By Dr. Ken Broda-Bahm:
Recently, civil defendants have been interested in a new label: “Safetyism.” The idea focuses on a pervasive and increasing attitude in the jury-eligible population that demands unrealistic standards when it comes to protecting customers, patients, and the general public. The name, I think, might be a little deceptive, because it isn’t just a matter of safety — something everyone supports — but an absolute standard of perfection, and a functional acceptance of zero or near-zero risk.
In a recent Law 360 article, author Ann Marie Duffy writes about the perspective and references data indicating very high levels of public support for safetyism: for example, 91 percent believing that products should be 100 percent safe for all consumers. Clearly, that is a standard of perfection that does not mesh well with the inherent risks in the real world. The problem in arguing against that kind of absolutism is that you are set you up to do exactly what a plaintiff wants you to do — namely to seem to be arguing for danger. As a result, a defendant’s act of nudging jurors toward greater realism when it comes to risk is something that needs to be approached carefully. In this post, I’ll share a couple of thoughts: How you should not do it, and how you should do it.
The Trap: Don’t Frame it as “Acceptable Risk”
Logically, it makes sense to counter an absolutist perspective on safety with the notion of there being some range of acceptable risk. After all, this is accurate: the jurors who agree with a standard of absolute safety in voir dire will then walk to the parking garage to get in their cars and drive home, an act which statistics would say is likely one of their greatest risks and a risk they will tacitly accept on a daily basis. But I’ve come to think that a framing around acceptable risk isn’t the best litigation strategy. Knowing this might conflict with some of my earlier advice, I increasingly believe that in a Reptile and Post-Reptile world, this style of argument might help plaintiffs make it seem like the other side is arguing for an acceptance of danger. As the Reptile authors (Ball & Keenan) wrote in the original book, “the Reptile is about community (and thus her own) safety – which, in trial, is our [plaintiffs’] exclusive domain. The defense almost never has a way to help community safety. The defense mantra is virtually always, ‘Give danger a pass.’” Focusing on the rarity or the tacit acceptance of a given risk might be logically satisfying (because it’s true), but it is less likely to work psychologically when jurors have a flesh and blood example of the consequences of that danger sitting in front of them. In that context, talking about “acceptable risk” can be seen as an argument to simply accept the negative consequences that gave rise to the suit.
The Fix: Frame It as “Zone of Control”
There are things we can control, and there are things we can’t. In that binary, the first zone is something we accept, and embrace. When it comes to the things we can control, we are safety maximalists, and within that zone, we don’t accept risks to safety and well-being. Within that zone, the defendant takes responsibility. Outside that zone, however, there are things we do not and cannot control. And in that realm, it is the circumstances and not us who are the managers of risk. If your case puts you in the position to say it, a good message is that within this zone of control we expect and provide the best, but outside of that zone there are still going to be risks. The bottom line is that the defense needs a message that doesn’t sound defensive, and being too relativistic on safety isn’t safe. It works better to embrace responsibility for what you can control, and center your positive message on that.
Jurors are likely to still cling to safetyist positions, but many of those are notions that are easier to agree to in principle. Statements like “Products should be 100 percent safe for all consumers” will get a high agreement rate often due to a lack of context. In court, there will be opportunities for greater nuance, and a “zone of control” framing should be one of the prime tools for bringing the safety absolutists back down to earth.
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Other Posts on ‘Safetyism’:
- Voir Dire for “Safetyist” Attitudes
- Counter “Safetyism” With Realism
- Think About Your Juror’s Epistemology
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