One of the first memorable studies that I read about jury psychology in graduate school was the 1997 study by Neil Feigenson and colleagues on the relationship between injury severity and blameworthiness. This was early in my graduate studies when I was focused on the effects of injury severity, particularly on attributions of fault. My operating theory at the time, which was also a commonly held belief in the field, was that jurors were more likely to blame the defendant as the severity of the injury to the plaintiff increased, regardless of the strength of the liability evidence against that defendant. There are a variety of theories as to why this might be the case, with the leading explanation being overwhelming sympathy for the plaintiff.
Feigenson’s study caught my attention because the results were contrary to my beliefs and expectations. This study found that participants were actually more likely to blame the victim of the injury as the severity of the injury increased. In fact, Feigenson and company found that “the fault attributed to the victim…is significantly greater when the victim’s injuries are more severe.” At first glance, this made no sense to me, but as I dug into the study, the explanation became pretty clear. The authors suggested that defensive attribution was ultimately at work in these findings. “By blaming the victim, observers’ distance themselves from him or her, preserving their belief that they will not find themselves in the same position.”
In other words, defensive attribution is a psychological defense mechanism for understanding and coping with traumatic events that play out in front of us. When jurors hear about a traumatic injury to someone, it reminds them of their own mortality and stokes the fear that they could suffer the same fate. However, as the research on defensive attribution shows, the quickest and easiest way for jurors to resolve that fear is to differentiate themselves from the victim. This allows them to draw the conclusion that they would never suffer such a fate because, for example, they would never make the same decision as the plaintiff.
The research on defensive attribution has important implications for trial strategy. First, plaintiff attorneys should be careful about overplaying their fear appeals. This is notable because Reptile, the popular 2009 strategy book for plaintiff attorneys, suggests that plaintiffs should incorporate more fear appeals into their case. Notably, Reptile makes no mention of defensive attribution, which empirically demonstrates that such strategies are likely to backfire.
Instead, our research suggests that plaintiffs might achieve greater success shifting away from Reptile to something more akin to Rick Friedman’s Rules of the Road. Rules of the Road adopts an anger-fueled approach in which plaintiff attorneys show how the defendant violated the rules or norms of society. This makes the case a referendum on how the defendant conducts business, which is much more difficult to defend against. Finally, our own jury analytics research overwhelming demonstrates that juror anger, not fear, is the strongest predictor of damages, particularly nuclear verdicts.
For defense attorneys, defensive attribution suggests that the defense is more likely to prevail when it can arm jurors with easy explanations for how the plaintiff caused their own injuries. In our experience, the most effective way to accomplish this is to show a pattern of questionable decisions by the plaintiff. This allows jurors to differentiate themselves from the plaintiff and reassure themselves that they would never suffer such a horrible fate because they would never make the kinds of decisions that were made by the plaintiff. The trick is finding balance in this approach. Defense attorneys need to be very careful about not being too aggressive and coming across as engaging in an unreasonable attack on the plaintiff.