Trial jurors are in a unique position. They are not passive listeners to each side’s litigation story, but rather active participants who will ultimately determine how the story ends. Jurors need to make moral judgments about who should win cases and the amounts of damages, if any, that should be awarded.
For claims professionals, understanding the moral foundations that jurors use in their decision making can help in determining early in the litigation process which cases to settle and which to take to trial. For cases that proceed to trial, attorneys can tell a more persuasive and effective story when they understand the different moral judgments jurors make to reach decisions.
Although jurors are presented with the same arguments and evidence at trial, they do not all rely on the same moral judgments when making verdict decisions. If they did, jurors would all agree on trial outcomes, which, of course, rarely occurs.
Moral Foundations Theory
Moral Foundations Theory provides a framework for understanding why jurors can have very different views about which side should prevail in a case. The theory proposes that moral judgments evolve from an innate foundation, which is subsequently built upon through cultural learning. Recent research suggests that moral judgments are made automatically, and are based on emotion rather than deliberate reasoning. In other words, people make decisions based on what feels right and then seek out information to support those views.
The theory states that people use five foundations for making moral decisions, based on motives for group inclusion and cohesiveness. These moral foundations involve concerns for care versus harm, fairness versus cheating, loyalty versus betrayal, authority versus subversion, and sanctity versus degradation. Fundamental to the theory is that people differ in how they apply these moral foundations to their decision making.
In his book, “The Righteous Mind: Why Good People Are Divided by Politics and Religion,” Jonathan Haidt, a social psychologist from the University of Virginia, demonstrates that differences in voters’ sensitivities to these moral foundations account for their voting preferences. For example, he contends liberals are more concerned with moral issues involving harm and fairness, while conservatives view morality more through the prisms of authority and sanctity. These differences explain why liberals focus more on issues involving justice while conservatives are more persuaded by messages of authority, rules, and protecting vital institutions.
Similarly, jurors will often differ in their sensitivities to these five moral foundations when determining the outcome of a trial. In a personal injury case, some jurors will be more sensitive to issues involving care versus harm, making them predisposed to be more sympathetic to the plaintiff. Other jurors’ moral judgments may favor authority versus subversion. Such jurors may place more emphasis on whether the plaintiff and defendant followed rules and industry guidelines. Following is a description of each of the five moral foundations and how they apply to different case types:
Care/harm—This relates to our role as individuals who care for others, and concerns virtues such as kindness, empathy, and nurturance. Jurors may use this moral foundation to determine whether defendants acted safely and in the interest of the general public. This moral foundation may be a factor in cases involving insurance defense, catastrophic accidents, and product liability matters.
Fairness/cheating—This moral foundation is based on individuals’ expectations that altruistic acts will be reciprocated. In other words, people expect that any help provided to others will eventually be returned, if needed. Individuals sensitive to this moral foundation are concerned with the concepts of justice and fairness. Anti-trust and trade-secret cases often deal with these issues as juries determine whether defendants acted fairly or cheated in order to obtain a competitive advantage.
Loyalty/betrayal—The basis for this moral foundation stems from our evolutionary history of living in groups. Accordingly, this moral foundation is based on a sense of belonging and a fear of rejection, and may be relevant in contract cases where one party betrays the other when leaving a relationship. Patent cases may also involve issues of loyalty and betrayal as one party may be accused of copying or stealing ideas from a competitor.
Authority/subversion—There is a hierarchy within most social and professional groups. The underlying virtues of this moral foundation are respect for rules and leaders, and deference to authority and traditions. Employee litigation may contemplate whether an employee disregarded company policies or whether an employer abused its authority.
Sanctity/degradation—This foundation is based on our visceral reaction to activities and contaminants that disgust individuals. From an evolutionary perspective, this allows individuals to evade potentially harmful activities that could cause injury or death. In the legal context, disgust can be observed when criminals are referred to as “scum.” Disgust may also be evoked in many types of civil cases. Jurors may experience disgust when observing horrific injuries resulting from catastrophic accidents, or in cases involving corporate greed and misconduct. In environmental cases, disgust may be experienced when hearing about companies illegally polluting and dumping.
Crafting a Story and Identifying the Moral
There are good reasons for trial attorneys to present their cases in story form. Research has consistently shown that stories are more likely to be comprehended and recalled. Moreover, when information is not presented in story form, people tend to organize the information into stories anyway. The danger of not providing stories at trial is that jurors will create their own stories to fit the evidence and fill in gaps.
Apart from developing a story, attorneys must determine the moral modalities that jurors will use to decide cases. Because moral judgments are based on emotion and occur automatically, attorneys need to identify the profiles of jurors who will rely on the moral foundations when making verdict determinations. These jurors are the most likely to be emotionally driven and the strongest advocates for or against clients during deliberations. By understanding the moral foundations relevant to verdict decisions, attorneys are much better able to identify jurors favorable to their cases, and can develop themes and trial stories that will most appeal to jurors at trial.
Attorneys may further bolster their cases by using language that drives jurors toward a specific moral foundation when making verdict determinations. Essentially, by using certain terminology during openings, witness questioning, closing arguments, and with any accompanying demonstratives, attorneys can craft messages in their stories that describe their clients’ actions in a positive light while setting a negative moral tone for their adversaries’ behaviors.
Implications for Claims Professionals
In-house counsel and claims professionals evaluate thousands of cases each year, and they need to decide which cases to potentially take to trial, which to settle soon after the claim is filed, and which to settle before a claim is even filed. When evaluating cases, claims professionals typically compare historical jury verdicts with the facts of the current cases to make settlement decisions. However, claims professionals should also consider whether a claimant’s story will resonate with the moral foundations that jurors will use to make verdict decisions.
As discussed, jurors’ decisions will be based on the corporate stories told at trial and the moral foundations they use to make verdict decisions. If the defendant’s story conforms to the appropriate moral foundations, jurors will likely decide the case favorably. However, if there are gaps in the story and/or weaknesses that cannot be explained, jurors will evaluate the case in terms of harm to the plaintiff, cheating, betrayal, and other moral judgments that make them more likely to find in favor of the plaintiff and award damages. Settlement decisions should therefore be made in the context of the moral judgments that jurors will use to ultimately decide a case.