By Dr. Ken Broda-Bahm
Imagine two scenarios involving figure skaters just before a competition. In the first scenario, one skater, perhaps a sneakier version of Tanya Harding, loosens some of the screws on the bottom of another contestant's skate causing her opponent to fall and delivering the victory to the saboteur. In the second scenario, that same skater doesn't touch the screws, but notices that they are loose and decides to say and do nothing about it, and the result is the same. Both situations are ethically comparable, since in each case, a selfish choice results in an unearned victory and potential injury to another. But as you might expect, the two scenarios are evaluated very differently, with greater responsibility and blame being placed on the act (the first scenario) over the failure to act (the second scenario).
That is the result of a recent study conducted by a group of researchers out of Brown University (Cushman et al., 2011). Using 24 short stories, including the figure skating scenario, the social scientists conducted a brain imaging study to look at why we tend to view the active harm as morally worse. The study carries some important implications for how we think about legal responsibility, because advocates often have a choice in how much emphasis to give to acts and omissions respectively. This post will take a look at this novel experiment and draw some conclusions for framing the legal arguments when you are trying to place or to escape responsibility.
Let's take a closer look at what the Brown University team did. Based on previous studies, the group began the project knowing that people tend to assign more responsibility based on action rather than inaction, but they wanted to know why. Earlier studies had hinted that people consciously reason toward the belief that active harm is worse than passive harm, so they came up with a clever design to see if that was indeed the case. Taking fMRI brain scans of all of the participants, the team looked at cerebral blood flow in order to literally see what was going on in the minds of those who found active harm to be worse compared to those who saw active and passive harm as moral equivalents. Instead of finding a greater level of mental activity from those placing the greater blame on active harm, the researchers were surprised to find the opposite: Those who judged the active and passive harm scenarios to be equally blameworthy, were actually doing more mental work to arrive at that conclusion.
As the lead author, Fiery Cushman noted in a Eureka Alert, "The people who are showing this distinction" between active and passive harm, "are actually the ones who show the least evidence of deliberative, careful, controlled thinking, whereas the people who show no difference between actions and omissions show the most evidence of careful deliberative controlled thinking." Why would that be the case? The authors suggest that the preferential evaluation of actions, as opposed to inactions, is relatively automatic, and only those jurors who are able to reason their way to a different conclusion are able to place acts and omissions on the same plane.
This suggests that if your legal case requires placing the two in parity, or giving greater emphasis to omissions, then you are rolling the ball uphill. If, on the other hand, you are basing evaluation on actions, then the gravitational force of human psychology is on your side. Since the description of something as an act or an omission can often be a matter of semantics, it presents a strategic choice for advocates seeking to place responsibility, or to escape it.
When Placing Responsibility...
When you are on the side that wants to localize responsibility or blame, either as plaintiff or defendant, then the takeaway is this:
The adversary's fault lies in actions not inactions.
The company didn't "fail to sign the contract," they "chose to leave the contract unsigned." The manufacturer didn't "neglect safety testing of the product," they "put an untested product on the market." The manager didn't "fail to inform workers about the new safety procedure," instead she "stayed with the same script, sending the workers the message that everything remained the same." The more it is seen as an action rather than a failure to act, the less mental work is required in attaching responsibility to it. This approach also meshes well with a narrative perspective, since stories are based on actions and on "what happened."
When Evading Responsibility...
When your position benefits from minimizing or avoiding responsibility, the opposite takeaway applies:
At worst, it is an omission.
It might sound like this: "Does the company wish that it would have done even more than the conventional due diligence on this investment? Of course it does. In hindsight, that obviously would have been better for everyone. But we didn't." That strategy works best, of course, when it is paired with a defense of what the company did do. All of the good behavior is framed as action ("We scrutinized the prospectus, interviewed the principles, and ran every basic check within the industry standard on due diligence"), while the behaviors that are the targets for liability are framed as inactions ("But we didn't go above and beyond that industry standard in this case.").
The difference can be a subtle one. To a lawyer's mind, "not reporting costs" and "leaving costs out of the report" may sound like the same thing. But within the language of human psychology and cognition, there is an important difference. The natural tendency is to focus on action and to place responsibility there as well. A good advocate follows that tendency as much as the case facts allow. After all, why make your fact finder work harder than they need to?
Other Posts on Framing Responsibility:
- Don't Wear The Black Hat Lightly: You're Not the Bad Guy Because You're at Fault, You're at Fault Because You're the Bad Guy
- Don't Be Defined By Bad Acts (Make Your Good ActsIntentional, and Your Good Intentions Actual)
- Personal Responsibility or Impersonal Irresponsibility? Know Which Filter Jurors Are Likely To Apply to Your Next Products Case
Cushman, F. et al., (2011). Judgment Before Principle: Engagement of the Frontoparietal Control Network in Condemning Harms of Omission. Social Cognitive and Affective Neuroscience.
Photo Credit: masochismtango, Flickr Creative Commons