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“That’s not fair!”

Wednesday, January 2, 2013
posted by Douglas Keene

Lucy with lips half asleepAnyone with children will hear this complaint repeatedly. New research tells us that even dogs know the importance of equity when it comes to differential rewards for doggie tricks! (Researchers paired dogs and then rewarded some with treats for tricks and did not reward others. When dogs saw their “buddy” being rewarded for doing a trick and they were not rewarded for doing the same trick, they “showed signs of stress” and refused to “shake” with the unfair researcher. You can read the details of this study at The Scorpion and the Frog blog.)

So if dogs and kids do it, it shouldn’t surprise us that jurors also measure case narratives on the basis of equity and fairness. The most common way we hear this mode of thinking is verbalized as “Well, it may be legal, but it sure isn’t right!”. Other times we hear overt discussions of fairness and equity and the importance of straight-forward dealings with others.

We’ve done pretrial research on a number of cases in the past involving families. Family business disputes. Family inheritance disputes. Divorce cases involving lots and lots and lots of money.  These cases beg for themes of fairness, favoritism, parenting failures, backstabbing, sibling rivalry, and so on.

What is interesting is that if you simply tell the story, jurors identify fairness and inequity themselves. They knowingly comment on “the middle child syndrome” or “the eldest is always the favorite” or even “that child should have been spanked more growing upand can become caught up in the family drama as they hear more and more information about the dispute. The lesson for litigation advocacy is straightforward but bears repeating. If there are themes of equity or fairness or deception or manipulation in your case narrative–you need to focus on how to explain, interpret, or minimize the bad facts.

You can emphasize the situational factors rather than the character factors involved in the bad behavior.

You can work to activate juror values.

You can tell a story that covers a span of years. Or even a lifetime.

Range, F., Leitner, K., & Virányi, Z. (2012). The Influence of the Relationship and Motivation on Inequity Aversion in Dogs Social Justice Research, 25 (2), 170-194 DOI: 10.1007/s11211-012-0155-x

Image Rita Handrich

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