By Dr. Ken Broda Bahm:
If a manufacturer rushes an untested new product to market, did they do it to realize a gain (let’s say to increase profits by expanding into a new market) or to prevent or mitigate a loss (maybe to protect the company against an economic downturn)? The difference in this case is not the act itself, nor necessarily the effects caused by the act. The difference is the way it is framed. We know that how we explain or contextualize an action shapes the judgments we make about it. For that reason, in litigation, choosing and developing the frame — as that frame applies to our own actions or the other party’s actions – can be a key part of the strategy.
For example, a new study (Choshen-Hillel, Gutttel, Harel, 2022) looked at alternate frames in a number of negligence scenarios. Focusing on a trial context, the researchers looked at whether a defendant’s actions were framed as avoiding loss or seeking gain, and they also looked at the efficiency of the action, in terms of whether the loss or gain at stake was greater or less than the harm caused by the negligence. Looking at both mock juror results in deciding a case as well as mock-party decisions regarding what to offer in settlement, they found that the “Gain Frame” results in greater perceived negligence, while the “Loss Frame” results in less. “Participants in the role of jurors are less likely to attribute negligence when injurers’ behavior is motivated by a desire to prevent a loss rather than by a desire to obtain a gain.” They also found that participants taking the roles of the party offered a greater settlement in the gain scenario, and a lesser settlement under loss. This is consistent with what social scientists have called “loss aversion,” or the tendency to value avoiding harms more than attaining gains, which is a bias that we impose on both ourselves and others. In this post, I will take a brief look at the study and its implications.
The Research: The Gain Frame Results in Greater Perceived Negligence
The research team conducted five studies, following a robust methodology in varying the samples and the conditions. In the first study, for example, they looked liability of a farmer who sprayed his date planation and caused harm to other plantations (interestingly I have long-term experience with nearly identical cases). In one framing, the farmer was spraying to avoid a loss (by fighting a disease), while in the other framing, he was doing it to gain (by doubling production from existing trees). In some scenarios the production the farmer gained or retained was greater than the neighbors’ loss, and in other scenarios, it was less than the loss.
The researchers also ran other studies, looking at retailers rather than farmers, and included one study focusing on contributory negligence by the Plaintiff – in that case, the owners of an ice cream factory who lost production after choosing to work through a known risk of a power disruption.
Consistently across the conditions, the researchers found that negligence was perceived to be greater when actions were taken to realize a gain rather than to avoid a loss. Greater negligence was also seen when the action was inefficient rather than efficient (causing more net harm than benefit), and that this efficiency matters more in the loss frame than in the gain frame.
The Implications: Find Your Frame…
Naturally, your story will be constrained by the facts. But working within the evidence, you still have a fair amount of latitude in what gets played-up or played-down. How you apply the results of this study depends on whether you are trying to develop a case for or against negligence.
When Trying to Establish Negligence: The Gain Frame
If you are a plaintiff making a negligence case, or a defendant emphasizing the contributory negligence on the plaintiff’s side, the clear implication is to frame the other side’s decisions as motivated by gain. Litigants are, of course, no stranger to this idea, frequently focusing on the “greed” of the other side. At the same time, both sides could think more broadly about the kinds of advantages the other side is trying to realize. For example, rather than simply being careless, perhaps a contributorily negligent plaintiff is trying to gain a little bit of time, or trying to gain a bit of their own enjoyment, or trying to gain a better social perception by skipping the precautions.
When Defending on Negligence: The Loss Frame
When either side is trying to play down their own negligence, the study suggests that it is better to frame the decision in terms of loss-avoidance, and in terms of efficiency. The product manufacturer, for example, isn’t acting on greed as much as they’re acting to retain or to protect existing customers. Ultimately, a profit motive might be inescapable, but the company’s actions can still be characterized as broadly aiming to preserve some of the broader values that the company and its customers depend on. For example, a company that produces a product with a known risk might choose the frame of emphasizing that they doing so to avoid the loss of consumer freedom.
The frame is just one of the rhetorical factors that extend beyond the simple facts and law of the case. As you think about the best ways to convince, part of your focus should be on picking the right frame.
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Other Posts on Negligence Determinations:
- Treat the “Reasonable Person,” Not as an Abstraction, but as an Average
- Address the ‘My House, My Responsibility’ Analogy
- Identify the Four Tracks of Personal Responsibility
Choshen‐Hillel, S., Guttel, E., & Harel, A. (2022). Framing negligence. Journal of Empirical Legal Studies.
Image credit: Shutterstock, used under license