By Dr. Ken Broda Bahm:
While we like to frame it in terms of “justice,” the trial system is based to a large degree on punishment. On the criminal side, that focus is obvious as jurors decide whether the accused deserves a penalty, and if so, what level of penalty is most appropriate. But from a psychological perspective, or a jurors’ eye view, a civil case is about punishment as well. While the concept isn’t often built into the instructions or the verdict form, with the important exception of punitive damages, the idea of whether and how much to punish the civil defendant is nonetheless an important and often dominant part of the jury’s discussion. Instead of restricting themselves to the logical and analytical steps of determining liability, cause, and damages, jurors will instead focus more holistically on the broad question of whether a defendant deserves a penalty, whether they have it coming, and whether they need to receive a message. At that level, it is less about making the plaintiff whole than it is about making a defendant feel the financial pain and the notoriety of an adverse verdict.
To the extent that jurors see themselves as meting out punishment, there is one question that is both practical as well as important to social science: What motivates a punitive mindset? A recent research study (Buffman & Poulin, 2014) points to what might at first sound like an unlikely answer: Empathy motivates punishment. Intuitively, one might assume the opposite, that kindhearted feelings would encourage an attitude of wanting to help a victim, but those same kindhearted feelings might discourage the imposition of a painful penalty on the other party. The research, however, found the opposite. The study, covered in a recent article in The Atlantic tested research participants in a mock learning exercise. The researchers found that, when participants saw distress in one party, they were willing to deliver a greater punishment to the other party, even when that party played no role in causing the distress. The theory is that empathy is not just a matter of wanting to alleviate harm, but it is also a motivation to exact a commensurate harm on others, possibly to just “even the scale” and reassure ourselves that the universe is just. This finding that empathy can serve as a kind of grounding for punishment carries some important implications for trial communication. If jurors who are empathic by nature or as a result of what they’ve heard are more prone to punish, then that bears on how we approach empathy in trial. This post looks at the research and the implications.
The Research: Empathy Motivates Punishment
Anneke Buffoon and Michael Poulin of the University at Buffalo, New York recruited research participants who believed they were enrolled in a study assessing the relationship between pain and performance. They learned of a competition between two other students in another room. Half read an essay in which one competitor, I’ll call her Competitor One, reports being in distress (“I’ve never been this low on funds and it really scares me”) while the other half read a similar essay but without the distress (“I’ve never been this low on funds, but it doesn’t really bother me”). The distress in this case was not the fault of the other competitor, Competitor Two. After learning about the competitors, the research participants had to decide what kind of punishment would be delivered to Competitor Two, in the form of a dose of hot sauce.
As an interesting side note, psychological studies these days favor hot sauce as a penalty, not for culinary value, but because it is an easy way to cause discomfort or even pain, but without the potential for physical harm. But I digress, back to the study. When research participants believed Competitor One was in distress, they were willing to give Competitor Two a significantly higher dose of hot sauce. As The Atlantic explained, “Their empathy drove aggression, even when it made no moral sense.”
The researchers also looked at the role of two empathy-linked neurohormones: vasopressin and oxytocin. When those hormones are present in higher amounts, then the distress of Competitor One predicted even more aggression against Competitor Two. That is less relevant to litigation communication (because we are not allowed to test our venire’s hormone levels nor inject them with hormones), but it adds weight to the conclusion that it is really empathy, and not some other factor, that is motivating the punishment.
It may seem like an odd finding, but it is in line with similar research. Another recent study (Buckholtz et al., 2015), for example, found that blame and punishment appear to originate from distinct parts of the brain, and researchers were able to neurologically activate those regions independently — separately activating blame but not punishment, or punishment but not blame. The article in The Atlantic also points to similar studies conducted by Yale graduate student Nick Stagnate showing that the more empathic people are, the more likely they are to support harsh punishment.
The Implications: Address Empathy (Carefully) in Trial
The research adds some nuance to the common-sense understanding that empathy matters in trial. Because it motivates punishment, empathy should be addressed and handled carefully by both sides.
For Plaintiffs, Encourage Natural Empathy but Don’t Go Overboard
In your trial message, point to the victim’s distress because that is a powerful motivator for jurors. That may sound obvious, but it isn’t. For example, adherents to the Reptile perspective on plaintiffs trial advocacy might say that empathy doesn’t matter. Jurors’ primitive ‘reptilian’ brains, they might say, don’t respond to “other people’s problems,” but only to the perception of a personal threat to themselves or their offspring. The research results, on the other hand, show that an emphasis on empathic care toward others, along with the punishment that is motivated by that care, stem from a need for protection. “Our findings additionally reaffirm the view,” the authors conclude, “that the caregiving behavioral system functions in humans to address not only needs for nurturance and comfort, but also needs for protection.”
So plaintiffs should probably favor the potential juror in voir dire who appears to hold high empathy-oriented attitudes or experiences. The worry that the empathy might motivate protection of the defendant is countered by the research results. On the whole, an empathy orientation seems to fit nicely with the punishment mindset that plaintiffs are trying to cultivate.
At the same time, a trial setting differs in important ways from a research setting. Jurors know that the attorneys are trying to influence them, so a light touch on empathy is advisable, and is best pursued after building a solid case focusing on the defendant’s blame and the associated societal threat. In addition, plaintiffs need to make a distinction: Sympathy appeals that seek to motivate based on pity are out, while empathy appeals that seek to motivate based on a rational understanding of the plaintiff’s circumstances are in.
For Defendants, Don’t Assume Empathy Will Save You
This often comes up in a criminal setting: The defense attorney will look at a kindly school teacher sitting in the panel of potential jurors and think, “Sure, he will empathize with the victim, but he will also understand the defendant…Thinking of my client in the same terms as a misbehaving child, he would never want to see a harsh penalty.” Don’t be so sure of that. Based on the research, punitiveness doesn’t just coincide with empathy, it actually seems to be accelerated by it.
That punitive mindset matters in a civil setting as well. The empathic potential juror, with the standard ‘bleeding heart’ predictors (socially liberal, helping professions) could direct empathy toward a perceived victim and be even more harsh in judgment. Instead of empathy weighing against punishment, or benefitting both sides equally, empathy seems to come down on the side of greater punitiveness.
At a more basic level, the defense should also try to realistically counter empathy. Sometimes, of course, empathy is inevitable and defense counsel only risks their credibility by trying to counter it. In other cases, an emphasis on the facts can help to reasonably minimize the plaintiff’s distress. In addition, the more unique or atypical the victim’s circumstances, the less readily jurors will be able to generalize that empathy to the point that they see a personally relevant threat.
Whether the law uses the term or not, jurors and judges too know their role is to decide on punishment. They will impose penalties when the law and the facts call for it — or they’ll at least try hard for that to be the basis. But they will also be more motivated to do so when their own personal morality calls for it.
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Other Posts on Empathy:
- Sympathy for the Devil, but Empathy for Your Judge
- Know the Limits of Political Empathy
- Switch Between Analysis and Empathy(Because You Won’t Get Both at the Same Time)
- Don’t Mistake Sociability for Empathy
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Buckholtz, J.W., Martin, J.W., Treadway, M.T., Jan, K., Zald, D.H., Jones, O., Marois, R. (2015). From Blame to Punishment: Disrupting Prefrontal Cortex Activity Reveals Norm Enforcement Mechanisms. Neuron, 2015; DOI: 10.1016/j.neuron.2015.08.023
Buffone, A. E., & Poulin, M. J. (2014). Empathy, Target Distress, and Neurohormone Genes Interact to Predict Aggression for Others–Even Without Provocation. Personality and social psychology bulletin, 40(11), 1406-1422.
Image credit: 123rf.com, used under license, edited by the author