We are back from Europe and while suffering from jet leg here are some thoughts you might want to consider.
Jurors construct their own story out of the evidence they are given, evaluate that story and then select an outcome that best fits their version of the facts. They apply their own values as well as their perception of the community attitudes in coming to their decision. “Your group’s values are threatened by actions like this. You or your loved ones could be harmed if this is allowed to happen,.” Juries will use these factors in deciding if the the proposed damages are low or high.
So, given this process, what about moral outrage effecting verdicts? Liana Peter-Hagene has written an interesting article The Emotional Components of Moral Outrage and Their Effect on Mock Juror Verdicts. While the article is focused on criminal cases it has many consistencies with what is taught by Gerry Spence regarding the significance of betrayal in civil cases. As the article points out, generally speaking, the more moral outrage jurors feel the more harm they perceive was done and the more punishment necessary to counter the harm and restore the balance of justice.
In civil cases just proving a mistake was made isn’t enough for a substantial verdict and in medical malpractice cases is seldom enough to win the case. We forgive mistakes. What we don’t forgive are actions that require punishment. In fact, conservative jurors are far more likely to impose more punishment where they feel moral outrage than are liberal jurors. When jurors see behavior which they perceive as moral transgressions, they react with moral outrage. Laws are supposed to represent what society views as right and wrong. When broken there is a need to punish. When conduct amounts to a betrayal of trust and of what is right there is a corresponding need to punish. What is clear is that the legal system’s ideal that judgments are based only on rational thought and without emotion is simply contrary to ordinary human nature and impossible to achieve.
Aristotle taught that pathos i.e. emotion, was a crucial component of persuasive speech. Moral judgments are the product of non conscious automatic intuitive processing. Only after that does conscious reasoning take place to justify whatever has been presented to the conscious as a non biased objective decision. Given this truth plaintiff lawyers should always be more concerned in discovery for the reasons behind the mistake that was made than proving the mistake exists. It is not just showing the car went through a red light, anyone can make that mistake – it is showing that the reason was the driver was texting, which is a total betrayal of the trust we put in other drivers to drive with reasonable care for our safety.
We lawyers are trained to look for the evidence which shows a negligent act happened so we tend to quit when we have exhausted that area of inquiry. What we must always do is to to explore for possible moral outrage and facts of betrayal behind the mistake.