Political Affiliation and Jurors’ Verdict Orientation in Personal Injury Cases

There are key individual differences between liberals and conservatives that affect how jurors view cases and their verdict decisions. Researchers have found that liberals generally experience more empathy and were more willing to help others than conservatives. Y. Hasson et al., “Are Liberals and Conservatives Equally Motivated to Feel Empathy Toward Others?,” 44 Personality & Soc. Psychol. Bull. 1449–59 (2018). However, conservatives experienced more empathy toward ingroup members (people they were similar to) than outgroup members (people they are dissimilar to). Based on Pew Research Center polls, Republicans today are more likely than Democrats to say that poor people have it easy compared with polls in the 1990s. S. Smith, Pew Research Ctr., “Why people are rich and poor: Republicans and Democrats have very different views,” Fact Tank, May 2, 2017. Moreover, their research has found that compared with Democrats, Republicans believe that people are personally responsible for their financial situation. Republicans are more likely than Democrats to indicate that people are rich or poor because of their efforts, while Democrats are more likely to point to a person’s circumstances. The results of this research have clear implications regarding how liberal and conservative jurors view plaintiffs in personal injury cases.

Moral foundation theory provides a framework for understanding why liberals and conservatives differ in how they evaluate personal injury cases. At trial, jurors will need to make moral judgments about who should win and the amount of damages, if any, that should be awarded. If jurors relied on the same moral judgments for making verdict decisions, however, jurors would all agree on the trial outcome. 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 first and then seek information to support their respective views.

Moral foundation theory states that people use five foundations for making moral decisions that are based on our motives for group inclusion and cohesiveness. These moral foundations are based on concerns for care versus harm, fairness versus cheating, loyalty versus betrayal, authority versus subversion, and sanctity versus degradation. Below is a description of each of the five moral foundations and how different case types lend themselves to the application of different moral foundations.

1. Care/harm: This moral foundation relates to our role as individuals to care for others. Underlying this moral foundation are virtues such as kindness, empathy, and nurturance. Jurors will use this moral foundation to determine whether defendants acted safely and in the interest of the general public. Cases in which this moral foundation is used by jurors tend to involve insurance defense, catastrophic accidents, and product liability matters.
2. 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 who use this moral foundation are concerned with issues such as justice and fairness. Antitrust and trade secret cases often deal with these issues as they pertain to whether defendants acted fairly or cheated in order to obtain a competitive advantage.
3. Loyalty/betrayal: The basis for this moral foundation stems from our evolutionary history of living in groups. Accordingly, this moral foundation is based on individuals’ need for a sense of belonging and their fear of rejection. This moral foundation may be relevant in contract cases in which one party betrayed the other when deciding to leave the relationship. Patent cases may also involve issues reflecting loyalty and betrayal as one party may be perceived as copying or stealing ideas from its competitor.
4. 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 as well as deference to authority and traditions. Employee litigation may involve issues pertaining to whether an employee disregarded company policies or an employer abused its authority. As mentioned above, many other types of litigation involve issues relating to whether one or both parties followed rules or industry guidelines (or both) and thus acted appropriately.
5. Sanctity/degradation: This foundation is based on our visceral reaction to avoid activities and contaminants that disgust individuals. From an evolutionary perspective, this allows individuals to avoid potentially harmful activities that could cause injury or death. In the legal context, disgust can be observed when people accused of crimes 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 cases involving corporate greed and misconduct. In environmental cases, jurors may experience disgust when hearing about instances of companies’ alleged illegal polluting and dumping.

Fundamental to the theory is that people differ in their use of these moral foundations for making decisions. 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’ reliance on these moral foundations account for their voting preferences. For example, compared with conservatives, liberals are more concerned with moral issues involving harm and fairness. In contrast, conservatives view morality through the prisms of authority and sanctity. According to this research, these differences explain why liberals focus more on issues involving justice while conservatives are more persuaded by messages that center on authority, rules, and protecting vital institutions.

The theory suggests that jurors will often differ in the extent to which they use these five moral foundations for determining the outcome of a trial. In a personal injury case, liberal jurors will be more sensitive to issues involving care versus harm and will be predisposed to be more sympathetic to the plaintiff and to punish the defendant. More conservative jurors’ moral judgments may be based more on issues involving authority versus subversion. Such jurors may be more attuned to whether the plaintiff and defendant followed rules and industry guidelines or whether the plaintiff has responsibility for causing the accident.

Consistent with this theory, our internal research across multiple jury research studies has found that, on average, conservative jurors award 15 percent less than the mean damage award. In contrast, liberals award 8 percent more than the average award. Thus, the average difference in the amounts awarded by liberals and conservatives is 23 percent. These findings indicate that in a personal injury trial in which millions of dollars are at stake, the political affiliation of the jurors can have a large impact on the damages awarded. The results are in line with experiences in “judicial hell holes” such as Bronx County, New York; Cook County, Illinois; Los Angeles County, California; and Philadelphia County, Pennsylvania, which have a large proportion of liberal respondents and are also known for large jury damage awards.

Societal trends indicate that people are becoming less likely to change their preexisting views. Narcissism, which is generally defined as excessive interest in or admiration of oneself, has increased over the past several decades. Jean Twenge, a professor of psychology at San Diego State University, and her colleagues have found that there has been a 30 percent increase in the number of individuals who are above the mean reported between 1979 to 1985. These researchers cite the pervasive use of social media as a key reason for this trend, which encourages people to continually promote themselves. Moreover, these researchers note that parents today are more focused on raising children to believe that they are special. As research has shown that liberals and conservatives are equally likely to be narcissistic (P.K. Hatemi & Z. Fazekas, “Narcissism and Political Orientations,” 62 Am. J. Pol. Sci. 873–88 (2018)), these jurors may be enamored with their viewpoint and less likely to change their minds during the trial or while deliberating.

Implications for Trial

Attorneys may further bolster their case by framing arguments using specific terminology that resonates with jurors’ political orientation. Research conducted on these moral foundations has shown that individuals use specific language that describes these moral foundations in terms of virtues and vices. As a result, attorneys may use this research to develop themes and storylines and to craft messaging that appeal to liberals and conservatives and describe their client’s actions in a positive light while setting a negative moral tone for their adversary’s behavior. The language underlying a particular moral foundation may be used through trial by employing such terminology during openings, witness questioning, and closing arguments and with any accompanying demonstratives.

The above findings also have important implications for jury selection strategy. During jury selection, attorneys are typically unable to ask jurors to indicate their political orientation. However, this information, as well as a prospective juror’s political engagement, can be obtained quickly through background checks. As our internal jury research on the correlation between political affiliation and damage awards suggests, this information can help our clients use peremptory strikes most effectively. Moreover, by identifying the moral foundations jurors might use for making verdict decisions, attorneys are much better able to identify jurors favorable to their case and to craft the themes and trial story that will most appeal to jurors at trial.

Eric Rudich, PhD, is a partner and senior litigation consultant at Blueprint Trial Consulting.

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