Cover Story: Cynicism Enters the Courtroom
|by George Hunter, Ph.D.||
Winter 2006, Vol. 68, No. 4
Through the voice of Linus Van Peltthe popular character from the Peanuts comic stripmany of us were presented with our first glimpse of cynicism when he said, I love humanity. Its people I cant stand.
With his unbridled optimism and a security blanket to shield him from the dangers of the world, Linus captured the hearts of cynics everywhere, but we never really knew it.
Whats even more compelling is that many people, including a vast number of people involved in the legal processjudges, juries, witnesses, plaintiffs and defendantsmisuse the term cynicism. Although it has many associations, cynicism has a finite definition.
Cynicism is not, for example, the same as skepticism, pessimism, sarcasm, ill temper or misanthropy. Cynics are not just sour and hateful, nor are they unfeeling or unsympathetic. In fact, cynics are actually much the opposite. Underlying the cynical attitude is a perception that life could be different, were it not for the self-interested behavior of others. Cynics have an abiding idealism about humanity and how the world should be, but their beliefs are offset by the thought that all human behavior is motivated by self-interest.
But lets leave psychological theory for classrooms, and talk about why cynicism is gaining increased interest from the law. Consider recent current events:
- Our national business community fell under elevated public scrutiny after the financial misconduct of Enron and WorldCom, among others. This has led politicos to call on more diligent policing of accounting practices, notwithstanding the suspicious business history of some of the countrys leaders.
- The Catholic Church has come under fire for allegedly covering up the sexual misconduct of some priests currently presiding over parishes.
- Martha Stewart, a symbol of grace and charm, has been convicted of stock fraud and has served prison time for her offense.
And lets not forget scandalous activity in athletics, government, pop music, advertising and a host of other industries. Cynical tendencies that emerge from consideration of the negative details of our lives steadily spiral into a cynical worldview, implicating everyone. Cynicism is not confined to big business, politics or religion, but affects our perceptions of our friends, family and colleagues.
With its attempts to resist and subvert social themes, cynicism has become a social theme, and has provided an added twist to much of todays complex litigation. The maverick in todays society is no longer the jaded discontent but, instead, the unabused believer who withstands cynical conversion. It is not surprising, then, that psychologists have found that roughly half of all Americans can be classified as cynics, although many may not view themselves as such.
Cynicism in the Legal System
Cynics are disillusioned idealists who wish that the world would be different, but believe that the greatest barrier to change is humanitys own nature. Cynicism is an irony, and develops as a reaction to dashed hopes and obvious imperfections of a materialistic, demanding and manipulative society. Cynicism acts as a defense mechanism for the cynic, who is responding to what is perceived as an increasingly and hopelessly corrupt world.
Social scientists have studied many aspects of cynicism, relating, for example, to health, organizational and work issues. Yet, the role of cynicism in juror decision-making has yet to be extensively investigated. There is virtually no aspect of the courtroom experience that is beyond jurors ability to be cynical, considering the behaviors of plaintiffs, defendants, attorneys, witnesses, the judge and even fellow jurors are fair game.
As part of our ongoing research into jurors perceptions and influences, we examined the effects of cynicism on juror decision-making using mock juries in civil litigation and criminal research. Although cynicism is not related to verdicts in all cases, we discovered that, on a case-by-case basis, cynicism could be a very powerful predictor of which side jurors tend to favor. Cynical jurors are not more likely to systematically favor plaintiffs or defendants. Case-specific facts, however, can increase the likelihood of cynics favoring a particular side.
Due to case specifics, it is difficult to know in advance how cynicism will ultimately affect jurors perceptions. Because roughly half of the population qualify as cynics, it is almost guaranteed that cynics will appear on a jury. Cynicism is not as immediately obvious as race or gender, however; it is a hidden, but persistent demographic. As with any other demographic issue, it is not possible to make blanket predictions about how it will affect every case.
Recently, there was a case where a pharmacy allegedly dispensed the wrong medicine, thereby poisoning the child. They admitted having made a mistake in the prescription, but argued that this mistake had not caused the childs brain damage.
In this instance, cynics are more likely to favor the plaintiffs because the defense for the pharmacy appeared disingenuous. This refusal to take personal responsibility for what was an uncontested mistake angered cynics; in pretrial research, cynics were more likely to favor the plaintiffs than were non-cynics.
In a different case where a wealthy businessman was accused of bribing officials, cynics were actually more likely to favor the defense. Because cynics see a corrupt world everywhere they turn, the businessmans behavior was not all that different from what they expected other people would do in the same position. Consequently, cynical jurors were less alarmed by his behavior and were not as punitive as non-cynics.
Cynicism and Damage Awards
Although cynicism does not cause jurors to systematically favor either defendants or plaintiffs in litigation, it does have some predictable effects on how jurors approach damages.
As with much of cynicism, however, this varies by the particulars of the damages. Our research has shown significant effects of cynicism on both compensatory and punitive damages, but these effects go in opposite directions.
For compensatory damages, we have found that cynicism is positively related to award sizes; the more cynical a person is, the higher the likely compensatory award. Although cynics believe that people pretend to care about each other more than they really do, most cynics themselves actually care very much about others. Cynicism is an attribution about how others feel and why others behave as they do.
For example, in a case like Martha Stewarts, cynics would be more likely to believe that she and her broker were guilty of misconduct, given the cynics general belief that people have selfish and dishonest motives. That does not mean, however, that cynics would personally be more likely to engage in stock fraud. Cynics attributions about others are not reflections of their own personal behaviors. Instead, the attitudes of cynics come from the position of frustrated observers.
Cynics believe that, because of peoples ultimately selfish natures, others are less likely to help people in need. Given the opportunity to help others, cynics are eager to do so. This brings to balance for cynics how the world is compared to how it should be. Interestingly, our research has revealed that this effect is enduring. Mock jurors in our exercises who have served as actual jurors are less cynical than those who have not. Being a part of the system and the justice process leads to a more optimistic outlook on humanity.
For punitive damages, however, the effect of cynicism runs opposite of what is observed for compensatory damages. The more cynical a juror is, the lower the punitive damages. Because cynics believe that it is in peoples nature to be dishonest and self-interested, there is little use in punishing selfish or dishonest behavior. Human nature will remain unchanged, and the punishment will likely have no effect on the defendant.
Going back to the case involving the pharmacy and the brain-damaged child, cynics were more likely to award higher amounts for compensatory damages, but awarded less in punitive damages. Although cynics had been angered by the pharmacys deflection of responsibility, this anger did not increase the size of their punitive awards. Instead, more focus was placed on compensating for the harm done.
Neither effect of cynicism on damages is likely to occur as a conscious process. Many cynics may not even realize that they are, in fact, cynics. Cynicism is pervasive enough in our culture that it is relatively normal. Thus, cynicism and its effects may occur outside the immediate awareness of jurors but still be contributing to how jurors perceive and respond to a case. Identifying the role that cynicism will have in a case will have implications not only for the jury selection phase of the trial, but also in how the case is presented.
When dealing with cynicism for any case, attorneys are faced with essentially two choices: remove the cynics from the jury, or understand how cynical jurors are likely to respond to the case and deal with that accordingly.
If the choice is removing cynics, the careful use of voir dire or supplemental juror questionnaires can determine who the cynics are on the jury. Cynics do not systematically favor plaintiffs or the defense, so there is no easy rule about how to handle these jurors.
As with all jurors, cynics responses to a case depend more on how the facts of the case are explained than on jurors predispositions. For example, in a case that has some harmful documents, the defense could be that the individual writing those documents was unqualified to do so or was writing about an area outside of his role or his expertise. Attacking the documents through the author, however, would likely not play well with cynical jurors. These jurors already expect that individuals or companies will do whatever is necessary to protect their self-interest, including the betrayal of an inside employee.
Because cynics expect bad behavior in people, the presence of unflattering company documents will not surprise them. Yet, their cynical attributions need not be automatic points for the plaintiffs. In fact, they can be turned against plaintiffs by emphasizing the cherry-picking nature of the case. One could instead argue Of course there are negative documents, there are bound to be some somewhere. But the plaintiffs are being very particular about what they show you; they want to exaggerate the negative. Such an argument targets the cynics expectations that people will use unfair tactics in order to gain an advantage.
Another common issue is how a company dealt with regulations and how it behaves today. Because cynics expect that people only behave honestly when they are forced to do so, they will also expect that companies will follow regulations only when compelled to or when it is in the companys self-interest.
Cynics do not believe that people are altruistic, so they will not accept an account of good behavior as done because it was the right thing to do. Although philanthropic or selfless acts may be thought of as a way to redeem a company in the eyes of some jurors, they are unlikely to persuade cynics. If there is not some other self-interested motive provided, cynical jurors will fill in the blanks themselves, usually creating a more negative image of the company than had been expected. Instead, accept that the company saw an opportunity to benefit from some of its generosity; doing so will not only match the self-interest expectations of the cynic, but it will also help satisfy the standard that cynics have about what people should do for each other.
Should is one of the most defining characteristics of cynics, even beyond negative expectations of their fellow humans. Cynics believe that people should act nobly, and are frustrated that people continue to fall short of the ideal. Consequently, one of the most dangerous elements of a case for the defense is what they should have done differently.
If the case is about warnings, for example, cynics will easily seize upon the idea that the company only warned about what it had to, but that it should have done much more.
Once the role of cynicism has been identified for a specific case, one should know whether cynical jurors will be favorable to ones side or should be identified for removal from the jury.
Statements that can assess cynicism include:
- Most people inwardly dislike putting themselves out to help other people.
- People claim to have ethical standards regarding honesty and morality, but few people stick to them when money is at stake.
- Most people make friends because friends are likely to be useful to them.
- Many people exaggerate their misfortunes in order to gain sympathy.
For each of these statements, agreement reflects possible cynicism. Because of the nature of cynicism, however, one should not attempt to reverse the phrasing of the items. For example, if sixty percent of people agree with the statement, Most people are not really honest by nature, this does not mean that forty percent would agree if we removed not. Each statement is designed to measure those attitudes toward which a cynic would resonate. Although reversing the phrasing of each item might make them seem more idealistic, remember that cynicism is not the opposite of idealism. In fact, idealism is an important underlying component of cynicism, albeit frustrated.
Follow-up with jurors is also important. A juror may agree with a statement like, Most people are just out for themselves, but may do so without any particular value judgment. For many people, including some psychologists and sociologists, there is no such thing as true altruism; every behavior has self-interest at its core. Absent a feeling that people should be different, however, this is simply a description of why people act as they do.
For the cynic, there is an unspoken or implied should that accompanies agreement with cynical statements. For example a cynic would agree with the statement, People pretend to care more about each other than they really do, and believe that people should care about each other more. From a cynics point of view, people should also look out for each other more, be more honest and be faithful to their moral principles. By following up with jurors during voir dire, one can distinguish between jurors who essentially accept the relative selfishness of humanity from the cynics who are frustrated by a world that continues to disappoint their ideals.