Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

A jury’s decision in a case will often come down to their view of fairness. That word, of course, is subjective. However, even when jurors delve into the legal instructions and understand those instructions, they often find that the law opens the door to those subjectivities, hinging as it often does on what is “reasonable.”  A jury deciding a commercial case, for example, won’t have to stretch too much in order to find a role for their own personal views on fairness when deciding “good faith and fair dealing” or “unjust enrichment.” Just what “fairness” means is going to vary based on the individual. We are also learning that it varies in some predictable ways based on political attitudes.

The Atlantic published a recent article entitled, “Why Conservatives Hate Warren’s Loan-Debt Relief Plan,” authored by psychology professor Dan Meegan. The writer specializes in views on fairness and is authoring a book on its political components. The Atlantic article focuses on Senator Elizabeth Warren’s plan to cancel student debt, providing up to $50,000 in relief for an estimated 42 million Americans who are paying off college loans. Predictably, liberals and conservatives react differently to this idea, with liberals emphasizing the goal of helping out people in need and conservatives emphasizing the inequity of some people receiving assistance, while others (those who paid their loans or didn’t borrow in the first place) don’t receive help. To Meegan, this highlights two sometimes incompatible views of what fairness means. On the one hand, we can define “fairness” as giving to those who need — and, yes, taking from those who don’t. Or, on the other hand, we can define it as proportionality in what one deserves, or “getting what you give.” These two views matter in litigation. In this post, I’ll unpack the differences and the implications.

The Different Meanings of Fairness

According to a need-based view of fairness, some have more than they need, some have less. “Fairness” means bringing the two closer to balance. Those supporting Warren’s plan, or calling for student loan relief more generally, have emphasized that relief helps to address a looming loan crisis and aids people who are stuck because they are still paying loans.

According to an equity-based view of fairness, however, the key is proportionality, and the ability to get a return on one’s investment or to get back what one has given. When conservatives support social programs like Medicare or Social Security, it is often on that basis: It is about getting back what one has paid in, more than it is about addressing a need. These folks will say Warren’s plan is unfair because some people had to repay their loans, maybe making sacrifices in the process, while others will get their loans forgiven.

This conservative view of fairness, the authors argue, is deeply rooted in the development of the brain and is supported by a variety of behavioral studies. While liberals might discount that feeling, arguing against Warren’s critics, for example, that “We shouldn’t inflict economic misery on others just because we had to get through our own economic misery,” they ignore the equity-based view of fairness at their peril. The bottom line is that if addressing a need creates a situation that seems inequitable, many will reject that solution even if it means leaving a need unmet.


The litigation process is a formal mechanism for addressing needs in a way that is equitable. As such, it addresses both views of fairness. However, litigators thinking about their message should give some thought to addressing each.

Address the Need

At the heart of a case is some kind of harm of deficit. That is easy to find in personal injury and wrongful death cases, and can be more of a challenge in more abstract cases. But it still exists and is still an important part of the appeal. For a patent jury, for example, it isn’t just about the analytical exercise of interpreting and applying the claim language, it is about the disadvantage and the loss that occurs when someone else is able to gain the fruits of our labor.

Address the Equity

Also at heart of a case is also an exchange-based calculation: Someone did not get what was promised or deserved. Even in a personal injury case, where the need might be profound, there is also the lack of an equitable result: A customer had a reasonable expectation of safety and did not get that safety; or a worker had a social or a literal contract that promised safe conditions and did not get these conditions.

And Reconcile the Two

Procedurally, the legal system favors an equity-based view: People get damages because they deserve them, not because they need them. For that reason, your arguments speaking to equity should be direct and explicit. However, the issue of need will still be present psychologically, so appeals that speak indirectly or implicitly to resolving an unmet need are also important. This is why a personal injury plaintiff’s attorney speaks not just about what the defendant deserves to pay, but also about the potential for rehabilitation and a life-care plan to create a better life for an injured person. For defendants as well, a combined focus on “does not deserve” and “does not need” can be helpful, with the liability and causation cases focusing on the former, and with the alternative damages figure focusing on the latter. The bottom line for civil litigators is to think about fairness and what it might mean to different people.

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