By: Dr. Ken Broda Bahm – 
Exactly what do people celebrate when they see a fitting result? Sometimes it is justice, and sometimes it includes a measure of payback or revenge as well. Just over a week ago, news from the Oval Office ignited jubilant celebrations in Times Square and many other parts of the country. Scenes of the rapture that greeted the death of Osama Bin Laden caused some observers to wonder at the civility of a response that might have seemed more appropriate for a sports victory, and even President Obama spoke about not wanting to “spike the football” in the aftermath. It is obviously a good thing that an evil and dangerous man is out of the picture, and not able to cause further harm. But that isn’t the only reason for the celebrations. Indeed, it is hard to imagine comparable fervor if we had received confirmation that Bin Laden died peacefully in his sleep. Part of what people are celebrating is the way he died, and specifically that a man of violence met a violent end. In other words, people are motivated not only by a just or fair result, but also by a result that appeals to a human desire for revenge.
My goal isn’t to criticize or to defend that response, but instead to note that it stems from a well-documented psychological tendency that applies not only to war and counter-terrorism, but also to all situations in which people are trying to right the scales. The idea that those who have caused harm should suffer harm is at the root of our criminal justice system (more so in practice than deterrence or rehabilitation), but the appeal of payback plays an important role for civil juries as well. Looking at revenge psychology carries some important implications for both civil plaintiffs and defendants.
The New York Times health section recently reviewed the research on a revenge motive as it relates to reactions to news of Bin Laden’s death, concluding that celebrating a death in this context is “ugly, maybe, but only human.” After all, not even the Munchkins begrudged themselves a few rounds of “Ding Dong the Witch is Dead.” But the larger point is that, particularly when people have strong emotions connected to an event, then news of a wrongdoer’s comeuppance can have a powerful effect, because it confirms our need to believe in a “just world.” That style of thinking can have a powerful impact on juries when it comes to the task of assigning damages. Psychologist, Dr. Edie Greene of the University of Colorado has pursued a long-term research program focusing on the ways jurors process damage claims, finding that even in the category of compensatory damages, jurors have a tendency to do more than just compensate. In a 2005 study, for example, Dr. Greene and a colleague (Smith & Greene, 2005) found that juries who heard and decided only a damages phase of a trial, gave smaller awards than jurors who heard evidence about the injuries (damages) and the defendant’s conduct (liability). In other words, when jurors know more about the nature of the behavior that leads to the damages, then the damages themselves seem greater, suggesting an element of punishment and not just compensation. While the law may attempt to segregate such punishment-oriented thinking into the category of punitive damages, the more human tendency is to see punishment as a factor in just about any damages decision.
This is an example of psychology coming into conflict with the rational model of the law. The latter would expect that jurors, without bias or passion, simply apply the law to the facts in order to reach a reasonable result. And sometimes we do see a jury or a mock jury with exactly that kind of administrative mindset (usually under the leadership of a strong Type A personality), but it is much more common to see jurors doing something entirely different with damages. They are not just trying to answer a legal question, but are instead trying to uphold a principle, send a message, balance the scales, or even exact a little revenge on behalf of a plaintiff. Indeed, that can be one of the benefits of watching a mock jury deliberate on damages: while the damage amounts themselves can be idiosyncratic rather than predictive, looking at what the mock jurors are trying to do with damages can be much more instructive.
When you are on the side that benefits from juror anger, usually but not always a plaintiff, then that is obviously good news. Greater emotional involvement will encourage jurors to appreciate the importance of their role, pay greater attention, scrutinize defenses more carefully, and award greater damages in the end. However, there are some practical and legal limits to how far you can push that appeal. Obviously, you don’t want to risk a judge’s perception that you are appealing to the jury’s passions. But more importantly, even when jurors are angry, they are also resistant to persuasion, and do not want to feel like they are being “played.” When the facts themselves are likely to lead to emotional involvement and even feelings of revenge against the other party, then less is more. Highlight the facts that support that anger, but don’t beat the drum too loudly. Jurors will trust a feeling much more when they arrive at it themselves.
When you are on the side that suffers from juror anger, usually but not always a defendant, then you will need not just a legal defense, but a strategy that accounts for that anger. While the approach needs to be tailored to the specific factors that might drive a revenge motive in your case, I would say that there are generally three parts to that strategy — A.R.T.:
Acknowledge that there may be anger on the part of jurors. That is not an admission, but is instead an attempt to identify with jurors’ concerns and meet them where they are.
Re-frame the controversy. Your opposing party has probably facilitated juror anger by placing the story within a frame that places fault on you. An alternate frame (e.g., mutual fault, or no fault) in this case is a precursor to persuasion.
Transition back to your most positive story. To allow anger to drain away, jurors need to hear about what you did well and where you are taking responsibility.
Put together, the approach might sound something like this:
Acknowledge: I can see how some of you might be angry that a tragedy like this has occurred, especially when you see in hindsight that it could have been prevented.
Re-frame: But this isn’t, as the plaintiff suggests, a story about a company that ignored warnings. Instead, you’ll see the fact of a clear warning, and a customer who decided to accept the risks.
Transition: At the center of this case is a product that was tested extensively, and met all regulations, and a company that warned of the inherent risks.
Some level of juror anger may be an inevitable part of the response to a tragic or unforeseen event, and in that context, there is a real chance that jurors will want damages to do more than just compensate the plaintiff. For those on the receiving end of that potential psychological motive for revenge, strategies that acknowledge and re-frame that motive can play an important role in cooling that anger. That can be critical because justice too can be a dish that is best served cold.
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Smith AC, & Greene E (2005). Conduct and its consequences: attempts at debiasing jury judgments. Law and human behavior, 29(5), 505-26 PMID: 16254740
Photo Credit: Josh Pesavento (broma), Flickr Creative Commons