By Dr. Ken Broda Bahm:
“Whatever happened to causation,” defendants sometimes wonder. For example, a drug company is targeted for inadequate testing, and for attempting to hide research showing a statistical link to cancer. The Plaintiff took the drug, and now has cancer. For many jurors, that would prompt them to break out the check-book: “Liability established… Lets talk damages!” But the key question lying in the gap between these two conclusions is causation — Did the drug, in this case, cause the Plaintiff’s cancer?
As often as we observe jurors wanting to hurdle over causation, it is surprising the problem hasn’t received more attention in the trial persuasion literature. But the issue has attracted the interest of those focusing on moral decision making more generally. One new study (Inbar, Pizarro & Cushman, 2012) examines the conditions under which actions that have caused no harms are nonetheless judged to be morally blameworthy. Working from this study and other experience, this post suggests four ways for defendants to mind the causal gap between liability and damages.
The Research: Harmless Actions Can Be Blameworthy
The study (Inbar, Pizarro & Cushman, 2012), in the current issue of Personality and Social Psychology Bulletin, confirms what we have often seen in deliberations: A willingness to blame is based on the nature of the act, including what it says about the character of the actor, rather than strictly on the consequences of the act. The researchers conducted four studies, looking at scenarios of investors positioning themselves to benefit from the misfortunes of another, for example, by betting on an earthquake, mortgage defaults, or a “short sale,” assuming stocks would drop in value. In controlled experiments, participant judged the individuals who benefited or simply positioned themselves to benefit from harms that they neither caused, nor intended to cause as morally blameworthy. Put simply, people tend to feel that a bad act or motive deserves blame whether it causes harm or not. “These results,” the authors note, “are problematic for psychological theories of blame and responsibility that emphasize causal responsibility for harm and the intention to cause it as necessary for the attribution of moral blame.” In a similar way, I’d add that the results are also at odds with the assumptions of tort law, and the principle that a bad act needs to produce harm in order to merit blame.
It might sound intuitive that bad acts motivate blame, especially to non-lawyers, but the research explains why jurors can often be in a mood to assign damages after just establishing liability. Someone who has engaged in bad actions should face consequences, jurors intuitively feel, even if uncertainty or luck has spared them from the clear consequence of a defined harm to someone else.
Recommendations: Mind the Causal Gap
1. Never Count on Causation as Your “Silver Bullet” Defense. Legally, you are on solid ground in believing that even established liability won’t be counted against you if the plaintiff fails to establish cause. At the same time, that is a far-better argument to emphasize in summary judgment rather than in front of a jury. Unless it is deeply embedded in a strong defense of liability, an attack on plaintiff’s causation can end up just sounding like an “excuse” to many jurors.
2. Avoid the Triggers that Encourage Jurors to Skip Over Cause. We know that jurors don’t always skip over cause, so it helps to think about what elements of a trial story specifically induce jurors to want to jump straight from bad acts to damages. Based on the research, including the Inbar et al., article and others they cite, there are several specific triggers to avoid:
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Benefiting from the misfortunes of others
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Engaging in quick or thoughtless decision making
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Choosing to remain ignorant of the consequences
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Exhibiting callousness or a disregard for the consequences
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Contaminating intrinsic values (preserving human life) with extrinsic motivations (making a profit)
When your adversary succeeds in connecting your decision-making with one or more of those triggers, they greatly increase the chances that a jury finding liability will automatically connect that to causation. To the extent that you are able to defend your decision-making, jurors are more likely to look for a harm that was caused before they’re ready to discuss damages.
3. Use Voir Dire to Target the Most Likely “Cause Jumpers.” Based on this research, as well as our experience in jury selections, jurors who are willing to place ethics over the law are more willing to base their decision on moral evaluation alone rather than the instructions. So a good question to employ in voir dire is:
When personal ethics and the law conflict with one another, which of the two do you think should be followed?
Those who will prioritize ethics (about a third over the years) are not only harder on liability, but are also more likely to feel that liability is all that matters.
4. Teach Jurors to Avoid the Leap. Of course, the other resource is to convince jurors that, no matter what path they would take in making decisions in their personal life, the law in this present case is asking them to make a decision in a specific way. For example, it is a little like baseball: The Plaintiff does not get to run for home unless they’ve touched first base on liability, then second base on causation, then third base on damages.
There are many ways your trial message can shape the jurors’ decision-making process, and jury instructions do matter. But what defense attorneys can’t afford to do is assume that jurors will find it easy to set aside their own psychology and moral decision making in order to check all the boxes that the law requires. As always, the best defense is going to involve a clear and positive story about your own actions and intentions. Only rarely will a good defense be based on the weaknesses in a plaintiff’s causation story.
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Other Posts on Causation:
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Inbar Y, Pizarro DA, & Cushman F (2012). Benefiting from misfortune: when harmless actions are judged to be morally blameworthy. Personality & social psychology bulletin, 38(1), 52-62 PMID: 22214885
Photo Credit: MaMaVe, Flickr Creative Commons