Consider this scenario: two swimmers are drowning, and the even greater problem is that they are so far apart that the single lifeguard cannot rescue both. Instead the lifeguard must choose, because trying to save both could end in saving neither. Logically, we would say that in this scenario, the lifeguard cannot reasonably owe an obligation to both swimmers. We would say that based on the philosophers' understanding that "ought implies can," the lifeguard shouldn't be saddled with obligations that can't be met. But emotionally, this isn't the way it works. Show research subjects that scenario and a clear majority of them will still say that the lifeguard owes an obligation to both swimmers. According to research discussed in a recent article in ScienceDailypeople routinely attribute moral obligations to those who cannot fulfill them. In a series of eight experiments, researchers at the University of Waterloo (Buckwalter & Turri, 2015) tested a number of scenarios, including this lifeguard's dilemma, and found that in a variety of situations, one's obligations are viewed as paradoxically independent of one's ability to fulfill them. "Together these results demonstrate that common sense morality rejects the 'ought implies can' principle for moral requirements," the authors conclude, "judgments about moral obligation are made independently of considerations about ability."

Why should popular perceptions of moral obligation matter to litigators? Because every case is a kind of morality play where jurors decide whether each party did what they were obligated to do. Given that attorneys are trained to be logical and analytical about those obligations, they may not appreciate the extent to which "duty" becomes an emotional and not just a logical concept. If, as the authors say, "moral obligations persist despite the inability to fulfill them," then that is a fact that ought to be appreciated by trial lawyers. The article, for example, considers how these results bear on some criminal defenses, such as mental incapacity, explaining a jury's reluctance to believe that someone who has a duty to tell right from wrong could nonetheless prove to be incapable of doing so. In many other trial contexts, one side or the other might be pointing to a hard limit on what is possible. A products liability defendant, for example, will argue that the lawnmower cannot be made completely safe while still cutting the grass. I'll argue in this post, though, that civil litigators shouldn't put too much faith in that distinction. Logically, the juror might understand your inability, but emotionally, the moral weight of obligation is still on you. 

The Defendant's Obligations

Civil defendants generally find themselves as civil defendants because someone has accused them of failing to meet their obligations. Products companies have an obligation to minimize the harms of their products, patent defendants have an obligation to avoid infringement, medical malpractice defendants have an obligation to follow the standard of care, and contract defendants have an obligation to follow the terms of the deal. In all of those situations, defendants have an incentive to narrow the parameters of their own agency, taking comfort in Immanuel Kant's dictum that "Duty commands nothing but what we can do." 

The products manufacturers, for example, know they can make a product that is as safe as reasonably possible, but they also know that they cannot control consumer misuse of the product. You can add shields and warnings to the lawnmower, but that cannot prevent the foolhardy user from reaching under the mower while it is running. That impossibility is going to be the end of the story for some jurors: They won't blame the company for what the company cannot control. But it won't be the end of the story for other jurors. They will expect the company to anticipate the full spectrum of misuse and to minimize it to the point that a user really has to be trying to hurt themselves in order to be injured by the product.  

So the moral for the civil defendant is to never take comfort in the limits of one's abilities. Instead, treat your obligations as ideals to be strived toward, not necessarily realities to be achieved. Focusing on what is beyond your control may be a logical defense, but it won't be an emotionally powerful strategy. Focus instead on the positive story of everything you did in order to control what was within your power.

The Plaintiff's Obligations

Obligations will always cut both ways. In cases where there is no contributory negligence alleged, plaintiffs might be tempted to believe that they had no obligations at all. That, however, is a mistake: Jurors will typically look first to what each party did in order to protect themselves. For some jurors, that personal responsibility will at least initially loom much larger than any obligations on the defendant's part. Because jurors are prone to identify more with an individual plaintiff than with a defendant corporation, they are also more likely to scrutinize that individual, asking "What would I have done in that person's shoes?" The result can be a motivated belief among jurors that they would have avoided that injury or harm, and therefore, the plaintiff is at fault for failing to take reasonable care. That feeling can undercut a claim for liability whether there is a line for it on the verdict form or not. 

The belief that self-protection trumps matters not just in personal injury cases, but in any situation in which the plaintiff could have avoided or minimized whatever harm they experienced. For that reason, plaintiffs are well-advised to go beyond just proving the elements of their claim, and also tell a story about everything they did in order to reasonably protect themselves. Ultimately, they need to show they met their own obligation toward self-protection. 

Based on the studies' findings, that can be especially tricky in cases claiming psychological damages. Part of what the researchers focused on is the tendency for people to be much more skeptical about psychological inabilities than physical inabilities. "People are less willing to believe that an agent is unable to drive a car due to clinical depression than due to physical injury," Professor Turri explained in ScienceDaily. "Moreover, people are more willing to blame agents suffering from psychological inabilities. This asymmetry may reflect the assumption that people can just get over mental inabilities, such as clinical depression, in ways that they cannot just get over, say, a broken leg." Mental limits are considered a personal weakness or a lack of self-control, more than they are seen as an actual limit on ability. This carries implications for criminal defendants seeking a mental incapacity defense, but it also matters in civil cases where that diminished capacity plays a role in damages or liability. Expect jurors to be skeptical, and plan for them to impose obligations on your clients that exceed their capabilities. In these cases as well, your story needs to center on effort -- on attempts to do as much as possible under the circumstances -- even if that effort is unsuccessful. 

In setting aside the notion of "ought implies can," the study authors suggest that instead it should be replaced with "blame implies can." In other words, if fact finders are motivated to find fault in your client's behavior or in the outcome, they are motivated to find a way to believe that your client could have avoided it. Obligation creates control.