Our mock jurors want to do the right thing. They want to make the world a better place and consider what is fair and what is right, and what is illegal or legal. Sometimes they are angry enough to punish. Other times they are so disgusted with both parties, they would like to throw up their hands and storm off. And there are the times when they listen attentively but don’t find either story particularly riveting. They want to care, but not every story engages them as first presented. Those times are often the most frustrating and yet, the most useful for honing an effective trial strategy. By hearing why jurors don’t care (or perhaps what they would need to hear in order to care) we are often able to help craft a new case narrative that actually is riveting.

So what is it that makes us see a story as unfair? Is there a way to tell it right the first time and then just have to tweak rather than totally starting over after a whipping in pre-trial research? There is actually research on this question–with, naturally, two competing hypotheses.

Some researchers say that our desire to punish is simply a wish for revenge. Something in a situation makes us desire revenge and so we punish.

Others say our desire to punish is really driven by the consequences of the offense. We want to see if the offender is better off after the offense than the victim.

While interesting to some, these hypotheses don’t really tell us what makes people see a situation as “unfair”. But fear not, reader, researchers publishing in Biology Letters have teased out the answer to what really leads us to see a situation as “unfair”.

Researchers had participants (real people, not just undergraduate students) play games where (in some conditions) they simply could not win, while in others they would come out equal to their partner, and in others they could come out ahead. While they were allowed to punish other players for cheating (which was allowed with a consequence)–the setup was such that a player assigned to a certain condition would always end up with less money than their partner. [The Economist has a longer explanation/description of how the study was run.] The researchers wondered whether mere cheating was enough for punishment or if there would have to be an inequity such that the cheater ended up with more than the victim.

And as it turned out–we care more about inequity than “mere” wrong-doing. That is, if you cheat but it doesn’t hurt me financially (in this situation), then that’s more okay by me than if you cheat and it results in me getting less than I believe I deserve. When you profit by taking from me, that ticks me off.

We see the lesson for litigation advocacy in this research as this:

The story isn’t about getting jurors to see that the accused party needs to be punished. The story is about your client’s hard work and the accused taking the idea/product/spouse/licensing rights/et cetera and ending up better off than your client in the end. Now that’s not fair!

Raihani NJ, & McAuliffe K (2012). Human punishment is motivated by inequity aversion, not a desire for reciprocity. Biology Letters PMID: 22809719

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