By Thomas M. O'Toole, Ph.D., Kevin Boully, Ph.D.
Imagine a civil lawsuit where the defendant is either a corporation or an individual and is either wealthy or not. Consider all four possibilities: a wealthy corporation, a wealthy individual, a non-wealthy corporation, a non-wealthy individual. If all other case facts against those four defendants are identical, what factors make jurors more likely to find against one type of defendant? And why?
In a compelling 2025 report, Dr. Breanna Rosales and colleagues studied these defendant characteristics in three different types of civil suits. Perhaps unsurprisingly, jurors were more likely to find a wealthy corporation liable than an individual (wealthy or not). But what if wealth isn’t the real reason jurors did so?
It turns out that something called moral agency is the key driver. Simply put, moral agency is power — the perceived capacity to commit immoral acts. We often talk about power when working with our clients, because jurors often talk directly and indirectly about power when evaluating responsibility and culpability. Jurors translate perceived power into responsibility based on how entities (including people) use their power. Does a party or key witness make reasonable, ethical choices, or not so much?
A powerful agent, with resources, smarts, sophistication, and expertise, must use that power responsibly, or jurors will identify a path to find them at fault — whether plaintiff, defendant, intervening party, or witness. In this column, we explore the role of perceived power in jury economics and provide three strategy considerations for using empowerment to power your advocacy.
The study by Dr. Rosales and colleagues found that wealth increases moral agency for both corporations and individuals, and that compared to individuals, a corporation has higher perceived agency and less likelihood of being a victim. Resources equate to power. No surprises there, but it should influence your thinking about parties, key witnesses, and potential jurors. Most important in the study: Moral agency, more than wealth or corporate status, led to confident assignments of fault. The mock jurors were more likely to find a defendant with greater agency liable and were more confident in their liability verdicts when the defendant had greater agency. Power increases the risk of being found at fault and boosts fact-finders’ confidence in that finding.
Jurors’ perceived power matters, too. Jurors’ sense of their own power, and how it should be used, influences how they view your case. In everyday behavior and in our research, we see that people with less perceived power in their lives are quicker to perceive litigants as powerful entities whose power needs to be checked. This thread of egocentrism — relating the outside world to ourselves and our position in the world — is central to jury economics, and to our theory of how jurors make decisions.
Today, we see mock jurors take increasingly reactive and unflinching positions in deliberations, often leading to more conflict and more disagreement in mock jury discussions. It’s not just us. In Orrick’s 2025 survey “Into the Minds of Americans,” responses from 1,300 jury-eligible Americans showed increases in people’s individual sense of right and wrong: 65% said they are now willing to take matters into their own hands when the law does not support their idea of justice (up by 13% from 2022), and 72% say it is a juror’s job to send a message to corporations to improve their behavior (up by 10% from 2022).
Americans’ lost faith in the moral use of power is not relegated to litigants. According to the “Trust in Justice” survey led by a group of our colleagues including Richard Gabriel and Michelle Rey LaRocca, around 50% of jury-eligible Americans think judges are somewhat or completely biased when making decisions on cases, and nearly 65% feel that Supreme Court Justices are somewhat or completely biased in their decision-making.
What Can You Do?
- Attack or Empower. Attacking your opponent’s credibility is not always the best strategy. Jurors distinguish between the parties and witnesses they believe (credibility) and the parties and witnesses they trust to do the right thing (morality). When attacking credibility, you might also be minimizing agency and perceived power. This can reduce jurors’ tendency to assign responsibility. Instead of starting with how to attack your opponent and destroy witness credibility, look first at how and when you can endorse them, build them up, and empower them as a powerful moral agent that jurors should hold accountable. Then, be consistent. Don’t ask jurors to believe that a key witness in a trade secrets defense is a cunning and sophisticated business strategist, then undermine their credibility with petty nitpicks about their inconsistent work history or ineffectual business management.
- Build Power at Every Step. This means looking for all possible ways to help a jury see a party or person as having power and resources. No example is too small. For every choice they made, there was power that enabled it. Explore how a key witness has power in their occupational role, financial success, employment agreements, and health. The more relevant to the ultimate moral transgression at issue, the better, but even a few small things can matter. Let’s look again at a trade secrets claim. Does the sophisticated businessperson accusing your client of misappropriation have power and choices in their professional role? Have they advanced and taken on greater responsibility? Demonstrate and build up that change. Identify choices they make in their role, no matter how small. Give them credit for enacting plans, taking action, enlisting supporters, and causing change. These are elements of power that equate to moral responsibility.
- Empower Jurors. People want to feel good. They want to make a decision that solves a problem in a satisfying way. When attorneys enter trial, they are asking jurors to decide in favor of their client. But what can jurors feel good about if they find in favor of your client? Think of a case you are working on now. Can you articulate in a single sentence what jurors can feel good about if they find in favor of your client? What is the psychologically satisfying statement they are endorsing with a verdict in favor of your client? What about finding in favor of your client is gratifying? Moral agency, and how your client used its power to make moral decisions, can lead directly to your statement of satisfaction and can empower jurors by telling them directly what a decision can achieve: “Do not let a powerful business get away with theft without paying the consequences.”
Moral agency and the perception of power are central to how jurors view the world and everyone they encounter in a trial. The egocentric pillar of jury economics focuses on the most important challenge for trial attorneys — understanding what appeals to the jury (and influential individual jurors) and making adjustments to their case presentation to raise a more compelling question. The more compelling question touches the fabric of jurors’ life experiences, beliefs about the world, and sense of personal identity — their power sources. The attorneys who do this will defeat the attorney who is “right” every day of the week.
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.
