When defending a client's actions it's important to remember that those actions will be judged not solely on the basis of outcome but also on the basis of your client's freedom to have varied from the choice it made, its relative power vis-a-vis the plaintiff, its intentions and, I suspect, whether any benefit accrued as a result of those actions.
Why this is so is explained, perhaps, by findings related to the so called trolley problems. In the standard trolley problem a runaway trolley is running down the tracks and will crash and kill all five people on the trolley unless something is done. A bystander has the option to throw a switch which, if thrown, will divert the trolley onto another track where it will run over and kill a pedestrian but save the five people on the trolley. Various permutations of the problem involve varying the bystander's range of choices, intentions and physical actions in diverting the trolley. These permutations elicit, from those judging the bystander's conduct, widely differing views of her culpability though in each iteration, from a strictly utilitarian perspective, five are always saved and one is always lost if she chooses to save the five.
In their new paper "
Pushing moral buttons: The interaction between personal force and intention in moral judgment" Joshua Greene, et al. examine the impact on how an action is judged when personal force is applied. Hat tip:
MarginalRevolution which has a nice discussion of the issue. Perhaps not unsurprisingly though the outcome is the same (net four lives saved) people's judgment of the life-saving action seems to vary with the degree of force applied.
Generally speaking, diverting the trolley so that one fungible person is killed and five equally fungible people are saved is judged most favorably. On the other hand shoving a fat man under the trolley to stop it from crashing is viewed most harshly.
The takeaway for our purposes is that focusing exclusively on the consequences of a client having acted rather not having acted risks allowing the other side to frame the narrative such that moral outrage over a conscious decision to harm an identifiable person or group of persons overcomes, and so outweighs, any positive judgment of that same decision.
