By Dr. Ken Broda-Bahm:
I will admit up front that the title for this one might sound like someone trying to weasel out of something: Trying to gain the psychological benefit of “stepping up” without the legal liability that many might see as going along with that. And, it must be said, there’s a real risk that a jury will see it as such. At the same time, there is an important distinction to be made. Legal liability is a narrow concept, and that is intentional. The broader notion of “responsibility” is not the same thing in all situations. For that reason, civil defendants might want to devote some thought and craft some language focusing on what that distinction could mean in the context of a specific case.
In the book Nuclear Verdicts: Defending Justice for All, attorney Robert Tyson emphasizes the need to address a jury’s motivation to “send a message” through a large damages award, and that this message often requires credibly presenting oneself as the party that embraces relevant responsibility rather than ducking it. But the finer point is that this means asking jurors to distinguish between the broad responsibility in using what power you have to avoid or address bad outcomes and the narrower legal liability that is tied to the instructions. In this post, my goal is to play out that dissection in a few contexts and to share some ways to make it clearer for jurors.
If you’ve watched a few mock trials, you may know that it is very common for mock jurors to miss the nuance, with a “They admitted it!” reaction potentially being tied to any acknowledgement from the defense side, or even to a conditional argument on an alternate damages amount. The message needs to be delivered not just once, but repeatedly as part of a trial theme. That is why it helps for defendants to have a comprehensive and tested message. The success of any message will depend on the specifics of your case and venue, but in the remaining sections of this post, I’ll suggest four types of message, or levers to draw a distinction — all efforts to say we’re responsible “for this, but not that.”
The Control Lever (Responsibility for what you can control, not for what you can’t)
The first common way to distinguish between a responsibility (that you are accepting) and a liability (that you are denying) is to focus on what is within your power, and to appeal to the commonsense notion that you embrace the ability to control what is in your sphere, but that the factors that the plaintiff is trying to turn into liability are outside that sphere:
When Smithco designs a product like this, we take responsibility for a vast array of factors: testing, design, manufacture, quality control, and more. We know we will be held responsible for all of those factors, and we want that responsibility. But there is one thing we cannot fully control, and that is the choices that an individual makes when using this product improperly.
The Time Lever (Responsibility for what we know now, not for what we didn’t know then)
A second lever of distinction is to focus on time. While disabusing jurors of hindsight can be notoriously difficult to do, in some cases the effort to separate past from present knowledge is essential to the liability defense. To reinforce the difference, a defendant can embrace what is known now through hindsight, while separating that from the constructive knowledge at the time that would have created legal liability:
At this point, we know what illness Ms. Johnson had, and we know that due to the benefit of one thing: hindsight. And, of course, we will use that knowledge when it comes to her continuing care. We will even use that knowledge when it comes to the care of other patients, and when it comes to looking at our practices going forward. But one thing we can’t use that present knowledge for is a decision in the past. Limited to what was known then, we can responsibly only order the tests that are indicated by the symptoms at the time, and not the tests that we only now know might have helped.
The Legal Lever (Responsibility for a practical error, not for legal liability)
A third lever appeals to the notion that not every mistake, and not every wish to have done something differently translates into liability since the legal standard for civil liability is purposefully narrow. Defendants can agree with what might be the inescapable conclusion that “we could have done better” without necessarily conceding specific liability:
When we entered a contract with Bigco, we weren’t blind to the risks. We knew that we had to ask for strict guarantees, and we did. In hindsight, we were still too trusting, and some of those who negotiated the deal for us still let personal relationships overpower legal considerations. We could have done a better job of protecting ourselves. We acknowledge that, and you can bet the company will take greater care in the future. But none of that changes the fact that Bigco was the party who breached first — by the time we left the deal, there was no contract left to breach.
The Policy Lever (Responsibility for policies, not necessarily for personnel)
While in some cases the concept of agency locks in the legal conclusion that the responsibilities of personnel are absorbed by the company, in other cases that won’t be true. Where there are grounds to distinguish, companies may need to emphasize that the systems the company set up do work, but unfortunately individual irresponsibility caused those systems to not be followed in this case:
This school is committed to creating a safe environment for kids. That means comprehensive background checks for all adults coming in contact with kids. That means clear policies forbidding inappropriate contact and referring issues to law enforcement. That means clear requirements for adults to be mandated reporters whenever they see something legitimately suspicious. The school takes responsibility for all of that, and it is a big responsibility. We don’t shy away from that responsibility, we embrace it. What the school can’t take responsibility for, though, is when a person chooses to commit a crime, and when that person unfortunately succeeds in keeping their crime a secret.
These are a few of the most essential ways of separating responsibility from liability, but there are surely others. There may even be ways of drawing that distinction that are completely unique to your case. Based on the traditions and training of many defense attorneys, the reaction to some of these messages might be, “Why admit anything?” That tack might appeal to a logical motivation to make the target on your back as small as possible. But increasingly in an age of nuclear verdicts, an “admit nothing” approach does not appeal to jurors’ psychological motivation to reward good behavior and to punish bad behavior. To avoid being on the latter end of that stick, defendants should devote serious thought to what levels of responsibility they can safely adopt in the context of a specific case.
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Other Posts on Responsibility:
- Address the ‘My House, My Responsibility’ Analogy
- Identify the Four Tracks of Personal Responsibility
- Clothe Responsibility in Action, Not Inaction
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