I have written frequently about the importance of a message of betrayal in negligence cases, especially medical malpractice. But, I continually see lawyers presenting their cases as a mistake. They present a case involving an error, a mistake or a negligent act and then expect the jury to follow the law. But, jurors are driven by their value systems irrespective of the jury instructions. When a case of negligence is tried to a jury of conservative people, too often the result is a compromise verdict or a defense verdict.
When trying cases to conservative juries successfully, the story must be one of wrong motive and resulting harm. A story of decisions that violate a duty owed and therefore a breach of trust. A story of trust and betrayal motivates punishment. A story about mistake motivates Biblical forgiveness. Stories about betrayal have punishment attached to them. Stories about mistakes have forgiveness attached to them. A story of betrayal makes the defenses appear to be lame excuses and a refusal to accept responsibility for one’s wrongful actions. Look for the betrayal evidence in your cases.
There are two primary kinds of betrayal: (1) a situation where two honest people enter into a trusting relationship and then one betrays the other and (2) a situation where one person in good faith enters into a trusting relationship with someone who is dishonest and uses deception to win trust but then betrays it. Both situations will stimulate an inducement to punish the action. However, of the two, the most egregious breach of trust involves the second situation and produces the greatest need to punish by the jury verdict amount.
This concept is particularly important in cases involving conservative jurors. With jurors who have a Biblical frame of values, the concept of punishment and forgiveness is inherent in their unconscious thinking. They have a Biblical like belief that we are obligated to forgive mistakes and a strong belief in punishment for sin or wrongdoing. Betrayal is completely different than mistake. Betrayal is a deliberate choice and not an accidental negligent act. Betrayal, therefore requires punishment. Mistakes on the other hand are seen as something that can happen to anyone and call for forgiveness. While some remedy for the harm caused by a mistake may be called for, it must not be a punishment, but an act of forgiveness. That’s why framing a case as an act of betrayal has a completely different unconscious impact then one presented as a negligent mistake.
The formula for motivating the jury to feel anger about the situation, is to show that the actor knew there was a danger of harm to another, but they did it anyway. If they did it to make money or for selfish motives there is an even more powerful inducement to punish. The company that produces a defective product while knowing of the danger, but continues to sell it anyway, in order to make a profit has committed a breach of trust to the buying public as a betrayal of the duty to act safely. There is no forgiveness for that conduct. Punishment is required. The most compelling story involving a betrayal of trust is one that involves “they knew it was dangerous and they intentionally hid it so they could make money.” Finding the betrayal in actions is the key to compelling cases.
The Seattle daily newspaper ran articles, earlier this year, regarding the practice at one major hospital where a surgeon had double booked surgeries. He had surrogates doing surgeries on his patients without telling them and falsifying records as if he had done the entire surgery. He did it in order to make more money. The paper claimed the hospital knew about it, but said nothing because of the profit they enjoyed. That’s a classic betrayal story. It is a story of a gross betrayal of trust between doctor and patient and between hospital and patient because of greed. That is a completely different situation than a slip of the knife which results in injury during surgery because that is an accidental mistake. On the other hand, if you show the slip of the knife was because the doctor was hurrying for some selfish or financial reason, it becomes a betrayal of trust. That’s the difference between mistake and betrayal and the reason why framing cases as betrayal makes such an important difference in the thinking of the jury about the right verdict.
We create a story of betrayal when we focus on the decision and not the event. When we have an event such as a product that injures there us also a story about why the product was sold even though defective. It’s the story behind the event which explains the reasons why something happened where betrayal is exposed. When we focus only on the negligent act we are focusing on a mistake that was made. When we focus on why the mistake was made, we are focusing on motives and that’s where betrayal is found. For that reason, in our discovery and depositions, it is important to learn the reasons behind actions and explanations for conduct rather than only prove the negligent act. The reason for the mistake is more important than the mistake alone.
Another important aspect of framing actions as betrayal is the fact that it impacts the primitive brain which is primarily concerned with survival. Actions which represent a potential threat automatically and unconsciously activate the primitive brain into action. It immediately begins a “fight or flight” analysis of self protection and all done unconsciously. Betrayal which injures or damages another, almost always has implications for the public generally. Actions which have potential consequences for the jurors or their families or community represent a threat to the primitive brain. It unconsciously reacts to protect and to stop the potential harm by punishing the act to deter it from occurring again.
The idea of preventing a threat to the rest of the “tribe” in addition to the plaintiff is a strong unconscious jury motivator. As a result, when we tell a story of betrayal of trust there is an unconscious reaction of anger and punishment. If it is perceived as a potential threat to the jury, their families or community there is an additional unconscious reaction to prevent it from happening again through the punishment imposed by the jury verdict. As the lawyer for your client, remember that leaders are people who don’t stand up in order to tell stories of mistakes. Leaders are people who tell stories of betrayal and offer a way to punish the wrong as well as deter it from happening again.