The grill is hot and so is the sunshine. It’s the Fourth of July, and you are at a pool party or hanging in the backyard with family and friends. The cases and clients you’ve worried about are a repressed memory, temporarily swapped for a glass of wine and the red, white, and blue. A group of teenagers talks in the corner. A younger group chases each other across the lawn. Then, over the dull hum, you overhear a friend assure his teenage son, “Mom is having a beer, but don’t worry — you’re safe.”
These are words of safety assurance we did not hear growing up in the Midwest in the 1980s. We venture these words were never spoken back then, and maybe still aren’t, in that place. Danger was ever-present, and that was regularly made clear whether parents lectured on the dangers of kidnapping, the dangers of being near street traffic, or any of the other classic fears that dominated the era. So, when we heard a friend of ours make this assurance to his teenager on Fourth of July, we began to appreciate the depth, impact, and persistence of “safetyism” in our current culture. And we thought about your job as litigators and trial lawyers.
For the last few years, many in the legal industry have been writing and talking about safetyism: the rising tendency for Americans to hold unrealistic expectations of others’ obligation to prevent or eliminate risks. Taking a bus, driving a car, receiving medical care, being at work, using products, not using products, and more — all should carry little or no risk. Perfect safety is the expectation and anything short of that is a failure on someone’s part. At least that’s what many Americans believe today.
Thus, your jury instruction might use the word “reasonable,” but safetyist jurors simply redefine “reasonable” to fit their expectations of perfect safety. For example, a reasonably designed product is one that never fails.
In this column, we explore safetyism and how it intersects with Jury Economics. How will Americans’ demand for a safe environment to live, work, and thrive in continue to influence lawsuits, settlements, and jury verdicts? How does our model of jury economics inform trial attorneys’ options and strategies for advocating for your clients?
What You Need to Know About Safetyism. Others have written fantastic and accessible material about safetyism — a term mobilized by Greg Lukianoff and Jonathan Haidt’s 2018 book, The Coddling of the American Mind — and how it influences jurors. A 2023 survey by Jill Leibold and Nick Polavin shows 92% of a jury-eligible sample think companies should take “every possible measure” to make sure their products are “100% safe.” That’s a lot. They describe jurors’ tendency as “risk aversion” that leads to vindictive verdicts against defendants who fail to meet their high safety standards — a scary combination for corporate defendants that many say helps explain nuclear damages awards. Indeed, plaintiffs’ lawyers — including Washington’s own Paul Luvera — have identified in writing these safety-centric tendencies as relevant to plaintiffs’ trial strategy, and fellow trial consultant Ken Broda-Brahm encourages defendants to remind jurors that risk has multiple sides and can apply to plaintiffs, too.
The Jury Economics of Safetyism. Jury economics is a perfect paradigm for evaluating a sweeping social phenomenon like safetyism and its influence on juries so you can develop trial strategies around it. We briefly consider three key tenets and how they inform safetyism and your active response.
Egocentric: Safetyism is about reducing the risk of personal harm to zero — or as close as humanly possible. The demand for constant safety and unrealistic expectations that come with it are inherently egocentric. Safetyists focus on protecting themselves and their loved ones, often without concern for the costs or social impact that requires. They also speak from the growing perspective of simply being overwhelmed in their lives, which forces more and more to rely on others for their safety and well-being. Assume jurors don’t trust your client or your key witnesses. Assume your only option is to appeal to what jurors already believe about the key subject matter and lightning rods in your case — what they hold dear — and let them complete and carry your arguments for you. In practical terms, this means three things: (1) anticipate (or learn through focus groups) what universal experiences jurors will use to understand and process your case so you can, (2) meet jurors at that mental and emotional place, and (3) clearly express and visualize the psychologically-satisfying, one-sentence principle that they will endorse with a verdict in your favor. It may be as simple as learning where the safetyist boundaries of personal responsibility lie with your jury pool so you can better differentiate the plaintiff’s actions from what jurors might have done if it were them. Sometimes you learn the problem is not so much the argument you are making, but instead the language choices and how certain language choices trigger safetyist views that would otherwise not be applied to the case.
Economical: Safetyism as a rationale or motivation to reach a particular verdict is miserly. It allows jurors an energy-saving shortcut in logic: safer defendant conduct would have avoided or prevented the plaintiff’s alleged injuries so the defendant must be at fault. Narrative complete. End of story. Plaintiffs persuade through safetyism by keeping the story simple and pointed toward the curable or preventable risk. As a defendant, you must provide an equally economical shortcut to victory. This often means testing various packages for your trial themes and central thematic graphics and being disciplined enough to choose the best one instead of heading to trial with a “theme team.” The answer could be a clear, well-developed proximate cause argument that offers jurors an equally compelling shortcut for thinking about the case, while boxing out all the plaintiff’s offense on the negligence element of their theory. Too often, the problem for defense attorneys is their assumption that the answer lies in the details and more education for the jurors when what the jurors really want is the defense’s 40,000-foot view of the essence of what happened.
Social: A strong safetyist theme enables a prosocial “reptilian” juror-to-juror argument that is easy to make and difficult for others to rebut in deliberations, “A verdict against the defendant will make our community safer.” But today, you must constantly update your understanding of your venue and your jury profile — including King County — given jurors’ shifting attitudes and opinions that relate to your case. Every week, we actively observe shifts in jurors’ attitudes toward safety, responsibility, and accountability as we have observed rapid and dramatic shifts in the role of politics and political alliance. In the 2023 work by Leibold and Polavin mentioned above, they identify higher education, Democratic party affiliation, urban residency, and belief in scientific conclusions (from non-corporate sources) as factors associated with safetyism. Today, we are observing less educated, conservative jurors with strong distrust of institutions who use safety as a reason to support the restriction of institutional and corporate power. You must continue to evaluate which of these clusters is more advantageous or more high risk in your case and most importantly, you must consider how your jurors will use your trial themes and evidence to interact with and argue with each other. Are you giving higher risk jurors the arguments they feel comfortable and persuasive arguing in deliberations? Or are you simply giving them the arguments that persuade you?
Conclusion. It may feel strange that your friends or family members see the world as a place that someone else is obligated to make safe. Or it may be the water you swim in and always have. When we think about the teenage son at our Fourth of July party, we wonder what his expectations will be in a few years, in 10 years, or in 20. We don’t know what prevailing social beliefs will play a central role in how he and his fellow jurors will evaluate lawsuits, or whether safetyism will still have any role at all, but we know it plays a role today and continues to evolve as quickly as we can keep our finger on it.
Thomas M. O’Toole, Ph.D., is president of Sound Jury Consulting in Seattle. Kevin R. Boully, Ph.D., is senior consultant at Perkins Coie in Denver.
