Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm: The presence of more than one party on the defense side of the courtroom can create an interesting dynamic. In the heat of negative evaluation, it might be psychologically comfortable for some defendants to have company, creating the feeling that “we’re all in the same boat.” And, more practically, it can create opportunities to share resources, work together, and present a united front as long as the parties are aligned. Ultimately, however, there is good reason to believe that more defendants can mean more trouble for any individual defendant. The presence of a group on the defense side can reinforce the plaintiff’s story that something serious has gone wrong — so wrong that there are a number of individuals or organizations at fault. The belief that multiple defendants can lead fact finders to a greater chance of perceiving harmful wrongdoing receives support in a recent study published in the journal, Psychology, Crime, and Law.
The study (Wilford et al., 2018) focuses on a criminal trial setting, but its findings seem likely to be of interest in civil trial settings as well. Using video-recordings of a full trial (including pre-instructions, openings, testimony, closings, and instructions), the researchers compared single versus multiple defendants when the evidence against those defendants was either strong or weak. The result? It doesn’t help either party to be in the same boat. “When the defendants were tried together,” they conclude, “overall conviction rates for both defendants increased relative to when they were tried alone.” While it remains to be studied in a civil suit, there is good reason to believe that jurors will approach findings of liability and damages in much the same way that they assign criminal responsibility, especially in cases involving death, injury or other significant personal loss. Watching mock trial deliberations, for example, it is very common to see jurors even using the terms “guilty” or “innocent” when referring to civil defendants. In this post, I’ll take a look at what the multiple-party effect might mean for litigants.
Plaintiffs (Partially) Benefit from Company
The article cites research on the effect of multiple plaintiffs in a civil trial, with much of it pointing toward a greater tendency to find liability as well as to find, generally, that the harm has been greater. That stands to reason, but one finding that might be less intuitive is that in some cases, the greater the number who experienced a loss, the less unique and the less shocking it seems. For example, if the hack of consumer data from Equifax ever goes to trial, it will be a problem because it affects 143 million Americans including, in all likelihood, the jurors. Even in more conventional class-action lawsuits, some research cited by the authors shows that outlier plaintiffs who experienced greater injuries than average are likely to receive less than they would have if they had gone to trial on their own. So a group on the plaintiff’s side may raise the perception of harm, but may also level the field.
But Defendants Don’t: The Other Defendant is Another Plaintiff
While a number of plaintiffs sends the message of “general harm,” a number of defendants sends the message of “general blame,” and that blame tends to bleed across the parties. The researchers refer to it as the problem of “joint evaluation.” There is a tendency for any evaluation to be influenced by comparison, and a “hot day” is even hotter if the previous day was very cold. In the case of multiple defendants, that suggests the inevitability that they will be compared to each other. “Judgments of each defendant,” they write, “can be impacted by how participant-jurors perceive them to compare with one another.”
The implication is that even if defendants are generally aligned, it is best to strategize as though, at least in part, the other defendant is another plaintiff. In other words, they can still make you look bad if you compare unfavorably to the other defendant. If they took proactive steps to avoid a problem and you didn’t, expect your liability to increase. If they are communicating a message of sincere contrition and you aren’t, expect to be on the hook for more damages. So part of your “We acted responsibly” message should be “…at least as responsibly as anyone else.”
And Instructions Don’t Solve the Problem
Of course, the psychology of joint evaluation isn’t a legally appropriate way to evaluate. Whether in a criminal or a civil context, the defendants are supposed to be evaluated on their own merits, and the comparison to another party should neither help nor hurt you. That is what the instructions say. But unfortunately, that isn’t how human psychology works. In order to be realistic, the researchers included common instructions on multi-defendant evaluation in all of the experimental conditions, and still observed a significant bias in favor of conviction in multi-defendant cases.
That doesn’t mean courts should not instruct. The bias may have been worse without instructions (something the researchers did not test), but it is safe to say that the instructions cannot be relied upon to remove the disadvantage of a multiple-defendant situation.
Despite the bias, multiparty cases are likely to continue in both criminal and civil settings. In addition to the time- and research-based reasons for this, there are also factors the researchers did not test, like the ability to implicitly point to the “empty chair” of a missing defendant when cases are tried separately, that suggests that separating trials wouldn’t be fair to plaintiffs. While there can be situations where parties can exercise a limited choice, it typically isn’t possible to avoid multi-defendant scenarios. But it is important to be realistic about it. Jurors aren’t supposed to assume liability or harm based on the number of those accused, and they aren’t supposed to compare one accused with another. But they will. So prepare for that.
Other Posts on Multi-Party Litigation:
- Check Your Alignment in Multi-Defendant Litigation
- Take Some Lessons on Creative Distancing from the GOP Nomination
- Count Your Plaintiffs Before Certification Hatches: Class Size Matters in Some Unexpected Ways
Wilford, M. M., Van Horn, M. C., Penrod, S. D., & Greathouse, S. M. (2018). Not separate but equal? The impact of multiple-defendant trials on juror decision-making. Psychology, Crime & Law, 24(1), 14-37.
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