By Dr. Ken Broda-Bahm:
The sacred can sometimes find its way into legal evaluations. Apart from jurors using or quoting the Bible during deliberations (see Miller et al., 2013), sacred values can also take a broader role in the form of moral imperatives we are unwilling to compromise. One researcher (Tetlock, 2003) in a relatively young field of "sacred values psychology," defines these imperatives as "those values that a moral community treats as possessing transcendental significance that precludes comparisons, trade-offs, or indeed any mingling with secular values." While these would be most obviously religious values, they can also be political, philosophical, or even practical values that we are simply unwilling to balance against other interests. Those watching the current political debates in Washington, for example, could note the sacred cows of the right as no new taxes, no cuts to defense spending, no additional restrictions on gun ownership to name a few. And on the other side, the no compromise values of the left would potentially be full support to unions, no reductions in the social safety net, and unwavering defense of healthcare reform...no matter how beleaguered the rollout.
A recent review in The New York Times looks at what we know about the psychology of those beliefs that are taken to be sacred. Of interest to litigators is the finding that, when a sacred value is at stake, any argument that is even seen as an invitation to compromise, that value can backfire, causing an audience to dig in even deeper on their existing beliefs. That tendency will certainly be confirmed by any trial attorney who has tried unsuccessfully to talk some jurors out of very deep beliefs. In cases with obvious moral implications -- not only death penalty cases, but also cases that include the possibility of community condemnation in the form of punitive damages -- a juror's moral boundaries are relevant. Following up on a recent post in which I encouraged readers to consider evil, in the form of attitudes about the irredeemable, I thought I would offer a few thoughts in this post about the litigation implications to be found in other pole of the value spectrum
The Research: No Sacrificing the Sacred
Economic models tend to presume we are rational actors, making choices that maximize the best outcomes. Psychological research, in contrast, tends to show that we have an attachment to certain principles that we rarely, if ever, compromise. Based on a line of research conducted by psychologists Jonathan Baron and Phillip Tetlock, we tend to cling tightly to our perceived sacred cows, and to respond with moral outrage when we are asked to violate those moral boundaries.
As we have noted before, people tend to be more like deontologists than utilitarians in the sense that there are certain lines we do not want to cross, even if crossing would yield the greater good. "Opportunity costs be damned," Tetlock (2003) summarizes, "some trade-offs should never be proposed, some statistical truths never used, and some lines of causal/counterfactual inquiry never pursued."
Beyond this avoidance of trade-offs involving core principles, the research on sacred values also suggests that the mere contemplation of a trade-off -- the perceived request for a compromise -- can spark a backlash of moral outrage and a need for "moral cleansing" by taking some action to erase a feeling of contamination. Research even suggests we use our brains differently when thinking about sacred values (Berns et al, 2012), based on the MRI-based observation of different regions of the brain being activated when experimental subjects are asked to think about sacrificing one of their moral absolutes as opposed to thinking about more pragmatic choices.
In contrast to the 'rational actor' model of economics, Tetlock (2003) notes, "research on sacred values suggests a supplementary perspective that posits people to be intuitive theologians struggling to defend sacred values from secular encroachments." A list of the relevant values that some jurors hold sacred will vary from case to case, but here is a sampling of common nonnegotiable principles relevant to civil cases:
- No one, neither plaintiff nor defendant, should be allowed to walk away with an undeserved benefit.
- Dishonesty from either party deserves punishment, even if it is immaterial to the facts at issue.
- Events should work out in a way that doesn't simply uphold the law, but upholds equities and fairness as well.
Navigating Around Sacred Values
If your case touches upon beliefs your fact finders might consider sacred, here are a few considerations:
1. Pay Attention to Moral Foundations
Death penalty cases present the clearest example of a trial scenario where jurors' moral foundations come into play. In jury selection for those cases, the process of "death qualification" treats opposition to the death penalty as the kind of sacred belief that would disqualify service. On the other end of the scale, we should also "life qualify" that same panel in order to ensure that there are none who believe so strongly that first degree murder merits the death penalty that they're unwilling to follow the law by considering mitigating factors.
These moral concerns are not limited to criminal cases, since research (e.g., Kahneman et al., 1998) shows that punitive damage determinations often have a moral foundation: a reflection of what we condemn. Even in nonpunitive cases, it is still likely that there will be some dimensions of common morality influencing how jurors and other decision makers interpret and evaluate your case story.
2. Reframe Challenges Away from Sacred Values
In cases where you're likely to run up against values that can't be compromised, the solution is not to just offer more reasons and evidence, since your audience is far more likely to discount your information than they are to alter their hardened beliefs. Instead, advocates need to reframe the appeal so as to lead away from those sacred values. The piece by Frank Rose in The New York Times contains a good example drawn from the research: "When Professor Tetlock and a colleague asked people about President Bill Clinton’s practice of rewarding big campaign donors with a night in the Lincoln Bedroom, they got varying reactions depending on how the question was phrased. If they presented it as an economic transaction — pay $250,000 or more and get a night in the White House — even Clinton supporters were indignant. But when the practice was painted as the kind of thing you’d do for a friend, much less outrage ensued."
3. Handle Damage Appeals Carefully
Playing off that example, one common finding in the research is that a particular hot button for moral outrage is money. Researchers found that in cases involving sacred values, mentions of money frequently led to a backlash and a desire to protect the principle that supersedes monetary value. "Whatever the circumstances," the Times piece warns, "money seems a subject best avoided." That is a problem, of course, in the civil trial where, as the plaintiff's expression goes, "money is our only tool for measuring responsibility." It is obviously dangerous for either side to ignore money in a civil litigation context, but litigators need to put the dollars in perspective: Focus to a greater extent on the nonmonetary principles of justice at stake, or the practical benefits or harms of awarding money, and avoid featuring that monetary appeal as either the first or the last words out of your mouth.
Other Posts on Deeply Held Beliefs and Language:
- Consider Evil
- Know Your 'God Terms' and Your 'Devil Terms'
- Take It From Rep. Joe Barton: Don’t Be A ‘Friend OfThe Devil’
Berns, G. S., Bell, E., Capra, C. M., Prietula, M. J., Moore, S., Anderson, B., & Atran, S. (2012). The price of your soul: neural evidence for the non-utilitarian representation of sacred values. Philosophical Transactions of the Royal Society B: Biological Sciences, 367(1589), 754-762.
Kahneman, D., Schkade, D., & Sunstein, C. (1998). Shared outrage and erratic awards: The psychology of punitive damages. Journal of Risk and Uncertainty,16(1), 49-86.
Miller, M. K., Dimitrov, J., Bornstein, B. H., & Zarker-Sorensen, A. (2013). Bibles in the jury room: Psychological theories question judicial assumptions. Ohio NUL Rev., 39, 579-657.
Tetlock, P. E. (2003). Thinking the unthinkable: Sacred values and taboo cognitions. Trends in cognitive sciences, 7(7), 320-324.
Image Credit: Joshua Smith, Flickr Creative Commons (Background removed by Nick Bouck)