Defensive attribution has been widely researched by social psychologists since the 1960s. Defensive attribution is the bias, present in most people, that leads to blaming a victim of misfortune for his/her role in the misfortune. Among the first research studies on the topic of defensive attribution was a study that found accident victims were perceived as more responsible for the accident when their injuries were more serious than when they were minimal. Experimenters presented the facts of an accident to research participants, varying only whether the victim’s injuries were minor or serious. Although, at the time, the results were surprising to the researchers, the concept of defensive attribution is now a well known phenomenon in the field of social psychology. It is not well known, however, among members of the general public, including attorneys. When I am working with plaintiffs’ attorneys, particularly on personal injury cases, they are often stunned at what they believe is callousness and ill will on the part of the mock jurors and other research participants. The attorneys ask me why, given the serious and permanent nature of their client’s injuries, certain people are reluctant to compensate them by awarding substantial sums of money. I explain that, due to many people’s biased decision making, including their defensive attribution, they blame the victim of misfortune as a self protection device, fearing that the horrible accident might happen to them, then re-aligning their thoughts to conclude it could never happen to them because it was something about the plaintiff that caused the accident to happen. For most people, blaming the victim is a sure way to protect their image as a careful person who would never, ever, get hurt and further, the only reason the plaintiff got hurt was that he/she had bad luck, was doomed by fate, or otherwise partly “had it coming” when the defendant’s actions led to the accident and injuries. Taken to its logical conclusion, defensive attribution protects us from believing we will suffer the same fate as the injured person if we convince ourselves to believe accidents happen only to those who are negligent. Understanding the concept of defensive attribution is critical for anyone who interprets jury decisions as well as many other aspects of human decision making.
Though I have taken graduate psychology courses, I have certainly benefited from the litigation specific tutoring and examples Melissa has provided me, and our clients, over many years. I recall one of the first times defensive attribution raised its ugly head and had to be explained to a client on the fly. Our client, a plaintiff’s lawyer, was excited by having a prospective juror who was, in many ways, just like his client, the plaintiff. Melissa was helping him with jury selection and within the constraints of that environment, struggled to disabuse him of the notion that accepting that particular juror would be good for the case. The problem, which he came to understand, was that if the woman who was being considered for the jury was like the woman plaintiff in many dimensions, it would be likely that the juror would not accept that what happened to the plaintiff was the defendant’s fault and would likely find ways to saddle the plaintiff with fault instead of accepting that it could have been anyone, or worse, herself (the juror) who fell victim to the cause of the accident. The concept of “there but for the grace of God go I” is part of this equation. Without getting into the original or religious meaning of this phrase, the point is, if a person (juror) is very similar to the other person (injured plaintiff), that juror will likely be inclined to find ways to blame the plaintiff as a personal defense against thinking the negative outcome could have happened to him/her. It had to be something about the plaintiff that caused her or his injury because to think it could have happened personally is too horrible to consider. Again, human psychology is not as straightforward as many people might think. The counter intuitive notion that faced the aforementioned attorney took some time to grasp, but saved him from likely disaster. As it was, without the plaintiff’s “twin” as a juror, he and his client did quite well.
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