Judges and attorneys ask jurors if they can be “fair and impartial” or “objective” during voir dire. Except for those who want to be excused, the answer is always “yes.” We like to think of ourselves as fair and impartial. Research on moral judgments about the behavior of others (Knobe, J. Scientific American, Nov, 2011), however, contradicts this. These studies show that jurors look at the consequences of an act to decide whether the act was intentional or not.

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Here is an insurance bad faith analogy to the experiments that have been conducted:

The adjusters and the VPs are sitting at their “round table” and the Senior member of the team says, “I know that denying these claims will hurt our insureds, but I don’t care. We’re here to make a profit. So, let’s go ahead and deny these claims.” The company implements the policy and, sure enough, many insureds are hurt. 

The question is then posed to the subjects in the experiment:  Did the Senior VP hurt the insureds intentionally? The overwhelming answer in these studies is “yes, for sure he did.”

Then the experimental story is tweaked a little. Instead of “hurt”, the word “help” is inserted:

The adjusters and the VPs are sitting at their “round table” and the Senior member of the team says, “I know that denying these claims will help our insureds, but I don’t care. We’re here to make a profit. So, let’s go ahead and deny these claims.” The company implements the policy and, sure enough, many insureds are helped (lower premiums, profit-sharing, etc.).

The question is then posed to the subjects in the experiment:  Did the Senior VP help the insureds intentionally? The overwhelming answer in these studies is “no, for sure he did not. It was an accident or a side effect.”

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Essentially, these two scenarios are exactly alike in examining the VP’s intent:

◊  The VP knows in advance there will be a consequence for his decision;

◊  The VP does not care about consequences as long as he makes money;

So why do people ascribe different motivations to the decision of the VP? The difference is that in one case, the consequences are harmful (morally evil) and in the other, the consequences are helpful (morally good).

What does this tell us about jurors’ perceptions and decisions?

1.  Plaintiff attorneys need to equate harm with intent by pointing out the negative side effects of a decision:

• • For example, insurance defenses in bad faith actions rely a lot on “it was an accident” or “it was a clerical error” or “it was a miscommunication” or “it simply slipped through the cracks.” Jurors want to believe this. They do not want to believe that a company in an industry on which they rely for protection would intentionally harm a client. Plaintiffs then, need to present evidence that the VP knew of the potential for harm and, not caring about the side effect, went ahead with the policy anyway. This is especially true in a punitive damage phase of a trial. Let the jury know that their verdict can teach VP’s to think about the possible side effects before they implement a decision.
  • Likewise, in a product defect case, the intent of the manufacturer to ignore safety over profits without really trying to anticipate or care about how their product might pose a threat to a user needs to be emphasized.

2.  Defense attorneys need to emphasize that accidental, unintended consequences will always be there:

• • In our insurance bad faith example, defendants need to emphasize the helping aspect of insurance, how giving away payments on bad claims is not helpful to anyone, and that almost any company policy or decision will have some accidental fall-out once implemented.
  • In a products defect case, defense attorneys can point out how all the installed safety features and warnings are helpful and have prevented untold numbers of injuries. Injuries beyond the current safety features and warning stickers are unintended side effects of manufacturing decisions that have to be made in order to get a product into the hands of consumers.

3.  Jurors need to be told explicitly what the motives and intent were behind the act or else they will make up their own.