Vol. 11 No. 1 (January 2001) pp. 51-53.

LEGAL BLAME: HOW JURORS THINK AND TALK ABOUT ACCIDENTS by Neal Feigenson. Washington, D.C.: American Psychological Association, 2000. 301 pp. Cloth. ISBN 1-55798-677-0.

Reviewed by Edie Greene, Department of Psychology, University of Colorado (Colorado Springs).

In LEGAL BLAME Neal Feigenson, Professor of Law at Quinnipiac College School of Law in Connecticut succinctly sets forth his objective.

"This is a book about how people decide who is responsible when a person is accidentally injured or killed. It is about the habits of thought and feeling that laypeople - not judges or other legal experts - use to determine who, if anyone, is to blame and how much compensation the injured person deserves. It is also about the words laypeople use to talk about blame and what those words reveal about the ways those people think and feel. In short, it is a book about how people try to do justice in the wake of accidents" (p. 3).

Early in his extraordinarily well-written and comprehensive book, Feigenson points out a paradox that other scholars of the jury have also recognized: although jurors and juries do not fare well when tested on their comprehension and application of legal rules, they nevertheless tend to reach decisions that largely agree with those of legal experts. (Some time ago, my colleagues and I described this process as divining "order out of chaos.") Feigenson spends much of his book describing the ways that laypeople, who seem not to know much about the relevant legal rules, nevertheless attribute responsibility for accidents in ways that comport, often enough, with those of the experts.

A very important message of this book is that jurors in accident cases strive for TOTAL JUSTICE, and that the quest sometimes takes them outside of the bounds of traditional legal rules and procedures. Total justice takes many forms. For example, jurors may attempt to give each party what it deserves, to balance the accounts between the litigants, even though the law may not request that of them. Jurors may strive to use all information they deem relevant to their decision (and perhaps, even construct narratives to fill in missing details), even though the law may desire to keep some information from them. Jurors may deliver holistic or global responsibility judgments (for example, by using injury-related evidence to determine fault and causation despite the fact that legally, the former is not related to the latter), even though the law expects them to consider discrete elements of these cases separately. Finally, total justice means that jurors want to feel right about their decisions, even though the law warns them not to be swayed by emotion, passion, or prejudice. According to Feigenson, this urge to do total justice means that jury decisions are often "right for the wrong reasons." They are consistent with the law but not in strict compliance with legal rules. It means,

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further, that when a jury's decision diverts from the opinion of experts, it is not because that jury was incompetent or biased, but rather, because jurors used their common sense, their lay sense about what is fair regarding accidents, responsibility, and compensation.

This is an exceedingly well-crafted book. Its first half presents a framework for analyzing decisions about accidents. It includes discussion of legal rules and rationales pertaining to accidents (thorough, yet accessible to those without legal training) and reviews of the psychological literature on cognitive and social judgment processes and on the role of emotions in thinking and decision-making. These latter chapters are surprisingly sophisticated, given that the author is a professor of law and that few legally trained professionals venture across campus (so to speak) to embrace the theories and methodologies of their social science colleagues. Feigenson's recent empirical work with psychologists Peter Salovey and Jaihyun Park at Yale University has served him well in speaking authoritatively to social scientists. Indeed, I have been busy studying jury decision making for nearly 20 years, yet I found much to ponder in these chapters.

The second half of the book presents various case studies of lay decisions regarding accidents. I found some aspects of these cases to be completely riveting, but other aspects of this approach disappointed me.

First, let me state my disappointment. The book jacket tells us that Professor Feigenson spent some time as director of the Lawyering Program at New York University Law School. Although I never participated in such a program, I suspect that it informs law students about how to become skillful litigators, among other things. More specifically, I suspect that it allows them to hone their skills at conducting voir dire, making opening statements and closing arguments, and cross-examining witnesses. I present this resume item because I believe that it informed Feigenson's decision to include two lengthy chapters on lawyers' arguments to juries in accident cases - chapters that I found to be less useful than others in the book.

Feigenson's contention is that the words lawyers use to persuade jurors can shed considerable light on how the jurors themselves come to think about the case. Although he tempers these remarks with words like "tentative inferences" and "caution" and with the statement that "undoubtedly, the presumption that what attorneys say is strongly connected to how jurors think is problematic," still Feigenson presumes that what the lawyers say to jurors will be strongly related to what the jurors think. This assumption is true only to the extent that lawyers are excellent mind readers and/or that jurors mindlessly adhere to lawyers' rhetoric. I suspect that neither of those conditions is generally true. As a result, this reader tended to discount these chapters as proof that laypeople try to make decisions in accident cases by thinking in terms of total justice.

Much more useful, I believe, were chapters that presented information gleaned from the jurors themselves that showed us directly, without the intervening issue of lawyers' arguments, how jurors thought of and spoke about accident cases. Not only do we "hear if from the horse's mouth," but also we get this information in a variety of ways.

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In one such chapter, Feigenson skillfully analyzes post-verdict interviews with jurors who decided a fascinating case related to McDonald's responsibility in allowing a teen-aged employee to work until he was sleep- deprived and to then drive home. He fell asleep at the wheel and crashed into the plaintiff's pickup truck, seriously injuring the plaintiff and killing himself. The jurors, by a vote of 9-3, found McDonald's responsible for the plaintiff's injuries and awarded him $400,000 in damages. Why? Primarily because jurors identified, with the help of the plaintiff's lawyer, relevant norms of behavior (e.g., that the employee was a child and McDonald's like a parent who should know better, that corporations should not get away with exploiting low-paid employees) and then inferring blame from perceived violations of these norms. This conception made sense to this reader because Feigenson had so carefully elucidated the tenets of norm theory and their relationship to responsibility judgments earlier in the book.

In another chapter, Feigenson adroitly describes three sets of mock jury deliberations from a medical malpractice case that involved a delayed diagnosis of breast cancer. These chapters present very detailed, thoughtful analyses of the path that jurors follow between hearing evidence in the courtroom and reaching common sense based decisions in the jury room. They show that the transformation is a complicated one: a mixture of partially accurate prior beliefs and expectations, some sound reasoning, a dose of inferential biases, and a portion of conceptual confusion. However, the end result, in each of these instances, is a verdict that falls within a range deemed acceptable by the legal system: verdicts that are "right enough, even if not for the right reasons" (p. 210).

This book is unique in many ways. Unlike other books on the jury system that tend to cast the jury in absolute terms (either as an antiquated relic that is too easily swayed by the biases and predilections of its members or as a venerable institution that could stand some house-keeping in the form of procedural modifications), this volume speaks with more subtlety, depth, and eloquence about the multidimensional nature of jurors' decisions regarding fault and responsibility. Its equal focus on social science theories AND the law's tenets, as well as the sophisticated way that it merges the two is also quite remarkable. Reading it would enrich the minds of legal scholars, practicing lawyers, social scientists and observers curious about the ways of the jury.


Copyright 2001 by the author, Edie Greene.