November 19, 2012

Treat Knowledge as Intent

By Dr. Ken Broda-Bahm: 


It is one thing to know an act has a chance of resulting in harm, and it’s another to intend that harm to occur. Or is it? Consider the example of a company that is aware of a small risk of electric shock if repairs are done without powering off a piece of equipment. If the company sends an employee to make that repair anyway, would jurors say that company intended the injury to occur? It turns out, it depends on how you ask the question. A new study in the Journal of Empirical Legal Studies (Mueller, Solan & Darley, 2012) looked at exactly that scenario and found that, while research participants were generally able to see distinctions between varying degrees of liability (e.g., negligence versus willful disregard and intent), when asked to make a binary choice regarding intent, they tended to treat just about any level of knowledge as proof of intent. The tree of knowledge, in other words, bears the fruit of intent. 

The challenge with any concept as subjective as “intent” is that jurors and judges end up with few, if any, foolproof cues, and instead they need to rely on their own projections. In the study, participants were asked to look at a scenario and assign consequences for the employer in deciding whether its acts were intentional or not. In that setting, the researchers found that participants’ “‘hot’ moral judgments play a larger role than do their ‘cold’ cognitive categorizations.” That means that the ability to understand a legal distinction won’t always translate into a willingness to apply that distinction in practice. This post takes a look at this interesting new study on the ways jurors handle intent, and provides some practical advice for handling the distinctions in intent required by your case. 

The Studies

A pair of Princeton psychology professors and a Brooklyn law school professor (Mueller, Solan & Darley, 2012) used the fact pattern mentioned above: A company may know from past experience that repairs made on a machinery line that is still “hot,” or powered on, have a risk of causing an electric shock, but they send the employee to make the repair anyway. In providing participants with this scenario, the researchers varied the employer’s state of mind (intentional, knowing, reckless, negligent, or innocent), the degree of risk the employer was aware of, and the employer’s knowledge of specifics (the who, how, and when of the injury). Testing these elements across five studies (with samples varying from 100 and 125), the participants were subsequently surveyed on their perception of the most appropriate legal category, made a binary choice of whether the company’s actions were intentional or not, and awarded economic and noneconomic damages. 

The Main Finding (and Recommendation)

Finding: The study’s results both support and challenge the legal expectation that jurors correctly apply the different categories relating to intent. On the reassuring side, the researchers did confirm that participants were reliably able to make the explicit distinctions in state of mind that correspond roughly to the experimental scenarios. That is, they were able to correctly separate “negligence” from “reckless disregard” and from “intent.” On the challenging side, however, the researchers found a very low threshold for knowledge when the mock jurors were asked to make the simple determination of whether intent was present or not. In other words, knowingly placing someone at risk is practically the same as committing intentional harm. Of course, this finding can be viewed as consistent with the civil law expectation that a person acted intentionally even when the person didn’t desire the injury to occur, but nonetheless knew that the actions were likely to result in harm. But the degree of likelihood is the challenging aspect. “Once [jurors] attribute even a small amount of knowledge to that risk to the wrongdoer,” the researchers note, “they impose liability equivalent to that for intentional wrongdoing.” This may be a motivated judgment in the sense that jurors might understand that, though another cognitive category might be more fitting, a deserving plaintiff may not be compensated unless the behavior is intentional (for example, in a workers’ compensation setting).

Recommendation: For the most part, this finding confirms the intuition that both sides tend to have about verdict forms. Plantiffs tend to want it very simple (e.g., “Should they pay?” and “how much?” might be a preferred formulation), while defendants want things more broken out, with abundant opportunities to say “no” along the way. More specifically, though, this finding suggests that in cases involving intent, plaintiffs should fight for a single question focusing on whether the defendant’s actions were intentional or not, without over defining that concept or the elements contained, at least not in the form itself. Defendants, on the other hand, should ask for an interrogatory-style verdict form which give jurors a multiple choice that includes a spectrum of choices including simple negligence without intent.

Other Findings (and More Recommendations)  

“How” Matters, But “Who” and “When” Don’t. The researchers also found that in varying, more specific types of knowledge about likely harm, there were some important differences. Specifically, they found that it didn’t tend to matter whether the employer superficially knew who was going to be harmed or when that harm would occur. If someone was likely to be injured at some point in the future, that was enough to make them comfortable with a finding of intent. In contrast, it was important whether the employer knew how the injury was likely to occur. When there is only general knowledge about possible harm in the future without a specific mechanism, that is unlikely to be seen as intent. It is like the car maker who knows that a certain percentage of the cars it sells will be involved in deadly accidents. But if you add a mechanism (e.g., in a certain percentage, the brakes will fail) then you have intent. 

What this suggests for the defendant is that, ideally before trial, they should be very conscious of any knowledge that points not just to future harm, but to a mechanism of future harm. When you know the “how,” that creates a responsibility to do something about it, a failure to take action invites a finding of intent. 

Responsibility Is Independent of Both Negligence and Intent. Research participants believed that the employer should take responsibility for the medical expenses of the injured employee regardless of the employer’s state of mind. Whether the employer was innocent, negligent, reckless, or intentional, it seemed only right that they would take care of a worker injured on the job. Specifically, every one of the research participants in the “intentional,” “knowing,” “reckless” and “negligent” conditions awarded medical expenses to the worker, and fully 80 percent of those in the “innocent” condition did as well. 

The implication of this is simple, but very much at odds with what the law tells you: Don’t assume that legal responsibility kicks in only upon a finding of legal liability. Instead, jurors expect an ethical party to take responsibility at some level for what happens on its watch. That means, if at all possible, pay for the care and don’t quibble. Few jurors would fault a company or treat it as an admission if an employer is making sure that one of its own is fully cared for after being injured on the job. 

Of course, the broader point hearkens back to something that we frequently advise: When accused, don’t simply defend. Instead, build a positive message by speaking to the moral sense as well as the legal sense of your fact finders.  


Other Posts on Intent: 

____________________ Mueller, P.; Solan, L.; Darley, J. (2012). When Does Knowledge Become Intent? Perceiving the Minds of Wrongdoers Journal of Empirical Legal Studies, 9 (4), 859-892 DOI: 10.1111/j.1740-1461.2012.01269.x


Photo Credit: Korom, Flickr Creative Commons (painting held by Madrid Museo Nacional del Prado)

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