June 16, 2011

Spot the Jurors Who Feel Entitled to Award Higher Damages

We all remember Aesop’s fable of the happy-go-lucky grasshopper who played away the summer while the ants worked industriously. When winter came, and the hungry grasshopper ended up at the ant’s door, the moral of the story became clear: entitlement, the feeling that the world owes you a living, will not get you through the winter. But according to some new research, entitlement will lead to higher damages in civil litigation. In the current issue of The Jury Expert, Gary Giewat reports on data collected by the American Jury Centers showing that mock jurors with the highest levels of entitlement (that is, those who agreed with statements like “I deserve more things in my life”), awarded the highest levels of damages. Taking this research as a point of departure, this post takes a quick look at how litigants can spot the entitled juror who might be prone to unwarranted enerosity.

By Dr. Ken Broda-Bahm –

Grasshopper
We all remember Aesop's fable of the happy-go-lucky grasshopper who played away the summer while the ants worked industriously.  When winter came, and the hungry grasshopper ended up at the ant's door, the moral of the story became clear:  entitlement, the feeling that the world owes you a living, will not get you through the winter.

According to some new research, entitlement will lead to higher damages in civil litigation.  In the current issue of The Jury Expert, Gary Giewat reports on data collected by the American Jury Centers showing that mock jurors with the highest levels of entitlement (that is, those who agreed with statements like "I deserve more things in my life"), awarded the highest levels of damages.  Taking this research as a point of departure, this post takes a quick look at how litigants can spot the entitled juror who might be prone to unwarranted generosity.

Dr. Giewat's article answers part of the question for litigators, "Can damages behavior be predicted based on entitlement personality features?"  The answer from his data is "yes," but the rest of the question is, "okay, so what do we do about it?"  For defendants looking to improve their jury pool, the next step is to figure out how to target this entitlement bias.

So who feels entitled?  I can sense the immediate response of all you parents who may be reading:  kids!  The perception is that today's young people are more oriented toward entitlement than prior generations.  There is some research to support this (e.g., see Twenge & Campbell's The Narcissism Epidemic:  Living in the Age of Entitlement), but it is not without controversy, and in any case, for the attorney conducting voir dire, it is not terribly useful to target a broad demographic that becomes a bigger proportion of the jury pool every year.

Thankfully, there are better ways to target an attitude than to strike the demographic where it is presumed to live.  If you have an open-minded judge, you could always use a juror questionnaire and ask the very questions that Dr. Giewat found to associate with damages (e.g., "I honestly think I'm more deserving than others"), but in most cases that won't be practical.  Alternately, another recent study on entitlement thinking (Zitek et al., 2010) provides a different route.  The researchers looked at the question of who is most likely to carry these feelings of high entitlement, and found that those who feel that they've been wronged in the past are most likely to feel entitled.  Now, the causation might run either direction on this:  people might feel entitled because of past harm, or they might feel they've been harmed in the past because of their sense of entitlement.  But either way, reports of past injury can serve as a proxy for the attitude.

What this means is that on a personal injury defense, for example, it is helpful to ask:

  • Who here has ever been seriously injured through the fault of another?

But importantly, those who feel that they've taken their lumps in other contexts might be equally important to identify:

  • Who has ever lost a significant amount of money due to someone else's dishonesty?
  • Who has been treated unfairly by someone who made or sold a product?

Identifying these individuals could be more important since those with out-of-context injuries may be less likely to say, "Well I experienced the same thing, and never got a big reward in litigation."

The larger point is to remember that every case is, at some level, a morality play, and for an important subset of cases, it is critical to separate the ants from the grasshoppers.

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ResearchBlogging.org Zitek EM, Jordan AH, Monin B, & Leach FR (2010). Victim entitlement to behave selfishly. Journal of personality and social psychology, 98 (2), 245-55 PMID: 20085398

 

 

Photo Credit:  jster91, Flickr Creative Commons

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