Category Archives: Burden of Proof

January 5, 2013 · 11:05 pm

Beating Preponderance – The Trouble With Battling Experts

I consult on many different types of cases from medical malpractice, insurance bad faith, personal injury, wrongful death – the list goes on. While every case is different, I notice a common theme in many of my consults. As I talk through the case with counsel, I look for potential holes. I try to see the case through the eyes of the worst juror for that side. Through asking questions, I often discover problems in a case that the attorneys never knew existed – sometimes so substantial that attorneys have had to settle the case or, if they’re lucky enough to still be in discovery, make some drastic changes. But even on the “good” cases, the ones that were worked up well and have a strong base from which to build on, I often see attorneys blinded by their story of the case.

Here is an example of the conversations that I seem to be encountering over and over:

Me: What is the defense side of the story?

Attorney: They say X, Y, Z. But they have nothing to back it up.

Me: Well what does their expert say?

Attorney: They will say A, B, C.

Me: How do you know that’s wrong?

Attorney: Because our expert says so.

While cases often are a battle of the experts, you need more than that. If you are the plaintiff, you must prove preponderance. If at trial all jurors hear is your expert versus theirs, that often ends in a toss-up. You may think your expert is better qualified or more likable and sometimes that’s true, but unless there is a glaring discrepancy between the quality of your expert versus theirs, changes are that jurors will count it as a tie. As a defense attorney, a tie may be enough. Legally, a tie would signal less than preponderance. But combined with other aspects of the trial such as your client or how the judge rules on evidence, you may still fall behind. No one wants to be in the position of trying a case that you win just by the skin of your teeth because that means you could just as easily have lost.

So what’s the solution? You need to present your story of the case, but you cannot ignore the other side’s story. You need to address it and not just by having an expert who says their side is wrong. Why is it wrong? What steps did their expert miss in doing the analysis? What inaccurate assumptions did their expert base his/her opinion on? Why is your expert’s analysis more valid? When testing for a TBI, did the medical examiner follow all protocols regarding lack of distractions during testing? Did they rule out other causes of the symptoms? Did the police create a report by following proper police protocol in terms of being unbiased and interviewing the parties? Did your life care planner take into account the fact that once someone lives to a certain age, they are more likely to live longer whereas their planner relied on life tables? You need to explain to jurors why the other side came to different conclusions. In most cases, both sides have paid experts. To point out how much the expert is being paid is fine but it usually equals out between the two sides and jurors understand that experts need to be paid for their time. You need to address not only your story but disprove theirs. This is not always possible, but I see many cases where it is possible and the attorneys simply haven’t taken the time or thought to figure it out. Don’t assume that having an expert who counters the other side’s expert opinion is enough. You need to show why they are wrong.

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May 20, 2012 · 6:53 pm

Where You Are Losing Leverage With Preponderance

Preponderance is one major foundation of all civil lawsuits. If jurors truly made their decisions on the basis of more likely right than wrong for liability AND damages, there would be many more plaintiffs verdicts.  David Ball has done wonderful work in his Damages books teaching attorneys how to weave preponderance into a case from voir dire through closing but there may be one major area where you’re missing the leverage preponderance gives you.

My father is a neuropsychiatrist.  He has been deposed before and testified at trial.  Recently he was deposed about a prior patient of his. Afterward, we had a discussion about preponderance.  He told me that the attorney asked if various things were more likely true than not, a phrase he has become very familiar with after listening to me talk, but that the meaning of the phrase never really sunk in.  When he was hesitating on a question, the attorney asked if it was just 50.001% true and it clicked – more likely than not means only 50.001% – and he quickly answered the question that of course it was at least that probable!  When I asked what he thought “more likely than not” meant, he said it obviously did mean 50.001% but that without the percentage being directly pointed out to him and without time to really sit and think about the meaning of the phrase, it just meant a lower standard than “beyond a reasonable doubt.”  In asking a few other doctors about their perceptions, I got the same answers.

You may be losing ground with your own experts as well as cross-exam of the defense experts if you are not clearly pointing out that “more likely than not” means 50.0001%.  While it’s obvious that the phrase can mean nothing more than that, I’m finding that many people do not think hard enough to put it in those terms. Make sure to explain what it means in percentage terms and if a witness is waivering, remind them that it only means 50.001%.

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Filed under Burden of Proof, Voir Dire

January 12, 2012 · 3:22 pm

What Do Jurors Care About?

Do you ever feel like jurors decided your case randomly or based on something other than the evidence you presented?  It’s highly probable.  It happens often and you need to understand not only how to minimize that risk, but how to control for it and use it to your advantage.

This blog is named “jurorproof” for a reason.  Most everything I post about has to do with proving your case to jurors.  That may sound obvious, but please make sure you understand the significance.  There is a huge difference between “legal proof” and “juror proof.”  Legal proof is what you have to prove to meet the elements of the claim.  The judge requires it and the jurors to some degree care about it when the go to fit the evidence into the verdict form.  But to really win over a jury, you need to appeal to juror proof – the things jurors want and need to hear that may be completely unrelated to proving your claim in a legal manner. 

For example, in a medical malpractice claim, you not only have to show duty, breach, causation, and injury.  Jurors may care about your client’s hopes for the future.  They care that your client drafted a living will before going into surgery because it means (to them) that your client had a death wish (yes, this has come up in a couple of my focus groups).  They care that there was no secondary backup system for files even if not required.  These are things that they need to fill gaps in the stories they create based on their own experiences and backgrounds.

In 1986, Pennington and Hastie did research on mock jurors and found out that only 55% of story references made by mock jurors are made to events/evidence directly testified to whereas 45% were made from inferred actions, mental states, and goals that jurors drew from their own backgrounds to fill in gaps in the story.  Is this just in mock trials?

Well, in 1996, the Arizona Project kicked off where judges in Arizona allowed video cameras into the deliberation rooms of real juries.  The numerous tapes and transcripts (I’ve seen them myself) back up the reasearch from Pennington and Hastie.  Sometimes you want to scream at the jurors to get back on track – you want them back on legal proof grounds.  But that’s not what matters to them.

So what does all of this mean for you?  For one, it means that you need to fill in gaps in your story before the jurors do it for themselves.  One thing that makes for a believable story is that it is comprehensive.  The less gaps the better.  I understand that if you have an illegal alien for a client, you may not want to bring up that piece of information to the jurors if you have an order from the judge excluding it from trial.  But if jurors see your Spanish-speaking Hispanic client, they will wonder it themselves.  This is something they will care about.  Whether your client is illegal or not has nothing to do with legal proof but you better believe it’s a big part of juror proof.  Deal with it in voir dire.

Secondly, do some research.  Find out ahead of time what juror proof for your case is.  The only way to do this is to talk to real people – people who match the demographics of your trial venue.  If you can’t afford to hire someone to do a focus group in a reliable manner, at least talk to some neighbors.  Go to a mall and talk to strangers about your case.  Buy them a coffee or ice cream in exchange for their time.  Without that feedback, you would never know that having a living will means having a death wish to jurors, for example. 

Don’t go into trial blind to the juror proof.  You would never go into trial without knowing the legal proof you need to fulfill.  This is no different and equally important.

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February 21, 2011 · 3:44 pm

Either Jurors Didn’t “Get” Instructions, OR…?

http://news.cincinnati.com/article/20110218/NEWS010702/302180096/Experts-Widmer-jurors-comments-raise-legal-questions-?odyssey=tab%7Cmostpopular%7Ctext%7CFRONTPAGE

In case you don’t care to read the article linked above, it details some interviews with jurors from the Widmer trial (husband allegedly drown his wife).  Jurors made comments such as “evidence to us didn’t prove innocence” and the fact that the defendant didn’t testify was “bad,” seemingly indicating that the jurors disregarded instructions that the burden of proof is with the prosecution and that the defendant’s decision not to testify should not influence their verdict.  The attorneys in the case gave examples of these instructions during voir dire or opening and, I would presume, again at closing, so what happened?

There are three options:

1. The jurors had in their minds, based on prior knowledge about the case and/or the story they constructed for themselves during trial, that the defendant was guilty.  If our gut reaction tells us something, we often make up rational excuses to justify our feelings.  So, it may be that the fact that the defendant did not testify had actually nothing to do with their decisions, but that it seemed in their rational and conscious minds to be one way to justify their unconscious leanings. 

2. The attorneys did not carry the burden of proof throughout the trial.  It is very hard to get jurors to recognize that the defendant must prove nothing.  The more the attorneys could have had other witnesses remind jurors of this and armed jurors during closing for some of those comments (such as “he didn’t prove his innocence”), the better chance they would have had at preventing a verdict based on those issues.

3. The jurors simply decided to nullify the law.  In some states, this is legal, but whether legal or not, it happens all the time.  It is very hard for jurors to follow a law they see as archaic and wrong.  There are ways to guard against this, but at the end of the day, there will always be jurors who want to nullify.

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