Psychological perspectives on juror reactions to the September 11 events; terror management theory would predict more punitive jury reactions, but the more traditional social-cognition approach may still predominate.

• Author: Rowland, C.K.

WHAT effect are the tragic events of September 11 likely to have on juries, especially juries in personal injury cases? There are two responses from a juror psychology perspective.

First is a re-examination of a relatively obscure theory from social psychology known as "terror management theory" (TMT). Although TMT remains a relatively obscure and controversial theory among social psychologists, its immediacy and potential applicability to the post-September 11 social conscience and, therefore, to jurors' aggregate punitive damage decisions will be apparent.

Second is to take a step back and introduce a more conventional, albeit less proximate, social-cognition approach to anticipating the implications of the September 11 events. This approach, which anticipates a more measured, idiosyncratic response pattern, emphasizes the impact on individual information processing.

Then one must compare and contrast the implications of each approach and preview a plan to test both approaches empirically as data become available.

TERROR MANAGEMENT THEORY

The terror being managed in TMT is the universal fear of death. TMT begins with the axiomatic assumption that human beings expend a great deal of subconscious psychological energy looking for ways to manage and deny the terror inherent in their awareness of individual mortality, and that in order to "manage" and unconsciously deny that terror, they attach themselves psychologically to institutions, especially state institutions, and symbols that transcend their individual life spans. For proponents of TMT, this assumption helps explain a wide variety of human behaviors, ranging from religious attachments to patriotism, especially self-sacrifice in battle.

Given this assumption, understanding how people respond when the integrity--indeed, the survival--of these institutions is threatened becomes fundamental to understanding and predicting human behavior. Not surprisingly, TMT predicts that when humans are reminded of their own mortality in ways that shatter even temporarily their institution-based illusion of immortality, they become diffusely angry and much more punitive toward wrongdoers than they were before the reminder. Like anger, punitiveness is diffuse; it is aimed, not just at those directly responsible for disillusionment but also at anyone whose behavior is deemed worthy of punishment, whether they be grossly negligent corporations or plaintiff attorneys who are perceived as unfairly attacking important institutions.

TMT has not been tested extensively. Academic jury research, however, has found that mock jurors who have been reminded of their own mortality in opening statements do indeed give harsher sentences in criminal cases than do their counterparts who have not been exposed to such reminders. Of course, by definition, defendants in criminal cases have threatened institutional norms. In the current climate, TMT would predict a distinct increase in the diffuse impulse to punish.

Although neither the theory nor empirical research speaks directly to the question of whether this diffuse impulse to punish will extend to civil defendants, TMT would predict that for the foreseeable future most jurors in personal injury cases, especially those who do not rely on attachments to corporate institutions to manage their terror, will be significantly more prone to punish defendants who they perceive as behaving with wanton disregard for safety than they would have been before September 11.

Keeping in mind that it is only a theory-based prediction, my company plans to test the hypothesized increase in punitive propensities by comparing award trends before and after September 11, but meaningful data will not be available until the end of the year. In the meanwhile, counsel should give consideration to a more traditional social-psychological perspective that emphasizes the role of event schemata and judgment heuristics, while anticipating a more idiosyncratic response pattern.

TRADITIONAL PSYCHOLOGICAL EXPLANATIONS

From the perspective of more conventional social psychological...