I have written in this blog on many occasions about the scientific research that the motive and reasons behind the conduct which caused the injury to your client is far more important than the facts about the negligent conduct. Proving the negligence is not the same thing as going behind the conduct and proving why the conduct took place. The doctor in a hurry is not the same case as the doctor failed to meet the standard of care in doing surgery. The question of why something happened is far more significant than the proof of the negligent actions itself.
Proof of wrong motives and evil intent are what really drive the verdict in a plaintiffs injury case. This is particularly true in malpractice cases. This subject has been discussed in one of my favorite sources of information The Jury Expert. www.thejuryexpert.com. The last publication featured an article “if it feels bad to me, it’s wrong for you: the role of emotions in evaluating harmful acts” http://www.thejuryexpert.com/2014/08/if-it-feels-bad-to-me-its-wrong-for-you-the-role-of-emotions-in-evaluating-harmful-acts/ Their research and conclusions concur with the concept I advocate. In general, the article points out, there is a remarkable body of evidence which indicates that our minds are divided between reason and emotion, which together shape the way we think and behave. On a rational basis, all else being equal, we tend to favor whatever course of action leads to the greatest amount of benefit in the long run. When emotions are guiding our thinking, we are more likely to utilize a value or moral standard in our thinking and decisions. The two must both be in balance together for decision making.
Studies indicate that when we are judging other people’s conduct we tend to imagine what it would feel like to perform the behavior ourselves. Our reviewing the conduct as if we were involved produces a reaction. In some cases, this creates a feeling of aversion which dictates a judgment that the behavior was wrong: “if it feels bad to me to do it, it’s wrong for you to do it.” This then becomes the measuring stick in our minds for evaluating the conduct of other people.
This raises questions regarding how attorneys attempt to influence jurors decisions. The normal inclination is to focus attention on the victims injuries and damages. Lawyers have traditionally focused attention upon the innocent victim or the injured plaintiff in an effort to create empathy. However research indicates that this is not the strongest motivator. The dominant factor in motivating the average juror is focus upon the defendants actions themselves and whether the jurors would feel justified in performing those actions themselves.
Furthermore, focusing upon injury for sympathy is more likely to have a negative affect upon the jurors. They are already programed to believe the message of tort reform and are prepared to guard against “fast talking lawyers” peddling sympathy. Research would indicate that: “in the case presentation process, sympathy and victim –focus backfires.” On the other hand, focusing upon the defendant’s actions and especially wrong conduct or motives explaining them, creates a story in the jurors minds involving the question of whether they would have done the same thing. The article says: “Adding in the current study results, there are more reasons to say “no” to the old-style of (plaintiff attorney) presentation (of focusing upon injuries and sympathy).”
There is an understandable reluctance to put the defendant at the center of the story. However, since the key factor is the jurors contemplation of whether they would perform the same behavior themselves, plaintiffs should set the stage for jurors to try on that decision for themselves. If jurors believe they would never have acted as the defendant did, and if that action would feel wrong to them, they’ll be primed to condemn it and to believe that it had compensable consequences. This also stimulates a duty to punish wrongs which most people, conservatives in particular, unconsciously feel.
Furthermore, there an added benefit from focusing upon the defendant that studies show results from this approach. When we are aware there has been an injury or accident, people tend to review stories of conduct looking for reasons why it should not have happened or that it was not an accident they would have allowed happen. We should always start our case with the defendant’s conduct and not the plaintiff’s. If the story starts with the plaintiff, the jurors immediately began the questioning process about plaintiff’s actions. When it starts with the defendant’s conduct the same process happens which is beneficial to plaintiff.
As the article points out this approach has a “what would you do?” aspect to it which we cannot embrace directly without violating the “Golden rule” prohibition. However, centering the story on the decision-making and correctness on the part of the defendant serves as an invitation for the jurors to assume that rule mentally. As the article points out: “in addition, in voir dire, attorneys have a legitimate right to ask about relevant attitudes and experiences which inquiries get the jurors started thinking about the actions from their own perspective.”
We need to start our case in voir dire talking about the motives and wrong doing of the defendant’s conduct. All of our cases should have such a theme: “the case of the sleepy truck driver, the case of doctor in a hurry or the case of the cell phone collision” but one that focuses on motive and wrongful conduct. The article says: “the bottom line is that as the research on moral judgment and a number of related fields continues to blossom, practical litigators need to keep pace. That might mean that the death of the idea that there is a time honored, tried-and-true way to try cases” by focusing on the plaintiff’s injuries and damages as a motivator for a jury verdictl