August 9, 2022

Volume XII, Number 221

Advertisement
Advertisement

August 08, 2022

Subscribe to Latest Legal News and Analysis
Advertisement

Corporations as a Person - Address the Corporate Mind

The idea of the corporate personhood is typically thought of as a "legal fiction" (Schane, 1987). That is, we treat a nonperson as a person so that it makes sense legally to talk about corporate entities doing what people would otherwise do: buying and selling, entering contracts, suing and being sued, etcetera. But does that mode of thinking just reflect a legalistic shortcut, or does it actually capture the way we think about corporations and other "group agents" like governments or private organizations? Yale cognitive science and philosophy professor, Joshua Knobe, sought to find out, and the results are detailed in a recent New York Times "Opinionator" piece.

Noting the ambiguity of legal claims focused on a corporation's "knowledge" or "intent," or "reckless disregard," he and his colleagues (Jenkins et al., 2014) wanted to see if there were any differences in the ways we think of actions by people and by corporations. Armed with an fMRI scanner to read the patterns of brain-region activation, they had the research participants read sentences about individuals and about corporations. These included sentences like, "George thought it really might be possible to make a killing in asparagus sales" versus "United Food Corp. thought that stocks would continue to go up." What the team found is activation in what is called the "Theory of Mind Network," which includes the medial prefrontal cortex (MPFC), the right temporoparietal junction (RTPJ), and the precuneus (PC). This "Theory of Mind" describes the ability "to consider and keep track of what other people feel, know, and believe." So it is no surprise that this region is activated when talking about George and his asparagus. But what is more surprising is that the scientists found no differences when participants were thinking about the mental states of corporations versus the mental states of individuals. "The pattern of activation for these sentences was completely indistinguishable from the one for sentences about individual human beings," they concluded. That provides support for the idea that people make sense of corporations by applying the same "theories of mind" that we apply to individuals. This post discusses the implications of this for your litigation message. 

If people think about the "corporate mind" as more than just a shorthand for the minds of individuals within the corporation, then that has implications for how we talk about companies in trial. Here are three personal traits that can be transposed onto the corporation. 

Corporate Knowlege

In a follow-up to the fMRI study, the researchers asked more specifically about corporate mental state. "People were often happy to say," Knobe writes, "that the organization itself had a certain mental state even when they thought that there wasn’t a single human being within the organization who had that state." For example, they were comfortable saying that NASA "knows" how to build a space shuttle despite believing that no one person within that agency knows all of the steps. Collective knowledge, in this case, transcends individual knowledge. That means that when litigating for or against corporations, the question of what the company knew or should have known probably transcends the 30(b)6 witness, and is more of a collective impression created by all of the witnesses testifying on behalf of the company. For a plaintiff making a point about "what the company knew," for example, I could imaging a demonstrative chart, not unlike the picture at the head of this post, showing how a number of different pieces of individual knowledge contribute to a more unified corporate knowledge. 

Corporate Intent

When applied to corporations, the idea of intent is even more vague than knowledge. After all, it is easy to see that knowledge might be common enough within a company to call it "corporate knowledge," but "corporate intent" might at first seem like one step too far in personifying the company. The social science research, however, shows that even for corporations, intent matters. In earlier research  Joshua Knobe (2010) showed that not only do a corporation's intentions matter, but there is a bias to how they matter. All things being equal, a corporation's bad acts are likely to be perceived as intentional, while its good acts are more likely to be viewed as accidental. That may reflect an underlying anti-corporate bias, leading people to expect the worst when it comes to intentions. Still, it is a good idea for both opponents and defenders of corporate parties in litigation to look for the same clues that would point toward an individual's intent and to map those onto the corporation. Those clues might include expressed goals of values, as well as the length and type of deliberations that occurred before a decision. 

Corporate Character

Previously I have written about character, a broader envelope than credibility that turns out to play an often decisive role in moral judgment. It can be a rather vague concept, particularly when extended beyond the individual. But in some ways, big businesses already embrace it when talking about their company's "culture" that infuses the organization and is adopted by individuals. So when litigating for or against a company, it helps to consider the role of that culture in setting the stage for the actions at issue in the case, in increasing or decreasing the perceived likelihood of the company acting in a certain way, or in simply letting the jurors know what kind of entity they are being asked to vote for or against. In looking for evidence of a culture, remember to get beyond the chosen or idealized culture the company expresses (its vision, values, or motto) in order to see the culture that it actually lives on a day-to-day basis. Testimony, as well as representative anecdotes from witnesses at all levels of the hierarchy, will help to fill in this picture. 

The research shows, that in our minds, we are already prone to thinking about corporations as a person. "Even if people believe on some level that corporations do not have minds," Knobe writes, "they seem to be using the same sort of psychological process for thinking about corporations that they use for thinking about the minds of human beings." So this finding underscored the advice to take steps to personalize the company and not allow it to remain a faceless entity on paper. 

Copyright Holland & Hart LLP 1995-2022.National Law Review, Volume V, Number 176
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Ken Broda-Bahm, Ph.D., Holland Hart, Rhetoric lawyer, Legal Persuasion Attorney
Senior Litigation Consultant

Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 16 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.

303.295.8294
Advertisement
Advertisement
Advertisement