essential step prior to that is to build your own house by telling the positive story of what you did right, and why. Once that house is built, and once you’ve managed to minimize the amount of glass in that house, then it is time to throw rocks at the other side.
2. Include the intention behind your good acts. The presumption that a party acted for the wrong reasons is often so strong (driven by bias against corporations, or against those who bring lawsuits) that jurors have a hard time believing that you acted for the right reasons. In the case of a company in particular, jurors will often resist believing that the company did anything for truly altruistic reasons. Accordingly, we have often emphasized the corporate defendant’s responsibility to show that the “right thing” was also “the profitable thing,” and the company acted ethically, adhered to policy, met regulations, etc., because it gave the company an advantage in the marketplace.
3. Make sure your good intentions are actual. Jurors are well attuned to window dressing, and in trial, they are conditioned to expect it. In order for jurors to be convinced that your motives are real, it helps for them to hear that message not only from top executives but from ground-level personnel as well. Most of all, it helps if fact-finders can see the good intentions in your actions, as opposed to just hearing about your values.
By prioritizing a positive story and including your motives and intentions as part of the story, you encourage jurors to see those acts as more relevant to the story, and more important to any determination of negligence or fault. Ultimately, you need to avoid the fate of the misbehaving school kid, because no one does well when defined by their worst actions alone.
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Related Posts:
- 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
- Be Disruptive in the Courtroom
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Knobe, Joshue (2010, October 15). Morality Special: Our Hidden Judgments. The New Scientist, 208: 2782.
Knobe, Joshua (2011, October). The Side Effect Effect: Test How Morality Affects Your World View. Scientific American.
Photo Credit: Miguel Mendoza :P, Flickr Creative Commons