September 2015 Bar Bulletin
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September 2015 Bar Bulletin

It's Getting Hot in Here: How Anger and Frustration Drive Verdicts

By Thomas M. O'Toole and Jill D. Schmid


In 1939, five researchers from Yale University published a theory they called the "Anger-Frustration Hypothesis," which proposed that human aggression can be universally explained by the anger and frustration that come from thwarting goals that individuals seek to reach.1 In other words, preventing someone from achieving an important goal causes anger and frustration that drive extreme behaviors. In the 76 years since, other researchers have examined this theory within different contexts in relation to various dimensions of aggressive behavior.

One context that has been overlooked is jury decision-making. In fact, one of the most popular theories (Keenan and Ball's Reptile) takes an entirely different tact in its effort to explain juror behavior. Reptile suggests that large verdicts are born out of fear and perceptions of threats. Consequently, Keenan and Ball argue that any successful strategy for the plaintiff should be packaged in fear appeals - an "if you don't punish the defendant, then this could happen to you" appeal. They argue that the fear activated by a perceived threat activates the reptilian components of our brains and kicks us into survival mode, which works against defendants and leads to large damage awards.

Setting aside the fact that the science the book claims to rely upon has largely been discredited by brain researchers, Keenan and Ball fail to account for a much more powerful "Just World" reaction. The "Just World Theory" suggests that people respond to traumatic fear by differentiating themselves from the victim. For example, a juror might tell himself that he would never suffer the injuries of the plaintiff because he would make better choices. This is a simpler and more psychologically satisfying resolution of fear and it can cause Keenan and Ball's tactics to backfire.

This might leave us with no alternative theory for "runaway" juries. However, after watching hundreds of mock jury deliberations, conducting shadow juries and interviewing actual juries, the explanation is pretty clear: Anger drives large verdicts, which means our focus should be on the "Anger-Frustration Hypothesis."

In litigation, the goal that is thwarted is the jurors' expectations of how the world should work and/or how people should behave. It is a violation of the rules and values that jurors believe are important to the world that they want to live in. Typically, the defendant is the perpetrator.

The rules can be actual laws, but they can also be societal norms and ethical violations. The greater the violation, the greater the frustration, and consequently the more extreme the reaction. Furthermore, when jurors perceive a defendant as simply not caring about the violation, there is greater anger and a subsequent desire to "punish" the defendant by leveling a large damage award (even absent a punitive damage claim).

Some might argue that this is essentially the Reptile theory, but there are critical distinctions. First, the fear appeal of Reptile makes the victim and his or her injury the central focus. It asks jurors to place themselves in the role of the victim and imagine the injury happening to them. Conversely, the "Anger-Frustration Hypothesis" places the defendant and its behavior at the center of the discussion. Sympathy for the victim does not drive large damage awards; anger at the defendant does.

Second, Reptile sets a lofty standard for plaintiffs, requiring them to find a way to generate perceptions of such a great and immediate threat amongst jurors that the survivalist parts of their brains kick in and take over. Conversely, the "Anger-Frustration Hypothesis" only requires a plaintiff to show the defendant's violations of rules or values in stark contrast to jurors' views of how people should act.

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