By Dr. Ken Broda Bahm:
Do our good intentions save us from the bad impacts of our acts? This past spring, that question was addressed musically via the song, “Accidental Racist.” Pairing up country star Brad Paisley and rapper LL Cool J, the song centers on a dialogue between a Southern white man and an urban black man on unintended racial slights. So, if there is anything more awkward than a country/rap mashup, it is a country/rap mashup focusing on racism. The song was the focus of a hilarious Steven Colbert bit, ending with a slightly off-color spoof in a duet with actor Alan Cumming, “Oopsie-Daisy Homophobe.”
The Research: Intentions Can Overwhelm Impacts
In a very useful summary, Melanie Tannenbaum, Scientific American blogger, as well as a doctoral candidate at University of Illinois at Urbana-Champaign, focuses on the limits of “I didn’t mean it” as an after the fact excuse. In many instances, including quite often civil suits, impacts should be more important than intents. “When someone does something hurtful or offensive to another person,” she writes, “the perpetrator’s intent is not what’s most important when gauging the appropriateness of an action.” In a simple negligence claim, for example, the question is whether the defendant failed to exercise ordinary care, and not on the reason for that failure. But it turns out that when the formal emphasis should be on impact, the actual emphasis is often still on intentions. In that simple negligence claim, jurors will gravitate to the question of whether the defendant had defensible motives for acting or failing to act.
Tannenbaum discusses a number of different studies, and notes that when research participants are provided scenarios in which the actions of one individual harmed another individual, the participants’ desire to punish hinges on whether the offender did or did not intend harm. Even when they aren’t formally “punitive,” damages in a legal context, along with a finding of liability, are still seen as a kind of punishment for the defendant, and many jurors are not comfortable getting to that level unless they see an improper purpose behind the defendant’s actions.
The article also notes one other wrinkle: It would be justifiable for research participants to find intended acts more blameworthy, but the research shows participants see them as more harmful as well. Pointing to a recent study by Daniel Ames and Susan Fiske (2013), Tannenbaum describes the scenario:
Participants read about a CEO who cost his employees part of their paychecks through a bad investment. Crucially, he either did this because (a) he intentionally wanted them to work harder for profits in the future, or (b) he simply made an unfortunate mistake. It’s unsurprising that people would assign the CEO more blame in the former condition. However, what might be surprising to many is that these perceptions of intent actually swayed how participants judged the impact of the situation. Participants saw the paycheck cut as “more damaging” to employees and their families in the latter scenario, even though the employees suffered the exact same objective financial loss in both cases.
And this is just one in a series of studies showing that when an act is considered intentional, evaluators of that act are motivated to essentially build a case against the perpetrator, and that includes viewing the act as more harmful than they would otherwise see it. Bad things happen, but really bad things happen intentionally.
The research suggests a few ways litigators ought to adapt their thinking on intent.
1. Look Beyond the Elements
The law teaches attorneys to focus on elements: If you touch first base, second base, third base, and home, that should be enough. When jurors are the umpires, however, that does not always count. In particular, jurors look at parties as moral agents, not just as causes and effects. They will scrutinize the power that parties have and the choices they make. When gross negligence, malice, or some other higher standard of liability is at issue, that means formally considering intent. In all other cases, it means informally looking at intent. Here as elsewhere, just encouraging jurors to follow the instructions is not enough. “Observers’ judgments of impacts will almost certainly be swayed by perceived intentions,” Tannenbaum writes, “so the sheer act of encouraging people to focus on the impacts (rather than the intentions) is not necessarily a good strategy, as those very perceptions of ‘impacts’ (and how severe they are) will already have been biased by presumed intentions.”
2. Conceive of Intent Broadly
A reductionist view of the law can limit intent to an admission from the party. Research shows it is more accurate that intent is inferred and frequently does not need to be admitted. As we’ve written before, that inference comes from a number of different places:
- Patterns: Actions consistent with past behavior are more likely to be intentional.
- Outcome: Worse outcomes are viewed as more intentional.
- Persistence: Repeated actions are seen as more intentional.
- Relationship: The context of the overall relationship between the actor and the target determines intent.
In addition, intent can also be discerned simply from having knowledge in advance of an event. Even divorced from a specific motivation, jurors believe the truism that “forewarned is forearmed.”
3. Make Intention a Central Part of Your Case Narrative
A shallow view of a trial story might see it as just a sequence of events: this happened, then this, then this. But that timeline-driven view of a case narrative leaves out the one critical plot element that drives every story: motive. Jurors, or any listeners, don’t just want to see the steps being taken by the parties, they want to see the motivations that move them around the board. Attorneys are sometimes constrained in speaking about motive, particularly when there is no direct evidence of it. But through placement, emphasis, and even rhetorical questions, you can nonetheless invite the jury to think about motivation on their own. And importantly, motives don’t just apply to the other party’s actions, but to your own as well. Focusing on the intentions behind your good acts makes them even more credible and important.
Seeing intentions, as well as impacts, means more than just focusing on both. It also means viewing them together based on the ways they mutually reinforce each other. “We must learn to understand our own cognitive biases,” Tannenbaum writes, “we can’t continue to treat intent and impact as if they are cognitively separate.”
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Other Posts on Intent:
- Get Inside the Black Box of “Intent:” A Note on the Tarek Mehanna Trial
- Treat Knowledge as Intent
- Don’t Be Defined By Bad Acts (Make Your Good Acts Intentional, and Your Good Intentions Actual)
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Ames, D.L., & Fiske, S.T. (2013). Intentional harms are worse, even when they’re not. Psychological Science, 24, 1755-1762.
Photo Credit: Minnesota Historical Society, Flickr Creative Commons