The motivation behind an act is probably the most interesting aspect of human behavior for people to discover. We hear news reports all too often about some horrible set of facts and the first thing we want to know is “why?” All too often, however, the “why” in a civil case is not presented because it “calls for speculation.” Trial attorneys face a problem here—sometimes the motivation is unclear, sometimes it IS speculative, or sometimes it is not seen as advantageous to their side. On the other hand, since motivation is the most intriguing part of the case for the jurors, THEY WILL MAKE UP A MOTIVATION IF THERE IS NOT ONE GIVEN. This made-up attribute is seldom one that you are going to be happy with when the verdict is handed down.
For instance, here is what a recent focus group member said after reading a case summary in a personal injury case: “It eats at me that she’s suing her boyfriend. You have to take the relationship into consideration. She wants money from him in case they break up.”—even though the relationship really had nothing to do with the car accident or her injuries at all.
Jurors need to be told the “two whys”–
- Why your client behaved the way she did; and,
- Why the jury should grant an award
How powerful is it to provide the “whys” for the jurors? Let’s turn to science for an answer.
In a simply elegant study by Langer, Blank, & Chanowitz (1978), compliance with a request was studied under three conditions:
a) A request for a favor with no reason given;
b) A request for a favor with a reason (motivation) provided;
c) A request for a favor where only the “trigger word” for a reason, but no actual reason added, was provided.
The experimenter went to the copy machine line in a library and asked in three different ways to cut in line:
a) “Excuse me, I have 5 pages. May I use the copy machine?”
b) “Excuse me, I have 5 pages. May I use the copy machine because I am in a rush?”
c) “Excuse me, I have 5 pages. May I use the copy machine because I have to make copies?”
How often was the favor of “cuts” extended to the requester?
a) 60% (request only)
b) 94% (request plus the “why”)
c) 93% (request plus the trigger word “because”)
In your next trial, what level of juror cooperation would you like to have? Above 90%, you say? Very well then, use a trigger word and provide a reason. Juries typically do not think your client “deserves” an award just because of the facts. They are, however, more apt to do your client a favor if they know the two “whys.”
Don’t try this because you think it might work, try it because I said so . . .
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