By Dr. Ken Broda-Bahm:
Negligence is supposed to be a determination of action, not intention. Looking only at outward conduct, jurors in a negligence case are typically asked to decide whether an act, or a failure to act, was reasonable, and in line with what reasonable peers would have done in a similar situation. The intention or mental state of the actor is not supposed to matter in that determination. At least, that is what the law says. But among those who study jurors and other decision-makers, there has been a strong suspicion that this ignores a practical reality. Jurors aren’t that parsimonious. They are looking at the situation broadly through a moral lens, asking whether someone deservers punishment or protection, and in that evaluation intentions always matter.
Thanks to a new and novel study, there is now a study to back this up. Researchers (Margoni & Brown, 2023) looked specifically at how mock jurors assessed the question of foreseeability, and specifically whether they looked at it “objectively” (using a “reasonsable person” standard) or whether they viewed it subjectively by “mentalizing” the question and considering the defendant’s specific knowledge. The result backs up the intuition: When a defendant expected a higher risk, they were more negligent, and when they expected a lower risk they were less negligent. This result occurred despite the instruction to focus only on the reasonability of outward conduct and not on the defendant’s mental state. In this post, I’ll take a look at the research and what it says to litigators addressing negligence.
The Research: Mental State Matters (Even When Jurors Are Told It Doesn’t)
The researchers in Utah and Norway looked at US juror-eligible participants in a series of four studies. In each, participants were given scenarios of potential negligence, with the circumstances varied and the harm experienced being either mild or severe. Participants acting as mock jurors assessed whether a reasonably careful person would have foreseen the risk, and were also given the legal instruction that reasonableness is an objective standard and that negligence cannot be assessed by looking at whether the defendant actually foresaw the risk, but only on the question of whether a reasonable person would have perceived that risk. For some participants, the researchers also added the defendant’s mental state to that objective picture, varying the prior knowledge so that the defendant prior to the incident believed that the risk of harm was either low or high.
They found that this expectation mattered a lot: “Overall, these results suggest that jurors consider defendant’s subjective mental state information when judging negligence even when they are explicitly instructed not to do so.”
The Implication: Mental State Is Part of the Story, So Address It If You Can
The law is and should be guided by rules of relevance, but those rules in turn have to be guided by human psychology if they are going to matter in practice. For litigators, there is a danger in hewing too closely to a narrow legal view of relevance. You will, of course, be policed by objections from the other side or restrictions from the court, but generally there are some blurry lines that will often allow state-of-mind information to get in.
The implication of the study is this: Never assume that jurors are going to see that evidence on intention as irrelevant just because they’re told it is irrelevant. As the researchers note, it likely “seems fairer” to jurors to consider the information on mental state when making moral and legal judgments, and even if they do accept the notion that it shouldn’t matter, they may simply find it impossible to ignore that information.
A comprehensive trial story isn’t going to just check the boxes on the elements contained in the instructions. It is going to help jurors see the full picture on the parties, including their actions, expectations, motivations, and reactions. To the extent you can, bring those parts of the story out in voir dire, opening, witness examination, and closing, doing so will address what is probably on the jurors’ minds. Yes, you should still ask them to follow the law, and yes those instructions will still help to a degree. But on something as basic as intent, it makes sense to assume that it is always going to matter to jurors.
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Other Posts on Negligence:
- To Convince on Negligence, Frame It as “Gain”
- Treat the “Reasonable Person,” Not as an Abstraction, but as an Average
- Understand the Two-Edged Sword of Subsequent Remedial Measures
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Margoni, F., & Brown, T. R. (2023). Jurors use mental state information to assess breach in negligence cases. Cognition, 236, 105442. URL: https://www.sciencedirect.com/science/article/pii/S0010027723000768