Strategic Insights on Affective Economy: Countering Juror Anger With Sadness Can Exert Downward Pressure on Damages

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A few weeks ago, I wrote about the impact of emotional economy on juror decision-making. Research tells us that the emotional state of jurors has distinct impacts on the way they process and apply evidence and testimony at trial. We also know that in times of a national crisis, like the one we are currently experiencing with the COVID-19 pandemic, people’s emotional states are heightened and amplified. What this means is that you can gain a distinct advantage at trial by understanding how emotional states impact cognition, decision-making, perception of evidence, and your client.

Effective plaintiffs can win massive damage awards for their clients, in large part, because they tap into the latent anger of jurors. Whether jurors see themselves in the victim, or perhaps have had similar life experiences, or are just utterly offended by the facts of a case, anger drives juror to decide cases in favor of plaintiffs, most often resulting in nuclear verdicts. The question for defense attorneys is this: how do you dampen that anger? The surprising answer might be to embrace the sadness – the cognitive processes that are often induced by anger can be mitigated when jurors feel sad. While sadness and anger may seem like two states that both invite irrational thinking, research and our own trial experiences demonstrate that each has a distinct processing impact that can be tapped to great effect when understood.

Appraisal Tendency Theory is one of the most prominent explanations for how emotions impact social cognition and decision-making, and it suggests that each emotional state is linked to a pattern of information appraisal. In other words, how we see the world when we feel certain ways – glass half full, half empty kind of stuff – changes how we process and use information.  We also know that anger is one of the most reported emotions for plaintiff-leaning jurors, and appraisal theory helps us understand exactly why that is. Multiple studies demonstrate two primary effects when decision-making intersects with anger. The first is a reliance on heuristics to make decisions, which often manifests as certainty that one’s biases are correct, having the effect of reducing the scrutiny that jurors might apply to evidence that contradicts their biases.  A second effect is called the “prosecutorial mindset,” which suggests that angry jurors are more likely to seek punishment as an outlet for their anger. In this instance, jurors are certain a wrong has been done and believe they can rectify it by punishing the wrong doer. Combined with an inflated sense of certainty, anger can be a powerful tool for plaintiffs.

Redirecting anger’s impulses toward certainty and bias can appear daunting. It’s not always (or usually) effective to simply state that a bias is incorrect – a direct confrontation with the cognitive effects of anger likely won’t have the intended result. Just think about your personal life and if you’ve ever told someone to stop being angry; how’d that turn out? It may be more productive to move jurors into an emotional state that changes how they process information, and research suggests that may be to make them sad. I know, it sounds like you are swapping one irrational state for another, but sadness can act as a corrective to some of the worst effects of anger.

Sadness is empirically associated with appraisal states that are both less certain and produce more careful analysis. As I’ve said in a previous blog, jurors reporting sadness while making decisions were more likely to notice and act on discrepancies in testimony, and more likely to evaluate evidence more critically. They are also more likely to see events in a more fatalistic way – sometimes bad things just happen, for example, which is the opposite of the prosecutorial mindset. This combination of increased scrutiny and reduced likelihood to blame-specific people or groups has an impact on how they decide cases during trial. In short, sad jurors are more careful and less certain and, as such, are less likely to find for plaintiffs.

It’s not all theory. Understanding the effects of emotional states can directly impact strategy. My colleague, Tom, recently wrote about strategies for tying damage anchors to specific and practical outcomes for plaintiffs. This is a strategy that has seen quite a bit of success in no small part because the compassion and generosity of these anchors redirects juror anger toward the tragic material realities of a case, activating sadness, and resulting in lower damages.

Another example is work we’ve done in modeling and predicting nuclear verdicts. One of the factors that is tested in our model is valance of sadness and anger in evaluating which facts are more likely to produce very high damage awards. When we can isolate what makes people angry and why, it can help defense strategy counteract it more effectively.

And sometimes, it’s as simple as the defendant’s choice of language. Recognizing that events are sad and embracing it can lead jurors to be more cautious and attentive to evidence discrepancies. While plaintiff cases are built on compelling stories, the defense often must rely on jurors digging through the minutiae of testimony and evidence. Research suggests that sad jurors are more likely to dig in and look for those details that may change the outcome at trial.

Of course, there is no one size fits all strategy for dealing with anger in juror deliberations, but we can look to how people reason in certain emotional states to help predict and mitigate some of the most effective and predictable plaintiff tools.

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