Attributing Blame: The Psychology of Blame and Its Use in Trial Strategy

by Jeri Kagel, M.Ed., J.D.

When something bad happens, it is human nature to want to blame something, or more often, someone. Identifying a source for blame provides closure for past wrongs, gives a sense of present control, and often eases fear of future harm. In a trial, be it civil or criminal, jurors are asked to determine blame. Twelve people who are strangers to each other, strangers to the parties, and strangers to the situation on trial must decide who or what is to blame, and the degree of blameworthiness.

So the question is how can a trial attorney influence how jurors attribute blame? The answer lies in understanding the psychology of how blame is attributed. The psychological inquiry into attributing blame is amazingly rich and complex. This article provides a short overview of one theory that is particularly useful to trial attorneys: Attribution Theory.

Attribution Theory suggests that people use two categories when determining the cause of an event: external causes and internal causes. External causes originate outside the actor. They are situational or environmental. Take for instance a car accident on an old road on a rainy day. The driver may fault external conditions, like standing water and low visibility, rather than his own driving. Internal causes come from within the actor. In the same car accident, for example, the injured party may fault the driver for choosing to drive too fast for conditions, or for not using his headlights despite the poor visibility. When people perceive an event to have an internal cause, they are likely to blame the actor rather than the environment.

Attribution Theory helps attorneys develop trial strategies such as which jurors to strike, how to structure the case, what evidence to present, and how to present it. A plaintiff’s attorney will often want to point to an internal cause so that jurors can blame the actor. Conversely, a defendant’s attorney will want to emphasize an external cause so that jurors blame the environment or situation rather than the actor. I have found that Attribution Theory can aid trial strategy in four specific ways.

Four Trial Strategies Using Attribution Theory

1. Portraying the Actor’s Alleged Wrongdoing
The first trial strategy involves mitigating blame when portraying the actor’s behavior. Mitigation may be accomplished by applying three tactics.

First, consistency mitigates blame. Counsel should portray the actor’s behavior as consistent with previous actions in similar situations. Showing that the action was typical for the situation focuses attention on the situation rather than the actor, making it more likely for jurors to blame an external cause. Opposing counsel can counter this mitigation tactic by illustrating how the action was atypical or inconsistent in order to focus jurors on blaming the actor.

Second, consensus mitigates blame. Counsel should show that the actor’s behavior was not only typical for the actor, but typical for anyone facing a similar situation. Opposing counsel will want to show that the behavior was not just atypical for the actor, but would be abnormal for anyone facing a similar situation.

Finally, plausible reasons mitigate blame. When the actor’s behavior is unlike what he typically does, or different from what others would do, it is imperative that counsel acknowledge that difference and give jurors a plausible reason explaining the variance. Even if jurors do not understand the behavior, they may understand the motivation.

2. Humanizing Your Client
Defense attorneys have often heard that it is important to humanize corporate clients, but this advice is equally applicable to all attorneys and all clients. For both sides, humanizing the client is not just a matter of presenting a human face at trial. It also involves creating ways for jurors to get to know your client. One way to assist jurors in recognizing the humanness of your client is by offering analogies in your opening statement between what jurors know or experience in their everyday lives with the actions of your client. Another important aspect of “humanizing” either party’s case is to spend time preparing your party and your witnesses to testify in ways that create warmth and credibility.

3. Do Jurors Need to Like My Client?
Liking is nice, but not necessary. Even if jurors do not like a party, they may still find in his favor if they believe his account of what motivated him, what his goal was, or what his thought processes were in making the decisions. For the less-than-sympathetic plaintiff, it is important to also let jurors know how and why the plaintiff made the decisions he made after being injured, and what the underlying facts and feelings are with regard to his damages. You may tell jurors that while they may not like your client, you will show them reasons to understand why your client did the best that could be done.

4. Do Jurors Need to Identify with My Client?
Be careful! Deciding to keep jurors who appear to identify with your client can be problematic and should be determined on a case-by-case basis. If there is any alleged wrongdoing on the part of your client, jurors who are of the same demographics and have exhibited the same behavior as your client may want to distance themselves from the alleged wrongdoing by distancing themselves from the actor. For example, in a personal injury case that involves an allegation of contributory negligence, a juror who too closely identifies with the plaintiff may think, “That’s never happened to me, so the plaintiff must have done something different than I do, and therefore, must be to blame.” This reaction is a kind of self-preservation, a way of thinking that the same bad result would not and could not happen to them.

Who jurors decide to blame is pivotal to your success at trial. All aspects relevant to the preparation of your case – creating a theme that ties the different aspects of your story together, crafting voir dire questions, designing an opening statement, and evaluating whether and how to present evidence – should be done with an understanding of and an eye toward how people attribute blame.