ABA Journal Blawg 100!
We Participate In:
That would never happen to me!
We invest a lot of effort to believe we are safe. We see it in mock jurors routinely. They find ways to question the actions of injured parties not realizing (or simply not admitting) that we see things differently when we know the outcome than we do in the moment. It’s called hindsight bias. It’s one of the most common thinking styles we see in pre-trial research. But these sorts of erroneous, “I am really safe” thinking errors certainly would not happen to those confronted with life and death decisions every day!
Or perhaps they do. Police officers are often first on the scene of motor vehicle accidents involving fatalities. And we are barraged with constant messages to “buckle up” and the statistics that more than 50% of those who die in motor vehicle accidents are not wearing safety belts. Yet many police officers killed in line-of-duty car crashes are not wearing seat belts. They have “good reasons” for not doing so—like they want to get out of the car fast, or control violent prisoners, or perhaps they don’t want to wrinkle their uniforms… It really doesn’t make sense. “Click it or ticket” doesn’t apply to the police themselves evidently.
The point is that all of us find ways to talk ourselves out of doing things or thinking things that threaten our sense of safety. The fears caused by a sense of threat to our safety are outlined by terror management theory. In litigation advocacy, you have to figure out if there are aspects of your story that trigger fears of vulnerability and thus activate the “that would never happen to me” coping mechanism.
Sometimes, it’s easy to see. We’ve worked on wrongful death cases where people were killed in horrible and painful ways. That was a simple relationship “This story will scare people”. The Plaintiff case strategy needs to include consideration of how people will try to invent ways in which they wouldn’t have been harmed as the plaintiff was, because of hindsight awareness. The Defendant case strategy needs to be one of obviousness and inevitability due to factors unrelated to the alleged misconduct.
Other times, it isn’t so easy. Last year, we worked on an investment case where the plaintiff attempted to hold the defendant responsible for the deceptive actions of a third party. So they told their story AS IF the third party behavior was the responsibility of the defendant. Despite evidence and facts supporting the defense, the plaintiff prevailed. The jurors were frightened (as the economy began to slide) by the idea that a third party (who happened to be very, very wealthy and Middle Eastern) could manipulate a sales contract and decimate retirement savings of investors—and they wanted to hold “someone” accountable. Since the third party was not part of the suit, their only option was the defendant.
You have to find out when (especially when it is unexpected) threats to jurors’ sense of security/safety will have unexpected (and potentially very, very expensive) impact on case outcome. What we’ve learned over the years is that you never know when fears about security will raise their (decision-making effecting) heads.
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[...] post was written by Rita Handrich: "We invest a lot of effort to believe we are safe. We see it in mock jurors routinely. They find [...]
That would never happen to me — juror mindsets which influence their decisions http://bit.ly/acUEkj
Put it in the jurors' backyards. RT @KeeneTrial: New blog post: That would never happen to me! http://bit.ly/9kONy4