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Why Do Jurors Blame the Victim?
from Publications
by crainbrogdon
Originally posted on Trial Magazine, 2003. Written by Attorney Quentin Brogdon.
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In his book The Right Stuff, Tom Wolfe describes the seemingly callous attitude of military pilots toward fellow pilots killed during test flights in the lain 1950s:
[H]e crashed and was burned beyond recognition... [The other pilots] shook their heads and said it was a damned shame, but he should have known better than to wait so long before lowering the flaps.... [A]nother good friend of theirs went up in an F-4.... He reached 20,000 feet and then nosed aver and dove straight into Chesapeake Bay.... [The other pilots] were incredulous. How could anybody fail to check his hose connections? And how could anybody be in such pool condition as to pass out that quickly from hypoxia? ... There are no accidents and no fatal flaws in the machines: there are only pilots with the wrong stuff (I.e., blind fate can't kill me.) When Bud Jennings crashed and burned ... [a]ll agreed that [he] was a good guy and a good pilot, but his epitaph... was: How could he have been so stupid? (1)
Why would Wolfe's test pilots react so unsympathetically? One explanation is that they were using the coping mechanism that psychologists label defensive attribution: blaming the victim in order to distance themselves psychologically from the victim and the chances of a similar fate. (2) The mechanism is not limited to Wolfe's test pilots. Many of us use defensive attribution when we read about the victim of a crime and ask ourselves, "What was that guy doing out in that part of town so late at night?" Jurors certainly can use defensive attribution, too, and because it can skew the jury's already less than completely objective deliberation, (3) trial attorneys must fully understand this phenomenon.
Theory and Findings
We generally have a need to believe in a just, stable, and predictable world. When an innocent victim suffers, it challenges and threatens this belief. A cognitive dissonance can be created in which two psychologically inconsistent beliefs are held simultaneously. Because the dissonance is unpleasant, we are strongly motivated to reduce it. Defensive attribution is one way to do it. We may reduce the dissonance between the belief in a just world and the suffering of an innocent victim by derogating the victim, reinterpreting the injury as victim-caused, or minimizing the extent of the injury. This reduces our fear that we could suffer a similar fate. (4)
A growing body of research confirms that jurors who are similar to, or who identify with, the plaintiff paradoxically tend to place more blame on him or her than do jurors who are not similar. This is called the identification effect. (5) It flies in the face of the conventional wisdom that jurors who are similar to the plaintiff are often less likely to
blame the plaintiff and more likely to find in his or her favor.
For example, in one hypothetical case study involving a five-year-old child who was injured in a paint store, the mock jurors who were most critical of the boy's mother for failing to watch her son were women, particularly those with children. In another hypothetical case involving a workplace construction accident, the mock juror who was most critical of the plaintiff for failing to use all available safety equipment was a man who had done construction work in the past and frankly admitted that he had periodically failed to use safety equipment. (6)
Likewise, in sexual harassment cases, potential jurors who have suffered that kind of treatment are less inclined to find for the plaintiff and more inclined to read complexity into the case by speculating about the backgrounds, behavior, and motives of both parties. (7)
Research has shown that jurors who sustained injuries similar to the plaintiff's but did not file suit are more likely to blame the plaintiff than other jurors are. A 1991 RAND Corp. study found that 87 out of every 100 people who we're accidentally injured did not try to obtain compensation, and other studies have made similar findings. This pattern also applies to medical malpractice cases: Several studies have found that many patients injured because of medical negligence do not seek compensation. (8)
All these studies confirm that, in any given case, many potential jurors may blame the plaintiff because the jurors had also been injured but did not file suit.
Research has also detected a severity effect: The more severe the accident and/ or the harm, the greater the jurors' need to blame the victim in order to preserve the belief that they can avoid a similar fate. (9) In one interesting set of experiments, mock jurors were given summaries of four accident cases in which key sentences were varied to manipulate facts concerning outcome severity and victim blameworthiness.
For example, outcome severity was manipulated in one case by changing "Mr. R. dies a week later from the explosion," to "Mr. R. is bruised in the explosion," and victim blameworthiness was manipulated by changing "Mr. P. is attempting to cross the street, although the traffic light is red for pedestrians," to "Mr. P. is standing at the corner waiting for the light to change." The mock jurors considered the plaintiff more at fault given both a highly blameworthy victim and a severe outcome. They were more likely to feel sympathy for the victim when the damage was severe and the victim was not to blame, sadness when the damage was severe and the victim bore relatively little blame, and anger at and disgust with the plaintiff when he or she was more blameworthy. (10)
The researchers concluded that mock jurors made decisions about fault and damages by considering outcome severity and blameworthiness when they were not legally relevant, or sometimes by ignoring those factors when they were legally relevant, and that their judgments on fault and damages showed "a fairly consistent antiplaintiff effect." (11)
More specifically, they noted that mock jurors did not focus exclusively on the victim's blameworthiness in attributing fault to him or her. Instead, they apportioned significantly greater fault to the victim, all else being equal, when the injuries were severe. Contrary to the law, the mock jurors hardly discounted damages for the plaintiff's blameworthiness when the consequences were minor, but they discounted the damages disproportionately when the injuries were severe. They double discounted damages by improperly considering both the victim's blameworthiness and the severity of the outcome. One possible explanation is that the mock jurors used hindsight bias--knowing, based on hindsight,
that the plaintiff might die, the jurors attributed this knowledge to the plaintiff and were compelled to assign greater blame. (12)
Implications for Trial Strategy
These findings imply that during voir dire plaintiff counsel must determine which potential jurors fear experiencing (or have experienced) an accident similar to the victim's. In a case involving an allegedly defective road design, for example, attorneys on both sides would want to find jurors who might fear facing a similar situation; travel on the same road as the plaintiff and at the same time of night; have driving habits similar to the plaintiff's; or drive at the same speed, in the same manner, or in similar vehicles. (13)
In light of defensive attribution, what motivates jurors to find for the plaintiff? It turns out that anger at the defendant is a much more powerful motivator than sympathy for the plaintiff: Focus group researchers have discovered a consistent pattern: When jurors start by focusing on the plaintiff, they blame the plaintiff for the accident. But if they start by focusing on what the defendant did wrong, they place much less blame on the plaintiff. This may be explained by the availability bias: As people struggle to understand something new, they focus on the first information they are given to understand what occurred and why, then fill in the blanks using information they receive later. (14)
A trial presentation technique called sequencing begins with the defendant's conduct. It puts the jurors' focus on the defendant's blameworthiness, because they start examining the plaintiff's behavior only after they have already blamed the defendant. Casting the defendant as the villain early on makes jurors angry at the defendant and makes them want to take action. The plaintiff's appeal to sympathy, on the other hand, is often futile because it may trigger defensive attribution: Sympathy makes people feel both powerless and vulnerable. Because it makes them feel vulnerable, they want to find a reason why what happened to the plaintiff would never happen to them--often by finding something the plaintiff did wrong. (15)
In one actual case that was tried twice, the plaintiff lawyer appealed to sympathy in the first trial and to anger in the second. In the first trial, the lawyer began by showing the jury a day-in-the-life film of his client, a boy who had lost most of his mental and physical faculties. The film showed him drooling and having his skull drained with a needle. The jurors responded with complete indifference. After a mistrial, the lawyer began with the defendant doctor, followed by the plaintiff expert, the boy's parents, a friend of the boy's, and then the boy himself--in his wheelchair-but only briefly. This time, the jury awarded substantial damages. (16)
The facts of a particular case may also determine how readily the jurors attribute blame to the plaintiff. Generally, jurors tend to find victims at least partially responsible for their injuries when they retained a substantial amount of control over what happened. When plaintiffs retained little control, jurors are more reluctant to blame the. (17) Some researchers have found the least antiplaintiff bias in products liability and medical malpractice cases. That may be because jurors tend to hold responsible the party they can most easily imagine acting differently. In products and medical malpractice cases, it is often easier than in other types of cases to portray plaintiffs as not in control and not possessing superior knowledge, and defendants as in control and possessing superior knowledge. (18)
The theory of defensive attribution, standing alone, cannot explain all instances of jurors' antiplaintiff bias. Research has found deepseated bias based on juror perceptions that most plaintiffs do not have legitimate grievances; "the pivotal American ethic of individualism" and individual responsibility; and juror perceptions, fed by media reports
and sometimes inaccurate anecdotal evidence, of a "litigation explosion." (19) Further, antiplaintiff sentiment is just one of the biases that come into play in the deliberation room. There are anti-corporate defendant biases and some pro-plaintiff biases at work as well. (20)
Noted jury researcher Neal Feigenson maintains that, more often than not, jurors strive for total justice. He says they do so in five related senses:
They strive to reach a result that squares or balances the account between the litigants and leaves no loose ends. They use all information, even inadmissible evidence, that they deem relevant to their decision. They make holistic, intuitive decisions, rather than separating out discrete steps or elements such as fault and causation, as required by law. They gravitate toward decisions that make them feel good, and they seek to attain the emotional completeness that follows a well-resolved story. They want to appear reasonable and open to persuasion because they need to feel that they were fair and followed procedural justice during their deliberations. (21)
Defensive attribution, then, is just one piece in the complex puzzle of the jury deliberation process. It cannot by itself explain all instances of antiplaintiff bias, and it is just one of several conflicting and dynamic forces at work in the deliberation room. It has the potential, however, to skew jurors' reactions to suffering and misfortune, just as it skewed the reactions of Wolfe's test pilots. Defensive attribution is therefore a potentially decisive force that trial attorneys ignore at their peril.
Notes
(1.) TOM WOLFE, THE RIGHT STUFF 12-14; 3435 (1979). (2.) Ronald Beeton, The Limits of Sympathy: Denial, Attribution, and Blame Among Jurors, ASSOC. BUS. LAW. REP., July 2001, at 3-4.
(3.) See, e.g., NEAL FEIGENSON, LEGAL BLAME: HOW JURORS THINK AND TALK ABOUT ACCIDENTS 46, 51, 57, 62 (2000) [hereinafter LEGAL BLAME]; DONALD VINSON, JURY PERSUASION: PSYCHOLOGICAL STRATEGIES AND TRIAL TECHNIQUES 90-96 (1993); RICHARD WAITES, COURTROOM PSYCHOLOGY AND TRIAL ADVOCACY [subsection] 3.02, 4.06 (2003).
(4.) FEIGENSON, LEGAL BLAME, supra note 3, at 85, 107; VALERIE HANS, BUSINESS ON TRIAL: THE CIVIL JURY AND CORPORATE RESPONSIBILITY 40 (2000); VINSON, supra note 3, at 97-98.
(5.) See, e.g., FEIGENSON, LEGAL BLAME, supra note 3, at 85; HANS, supra note 4, at 40; VINSON, supra note 3, at 97-98.
(6.) HANS, supra note 4, at 25-26, 31.
(7.) Beeton, supra note 2, at 5.
(8.) HANS, supra note 4, at 31.
(9.) Also referred to as an "intensity factor." See, e.g., VINSON, supra note 3, at 98; see also FEIGENSON, LEGAL BLAME supra note 3, at 85; Phillip G. Peters Jr., Hindsight Bias and Tort Liability: Avoiding Premature Conclusions, 31 ARIZ. ST. L.J. 1277, 1295 (1999).
(10.) Neal Feigenson et al., Effect of Blameworthiness and Outcome Severity on Attributions of Responsibility and Damage Awards in Comparative Negligence Cases, 21 LAW & HUM. BEHAV. 597, 599 (1997).
(11.) Id. at 608.
(12.) Id. at 601; see also DAVID BALL, DAVID BALL ON DAMAGES 15 (2001).
(13.) VINSON, supra note 3, 101.
(14.) Elaine McArdle, Plaintiffs Should Always Start by Attacking the Defendant, 99 L.W.U.S.A. 960 (1999).
(15.) Id.
(16.) Id.
(17.) HANS, supra note 4, at 46.
(18.) FEIGENSON, LEGAL BLAME, supra note 3, at 103. But see RICHARD WAITES, COURTROOM PSYCHOLOGY AND TRIAL ADVOCACY 121 (2003) ("[I]t is more common in medical malpractice cases than in other types of personal injury cases for a jury to find that the plaintiff was contributorily negligent. Jurors often believe that a medical malpractice plaintiff assumed the risk by consenting to elective surgery or contributed to the problem in some other way.")
(19.) See, e.g., HANS, supra note 4, at 35.
(20.) FEIGENSON, LEGAL BLAME, supra note 3, at 98-100.
(21.) Id.
