Trials and depositions are serious matters. The serious and sometimes grim atmosphere may be seen in the give and take of presentation of evidence, the questioning of witnesses, and the (sometimes seemingly endless) interruptions of narrative flow during trial due to attorney objections and subsequent rulings from the bench. The substantive and probative proceedings—as well as the dour process of discrediting witness testimony—can be sources of psychological distress to participant witnesses who are on the receiving end of this process.
Depending on the outcome, distress and occasionally anguish potentially can be experienced by almost all of the actors in the dramas of courtroom proceedings. For example, attorneys may feel as if they have failed, and some lawyers whose cases have not gone well may feel an element of professional diminution, at least for a brief period. Litigants are less frequent visitors to the courtroom and, as a consequence, may experience more severe levels of mental anguish. For example, defendants in major criminal trials often feel a crushing despair when convicted and sentenced. Likewise, plaintiffs in civil cases frequently bring feelings of indignation and suffering into the courtroom, only to have their discomfort intensified by adverse outcomes. Moreover, the level of investment litigants feel toward their cases may substantially affect the amount of grief they experience in a negative outcome.
These emotional events are seen in both direct observations and in discussion with the parties. A substantial literature exists that has identified these adverse experiences for many of the actors in court. For instance, Golann (2004) noted that civil litigants often experience strong feelings of loss when the case enters the settlement phase, not dissimilar to the feelings a person experiences when a close relative dies. Research also has examined how actors in court proceedings, such as prosecutors and victims, are continually managing their intense and negative emotions in court (Goodrum & Stafford, 2003; Konradi, 1999). In fact, Margulies & Luchow (1992) argued that the very nature of our adversary system can have a detrimental effect on litigants in divorce proceedings who might ordinarily have successfully dealt with the challenges posed by divorce. Litigants’ adverse experiences are so well-known, some have suggested creating new diagnoses (e.g., “litigation response syndrome,” “forensic stress disorder”) to reflect this reality (Cohen & Vesper, 2001; Lees-Haley, 1988).
So far, so good, or to put it perhaps more accurately, so far, so bad. As noted above, discouragement is normative for many people who lose any contested event at one level or another. Furthermore, these experiences are often visible and obvious in the courtroom: defendants wracked with tears; signs of profound sadness; persons who seem to shrink into a psychological shell, feeling battered, and seeing plans, futures, and hopes cast away with an adverse judgment.
Yet in the courtroom there also is an emotional mirror image of the discouragement, despair, and anguish of the convicted, the sentenced, and the other apparent losers in the process: pleasure. This mirror image may be seen in participants involved in the legal process who win. Sometimes winning takes the form of successfully representing a client. Sometimes it is exoneration. Other times, winning takes the form of succeeding in the modest battles that make up exchanges in court: winning in presenting an objection or in finding a fallacy in a witness’s statement. These successes and victories typically, but not always, do not have the visible intensity of the loser’s despair, but they are present nevertheless. These victories commonly are a source of pleasure at the expense of an opponent’s or antagonist’s pain.
In this paper, we explore the nature of such courtroom pleasures. The phenomenon in general has a name: schadenfreude, and we begin by considering the concept. We start with an overview of how the construct has been defined and operationalized, provide examples of schadenfreude in everyday life, and discuss how it manifests in the courtroom. While schadenfreude might be a natural and understandable reaction to the contentious and possibly emotional environment of a courtroom, we also address whether it can lead to harmful effects, and end by discussing ways to examine this phenomenon empirically.
Definition and Origin of Schadenfreude
The Oxford English Dictionary defines schadenfreude as the malicious enjoyment of the misfortune of others. It is a German term that literally translates as “harm” (schaden) and “pleasure or joy” (freude). A related English expression is “Roman Holiday,” the origin of which comes from Lord Byron’s poem Childe Harold’s Pilgrimage. In this poem the Ancient Roman gladiator expects to be brutally slaughtered for the entertainment of the spectators in an arena. Byron wrote, “Here, where the Roman million’s blame or praise, Was death or life, the playthings of a crowd” (Byron, 1812-1816, Canto IV, CXLII). The audience is experiencing joy from his misfortune.
While one might be tempted to equate schadenfreude with sadism, we see a clear distinction between these two constructs. Sadism is the joy one experiences when he or she causes others’ pain or suffering. In contrast, schadenfreude is the joy of watching others’ pain or suffering. The pain experienced by others is not caused by the person who enjoys schadenfreude.
Deservingness and Other Justifications
There are disagreements among those who study this construct regarding the definition of schadenfreude and when it is experienced. Some sources describe the pain being felt by the other person as being “deserved” while others leave this key word out. In the first instance, one must take into account the reasons why a person feels schadenfreude. Feather and colleagues (2013) considered this deservingness aspect of schadenfreude as well as in-group and out-group considerations.
In the Feather, Wenzel, and McKee (2013) study, different scenarios of a college student’s failure to gain acceptance into an honors psychology program were shown to university participants. The scenarios were manipulated such that in a high deserving condition, the rejected student in the scenario put in a lot of effort to achieve high grades and had earlier won a prestigious internship. In the low deserving condition, the rejected student in the scenario did not put much effort into obtaining high grades and had secured an internship coordinated by the student’s father.
After reading about the student’s failure to gain entry into the honors program, the researchers elicited participants’ feelings of envy, inferiority, resentment, and perceived responsibility. The perceived deservingness of the student in the scenario also was assessed. Schadenfreude was measured by asking participants how happy, satisfied, and pleased they felt that the student was not accepted into the honors program. Feather et al. (2013) found that schadenfreude toward the less deserving student was stronger (and sympathy was less strong) because the student did not work as hard to obtain admission into the honors program. In other words, the more the rejection appeared to be deserved, the more schadenfreude was evoked.
These results may not be surprising, given the well-established principle that humans are inclined to link personal attributes to consequences. Lerner (1980) documented this “just world hypothesis” in a series of experiments, which found that people often are eager to conclude that someone else deserves a certain result. In lay terms, you reap what you sow. Applying this to the schadenfreude phenomenon, van Dijk and colleagues (2008) suggested individuals with a high belief in a just world would experience more schadenfreude, and recently Pietraszkiewicz (2013) found empirical support for such a link. In other words, we tend to believe that an undeserving person should fail, and thus we may take pleasure when that does, in fact, occur because it confirms our orderly view of the world.
Envy also seems to contribute to schadenfreude. For instance, van Dijk and colleagues (2006) found that envy and deservingness were predictors of schadenfreude. Because envy is linked with jealousy, the envious person may consider the other person deserving of misfortune and take particular pleasure in watching the other person struggle and fail. Using 249 Dutch university students as research participants, van Dijk and colleagues (2006) reported that schadenfreude was more intense for men than women, and more intense for men learning about the misfortune of male protagonists and for women learning about the misfortune of female protagonists. It has also been reported that schadenfreude is more likely to occur when the misfortune happens to high achievers (the so-called tall poppies) and people who are envied, disliked, or resented (e.g., Cikara & Fiske, 2012). Thus, targets of our envy deserve their pain, and we take pleasure in that.
The role of in-groups and out-groups is another important aspect of schadenfreude, again linked to envy and deservingness. Nietzsche in the 19th century suggested that individuals’ feelings about their own personal inferiorities lead them to the pleasure of schadenfreude when a successful person fails. Recent research has examined and found support for this. For instance, Feather’s 2008 study considered the different views of in-groups and out-groups in situations where schadenfreude may come into play. Participants were presented with one of 12 scenarios describing a low, average, or high-performing university student who expended either high or low effort, and they were asked to identify with this person and rate how they would feel if they were this person. This manipulation was designed to create an in-group or out-group status for the participant. Participants then rated their feelings toward a high achiever before and after reading scenarios in which this high achiever suffered a failure during final exams. Feather (2008) found that more schadenfreude was reported when an out-group member failed, and more sympathy and anger was reported when an in-group member failed.
Schadenfreude in Everyday Life
Regardless of the specific mechanisms driving schadenfreude, an examination of our everyday life reveals it is alive and well (e.g., Smith, 2013). An obvious example comes from sporting events, especially between rival teams. When a rivalry is intense, fans of the other team take enjoyment from watching their rival’s defeat, even when their own team is not playing or inflicting the defeat. Fans simply take delight in the failure of the other team.
For instance, the authors are all affiliated with The University of Alabama, most of whose students are invested in its football successes as well as in losses by the cross-state rival Auburn University. When Auburn’s football team loses, it is often an occasion for exuberant celebration. The misery of Auburn’s fans is a source of pleasure for Alabama fans regardless of who Auburn played. As in almost all sporting events, football games are zero sum events in which there is only one winner, and in the teeth-baring competitive atmosphere between the two schools, a loss by the opposing school, even when your school is not playing, is a source of enjoyment. Local residents point out that they always cheer for two teams on every college football weekend: Alabama and whomever Auburn is playing. The same thinking undoubtedly is true for Auburn fans. The exquisite joy in the losses of competing teams is a sports dimension of schadenfreude.
Other examples abound in frivolous (e.g., celebrities) and non-frivolous (e.g., political candidates) contexts. Jaffe (2005) discussed the phenomenon of “humilitainment,” first proposed by media scholars Brad Waite and Sara Booker, wherein television viewers take pleasure in the joy of watching others humiliate themselves on reality TV programs. He opined that viewers’ pleasure is tied into the concept of social comparison, i.e., we feel superior when we see others publicly fail. One sees this in the joy that the public sometimes takes in a celebrity’s misfortune (Cross & Littler, 2010). Likewise, political campaigns are no strangers to the concept of schadenfreude (Combs, Powell, Schurtz, & Smith, 2009).
While the existence of schadenfreude is clear enough, the measurement of schadenfreude is fraught with difficulty. There are no standardized instruments for assessing the construct. Typically, researchers studying schadenfreude have exposed participants to study-specific vignettes and asked participants to rate different feelings and reactions on Likert scales. For instance, Feather and Sherman (2002) inquired about how pleased, sorry, angry, happy, annoyed, sympathetic, disappointed, and satisfied participants were after reading about someone’s misfortune.
Due to the element of envy embedded in schadenfreude, the Dispositional Envy Scale often is used in studies of schadenfreude (e.g., Krizan, 2012; Sundie, Ward, Beal, Chin, & Geiger-Oneto, 2009). It is a Likert-type scale that asks participants to rate their agreement or disagreement on eight statements dealing with envy. However, most studies develop and employ their own measures. This diversity of measures means that various studies may be operationally defining or measuring the construct differently.
In addition, most measures of schadenfreude have been based on self-report questionnaires. This is problematic, since expressing feelings of schadenfreude may be constrained by social desirability effects (Cikara & Fiske, 2012). Accordingly, some researchers have looked toward physiological markers to assess schadenfreude. For instance, Cikara and Fiske (2012) measured schadenfreude as related to high or low status of others and competitiveness by examining participants’ actual smiling behaviors via facial electromyography (EMG) in addition to their self-reports. They presented participants with pictures of individuals along with brief descriptions of an event that happened to the person (e.g., eating a good sandwich, getting splashed with water when a taxi drives by), and self-report ratings and EMG results were then collected. In a second study, participants read newspaper articles about the failures of investment bankers and self-report ratings of their responses were obtained. Cikara and Fiske (2012) found that perceived status and competition infuenced when and which targets are most likely to evoke schadenfreude, partly based on cheek muscle movements that are typically associated with positive affect. That is, someone we might envy is more likely to evoke schadenfreude.
In light of the limitations in measuring schadenfreude, more research is needed to explore what factors contribute to schadenfreude and to explore the best ways of assessing that construct. After all, if something—sadness, happiness, optimism—exists, presumably it does so in some measurable amount. Thus, it is a reasonable task to seek how best to measure it. In addition, schadenfreude potentially harms people who are the recipients of what may take the form of gloating, and therefore providing clear and reliable ways of assessment will be helpful.
Schadenfreude in the Courtroom
We have already alluded to the fact that schadenfreude is not limited to sports, entertainment, or politics. The courtroom is similarly not immune to schadenfreude’s pull, and many players in court may be affected. Yet unlike the fans of athletic competitions noted earlier, trials and courtrooms are occasions and places of decorum and structure, and the manifestation of schadenfreude may be more subtle with open celebration in the losses and associated distress of others confined to a few specific occasions and a few select celebrants. Let us consider the various players in the courtroom and the times and manifestations of schadenfreude.
The simplest and most visible pleasure of another’s distress or despair is by the parties themselves—defendants in criminal cases and individual plaintiffs and defendants in civil cases. The term “individual” is used because when corporations or organizations are the litigants, less celebration is seen. That is, the protection through corporate structure of gains and losses inure such participants from some of the high and lows of individual litigants. Yet for individuals who are acquitted or for whom a civil judgment is found, it is not unusual for exuberant excitement to erupt, both at the positive outcome for them and the negative outcome for the opposing parties. Some people whoop. They shout. They jump up and down. They sometimes glare triumphantly at the opposing side.
With attorneys, the pleasures of winning at the expense of others occur at two distinct levels. First, like litigants, pleasure occurs at verdicts, and the more intense and combative the trial and the more that is at stake, the more likely schadenfreude will be seen in this context. As noted, our special focus is on the interactions that occur in small units. As lawyers aller au feu (enter the battle), they take pleasure when opponents from the bar or on the stand are il avait commotionné.
Judges may have the least visible and most internal experiences of schadenfreude of any active players during trials. Nevertheless, we suggest that it does occur. One possible manifestation of schadenfreude arises when judges bully inept attorneys (much like when attorneys bully expert witnesses). For example, Northwestern University Law Professor Steven Lubet (2001) examined Judge Samuel B. Kent’s bullying tendencies in his article Bullying from the Bench. Lubet claimed Judge Kent used “uniquely colorful terms” to reprimand attorneys in his courtroom (2001, p. 11). He also reported that Judge Kent took particular pleasure in watching inept attorneys suffer in his courtroom. A choice excerpt from one of Judge Kent’s opinions is drawn below from Bradshaw v. Unity Marine Corp. (2001, p. 670):
[T]he Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact–complete with hats, handshakes and cryptic words–to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed.
This example suggests there is an element of deservingness in the occurrence of courtroom schadenfreude. That is, players in court are much more likely to experience schadenfreude toward an attorney who has been inappropriate and caused trouble in the courtroom. It also appears that power and authority may be a cogent aspect of schadenfreude in the courtroom. That is, when a judge or attorney enjoys the misfortune of others, there might be an element of authority at work. The target is not just a member of the out-group, he or she is inferior to the in-group member.
Another example was provided in a recent conversation one of the co-authors had with a judge from Maryland. The judge stated that she does not take any pleasure in giving out lengthy sentences in criminal cases and that it is very hard to look into the guilty party’s eyes while they realize that their life is basically over. However, the judge also acknowledged taking some pleasure in reprimanding attorneys who have stepped out of line or behaved inappropriately in the courtroom. This judge was a prosecutor before she was a judge, and she noted it was more common to experience pleasure as an attorney when the other attorney was reprimanded by a judge.
Attorneys who bullying expert witnesses may be another example of schadenfreude in the courtroom. Brodsky (2004) lists dynamics of attorney bullying in the courtroom that can be present
Power imbalance, with witnesses and attorneys alike perceiving that attorneys have more power.
The bully’s intent to harm, in this case harm to personal and professional credibility and worth.
Subsequent victim distress, in the form of stumbling, tense, or weak behaviors (p. 119).
This distress experienced by the expert may elicit feelings of pleasure or at least satisfaction in the opposing attorney. The attorney likely will be pleased he or she has discredited the witness or an aspect of the witness’s testimony. Still another example of schadenfreude worth considering is expert-on-expert schadenfreude. That is, an expert witness may feel schadenfreude toward a competing expert testifying in the same case. Or, experts may feel schadenfreude when failure befalls an expert who is perceived to be representing the field in a negative way.
In light of these examples, it is possible that deservingness plays a role in the occurrence of schadenfreude in the courtroom, just as it does in other contexts. For example, the level of schadenfreude experienced by attorneys may be directly linked to the quantity or nature of the challenges presented by the opposing side. If the opposing side is filing unduly burdensome discovery requests, asking for multiple hearings on trivial topics, opposing any and all discovery requests made to them, or in general making the attorney’s job more difficult and time consuming, these actions will presumably lead to a higher level of schadenfreude when the opponent fails. We return to the Maryland judge’s comments about reprimanding attorneys who have acted inappropriately—if the judge enjoys punishing them, it is not hard to imagine that the other players in court enjoy watching this reprimand as well.
Does Law School Breed Schadenfreude?
In this paper, one of our main objectives is to discuss the occurrence of schadenfreude in the courtroom. However, one question arises from the above discussion: why might schadenfreude be present (even abundant) in a court setting? With respect to attorneys and judges, is it possible that law schools breed schadenfreude?
Law schools are famous for their intense Socratic method of teaching, which can produce “heightened vulnerability, fragility, anxiety, and depression” (Sheehy & Horan, 2004, p. 42). First year law students often fear ridicule from professors when they do not have the correct answers and thus are embarrassed in front of their peers. Other law students may thoroughly enjoy watching fellow students struggle and face humiliation in the classroom when they answer incorrectly, given the competitive nature of law school. The empirical question arises: does law school encourage schadenfreude? Where else do we see so much pleasure taken from other’s pain in an academic environment? Considering law school’s common use of the Socratic method to terrify students into being prepared for class, it is not far-fetched to hypothesize that schadenfreude is bred into future attorneys at a young age. Therefore, it is not surprising that examples of schadenfreude are abundant in the courtroom.
The Consequences of Courtroom Schadenfreude
Schadenfreude can be harmful to those who are the targets of it. Witnesses who are bullied by attorneys experience anxiety, fear, or depression while the case is proceeding. Likewise, it could affect how they are perceived by the triers of fact. Witness credibility has been found to be the product of four factors: likability, confidence, trustworthiness, and knowledge (Brodsky, Griffin, & Cramer, 2010). Thus, being the target of bullying might diminish an expert’s perceived credibility. For instance, some studies of bullying in children have suggested that the targets of bullying may be perceived as more responsible for the bullying they endured and less likable when bystanders watching the bullying behavior were passive observers (Gini, Pollozi, Borghi, & Franzoni, 2008). If a certain witness is bullied over and over again by an attorney, the jury or judge may take pleasure in watching this bullying and the credibility of the witness will be called into question. This distress could lead to an expert deciding to not take on certain cases, or retire from the expert witness business altogether. Other witnesses who are bullied by attorneys, and attorneys who are bullied by judges, may face similar ill effects.
Systemic harms also may result. Our legal system was designed to provide justice to those who have been wronged, and to determine the truth (as best it can) in a particular matter. Ideally, it should not be about the exertion of power or the exercise of personal vendettas; the legal system should be objective, but schadenfreude can make it personal. From conducting interviews and examining past court records, it is apparent that some judges may abuse their power and possibly experience schadenfreude more (e.g., Lubet, 2001).
The problem of schadenfreude (if one believes it to be a troubling phenomenon) may be particularly relevant in certain types of cases. That is, we hypothesize that the presence, frequency, and intensity of schadenfreude may vary depending on the nature of the legal proceeding. Cases involving a high degree of emotion, such as rape or murder cases, are likely to evoke greater schadenfreude than a drug possession case. Similarly, domestic proceedings involving very personal matters (e.g., child custody, divorce) likely may elicit more intense feelings of schadenfreude for the family members involved. Whether and to what extent this is true (and true for all the parties involved or just certain actors), though, is a question to be addressed in future research.
Much as in everyday life, we believe schadenfreude is present in the courtroom. However, little research exists regarding whether and how courtroom schadenfreude differs from that seen in everyday life, whether certain legal actors (victims, litigants, lawyers) are affected more by schadenfreude, and whether certain cases are more likely to elicit feelings of schadenfreude. Accordingly, we suggest that future research focus on these issues. For example, in a laboratory setting, participants could view videos of court proceedings and rate their perceptions and feelings toward different players as the case progresses and as the success or failure of these players becomes clear. Alternatively, rich information could be gleaned from going directly to the source—surveying attorneys, judges, witnesses, litigants, and possibly jurors themselves regarding their feelings toward the proceeding and its outcome. Analysis of court opinions or trial transcripts also may illuminate the phenomenon.
Additionally, direct observation of court proceedings may yield helpful information. For instance, forms of nonverbal communication could be examined. Nonverbal communication of emotion has been characterized as being composed of very minute, brief, and transient facial expressions. These micro-momentary expressions may, in fact, be the most revealing manifestations of attorney schadenfreude and they have been studied—successfully—in prior jury research. (For example, as part of research on the relation between smiles and credibility in witnesses, Nagle, Brodsky, & Weeter (2014) observed nonverbal, smiling behaviors for 15 months in a medium size county courthouse.) With further development, a similar approach could be undertaken to study non-verbal expressions of pleasure in the context of others’ pain or failure.
Adele E. Mantiply is a senior at the University of Alabama, majoring in Psychology and English. She anticipates attending law school in 2016. Adele has been a member of the Witness Research Lab for two years and may be contacted directly at Aemantiply@crimson.ua.edu.
Michelle A. Jones, M.A., J.D. [email@example.com] is a fourth year graduate student at The University of Alabama. She is a doctoral candidate in UA’s Clinical Psychology (Psychology and Law) Ph.D. program. Her research interests focus on how psychological evidence and testimony is utilized and perceived by legal fact-finders, in addition to other issues related to the clinical practice of forensic psychology. She practiced law in Washington, D.C. for a number of years prior to enrolling at UA.
Stanley L. Brodsky, Ph.D. coordinates the PhD concentration in Psychology-Law at the University of Alabama where he directs the Witness Research Lab (witnesslab.ua.edu). He is the author of 15 books primarily in psychology applied to the law and over 300 articles. His areas of specialization are expert testimony, jury selection, trial consultation, and clinical psychology applied to problems of crime and offenders. Correspondence with Dr. Brodsky should be directed to him at firstname.lastname@example.org.
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 That is, concussed—il a l’obusite, to use the World War I terminology for being shell shocked.
 Personal communication, September 5, 2015. The judge has requested that her name not be included.