It's a pretty odd scenario, and one we don't face every day:
“An out of control trolley is speeding towards a group of five people. You are standing on a footbridge next to a large man. If you push him off the bridge onto the track below, this will stop the trolley. He will die, but the five others will be saved. What do you do?”
As odd as it is, this is a familiar scenario in moral foundations research, called the "trolley problem." It is useful to those who research popular views of morality because it neatly separates consequential and deontological reasoners. The consequential reasoners are those who would prefer the familiar cost-benefit or utilitarian calculation: Better to save more lives, so go ahead and give that large man a push. The deontological reasoners, on the other hand, will hold that the rightness or wrongness of an action depends on whether it adheres to a good principle, and not to its individual consequences: Because it's never right to take an innocent life, the large man stays on the bridge, and unfortunately the five in the trolley's path die. The dilemma not only echoes the long-simmering debate between Immanuel Kant and J.S. Mill, it also provides a window into a given individual's moral foundations, and how you answer will influence how you're perceived.
A current article in the Journal of Experimental Psychology (Everett, Pizarro & Crockett, 2016) compared the amount of trust received by individuals who made either the principle-based decision or the utilitarian decision in the trolley story and other similar scenarios. Over the course of five experiments involving more than 2,400 participants, the team from Oxford and Cornell found that "agents who express deontological moral judgments are more valued as social partners." In other words, if you decline to push the large man off the bridge, you win more trust. As one of the authors, Dr. Molly Crocket, explained, "When asked to entrust another person with a sum of money, participants handed over more money, and were more confident of getting it back, when dealing with someone who refused to sacrifice one to save many, versus with someone who chose to maximize the overall number of lives saved." Moral foundations, as well as the practicalities of winning trust, have relevance in litigation as well. How should individuals and companies represent their moral compass when at trial? To the extent that jurors will want to discover and assess your principles when assessing credibility, what are they likely to find? This post takes a look at the study and also shares a few thoughts on discovering and communicating your principles in a trial context.
Naturally, all people are going to use some mixture of rule-based and consequentialist modes of reasoning, but which we prefer will vary by person and by situation. The research shows, for example, that quick intuitive judgement tends to be rule-based, while slower and more deliberate thinking tends to account for consequences. That difference has led some to label the deontic reactions as "emotional" or "irrational." But lead author Dr. Jim Everett in Psyblog suggests that it arises instead from a different need: social popularity. "If people who stick to moral absolutes are preferred as social partners," he explains, "expressing this view will reap benefits for oneself...and this makes sense -- we shudder at the thought of a friend or partner doing a cost/benefit analysis of whether you should be sacrificed for the greater good." That means that we tend to like those who adopt principle-based thinking, provided the principles in question resonate with our own. Instead of being a weakness or a mistake, then, deontological thinking is a smart social adaptation. As the research study concludes, principle-based judgments are "signals of trustworthiness to the extent that these judgments indicate respect for persons and commitment to social cooperation," and all things being equal, "an agent who makes characteristically deontological judgments will be trusted more overall by a given population."
Applying this to legal communication, it suggests that parties would do well to communicate their moral absolutes. That means finding, grounding, and communicating your principles.
Find Your Principles
What principle guides your work, your decisions, and your actions? Your answer will matter in discovery and in trial. For a doctor defending a professional liability case, that might translate into the "pattern and practice" guiding diagnosis and treatment. For a company defending a products or personal injury case, it might translate into a mission statement or a safety commitment. In either case, it will make sense to devote some careful thought to how to get beyond the generalities in order to get down to the concrete principles that guide your actions.
Ground Your Principles
The second question to ask is why that's the principle: Why does the doctor follow this particular pattern and practice, and why is the company committed to those principles and protocols? The trick is to get beyond the reason, "Because it is the right thing to do." The rationale should be one that makes sense to jurors. Although the research shows that we prefer principle-based judgments, those principles themselves can be based on consequences. For example, we don't knowingly sacrifice innocent life, like the life of the large fellow on the bridge, because most of the time, following that principle leads to more good than bad. For a company in particular, the rationale for the company's actions are likely to be more credible if they are tied to profit, as in "We put safety first, at least in part because that's what is good for business."
Communicate Your Principles
The last step is to make sure your jury or other legal fact finders know your moral absolutes. An understanding of the principles that ground your motives and beliefs goes to character, and can generate greater trust, just as it did in the study. So the time to start talking about those principles and absolutes comes in discovery when answering those "why" questions in deposition. For the company representative being asked about testing processes, it means answering not just by referring to vague statements of principle, but to specific protocols and the reasons behind them. For a doctor answering a hypothetical, it means answering by relying on a detailed explanation of your common pattern and practice in similar circumstances.