$130M. That was the average damage award across the three mock jury panels we used to test liability and exposure for our client who was the defendant in a wrongful death case. The mock jurors were angry about the evidence they saw supporting the plaintiff’s negligence claim and they wanted to send a loud and clear message. Message received. Unfortunately, as absurd as this average damage award was, the plaintiff’s attorney had an even more absurd settlement demand, making it certain this case would proceed to trial. Frustrated by their inability to settle the case, the client decided to conduct another mock trial to see if there was anything we could do to improve the case before trial. One change was made, and the impact was significant. In the second mock trial, two of the three mock jury panels found in favor of the defense and the third panel awarded $65M. Notably, in the panel that found for the plaintiff, three plaintiff advocates wanted to award well over $100M but two well-armed defense advocates were able to exert downward pressure on the final amount.
Armed with these new insights from the changes we had made to the case presentation, we marched into the courtroom and delivered a short and targeted opening statement molded around the strategy change we made for the second mock trial. That evening, seeming to be in some sort of panic, the plaintiff asked to discuss settlement, dramatically reducing their demand to an amount no one expected. The defense countered with an even lower number and the plaintiff immediately accepted.
What was the change that we made between the mock trials? It was how we talked about proximate cause. The defense attorneys knew from day one that they wanted to argue proximate cause, but that argument was completely lost on the mock jurors in the first mock trial even though the attorney for the defense had clearly said the defense disputed that anything the defendant had done had caused this tragic incident. It was frustrating for all involved.
This problem is not unique to this case. Proximate cause has become the land of lost opportunity for defendants. When we entered the profession two decades ago, several defense attorneys told us cases could not be won on proximate cause. They had anecdotes at best, but no real data to support this argument, yet they felt strongly about it. We have seen many defense attorneys struggle and fail on proximate cause in mock trials over the years, so this viewpoint is not particularly surprising. The misconception however is that this argument cannot be won when our mock trial experience shows instead that defendants simply need to change how they talk about proximate cause. In this month’s column, we want to shine a light on how defendants can improve their chances of success on proximate cause arguments.
The first thing to understand is that jurors do not necessarily think about causation on their own. Instead, the reasoning often seems to be, if you did something wrong, you should pay the price. They never qualify that line of reasoning with, “and what you did wrong was a cause of the injury.” Instead, causation often goes assumed even when it should not be. This means the default mode for most jurors is to not even think about causation. Verdict forms often reinforce this lack of attention to proximate cause. In many trial venues, the verdict form does not have a specific question for proximate cause. Instead, the verdict form is designed based upon the assumption that jurors will understand every element of the claim and evaluate each independently. This is important because it means there is nothing on the verdict form that brings jurors’ attention specifically to proximate cause during their discussion in deliberations. And unfortunately, the verdict form is the only document we can be certain that jurors will review in their deliberations. We certainly hope they will look at the jury instructions, but even when they do in our mock trials, they seem to gloss over proximate cause.
Consequently, the first critical step for prevailing on proximate cause is to be so explicit about the argument that jurors do not lose sight of it in deliberations, and to establish the concept in their minds. This is the problem we see so often in our mock trials: defense attorneys think they are being clear about their causation argument, but it still ends up sounding like a negligence argument and, as noted earlier, jurors do not tend to go there on their own. Instead, the proximate cause argument just seems to get drowned out by everything else they hear on liability. This is why it is so important that defense attorneys walk jurors through how the law recognizes one can be negligent without that act of negligence being a cause of the injury suffered by the plaintiff. Examples can be helpful in making this point. For example, jurors might conclude that it was negligent for a defendant corporation not to train its employees on a certain subject, but also conclude that the lack of training was not an actual cause of the injuries the plaintiff suffered.
Once the concept has been clearly laid out for the jurors, the next step is to repeat and repeat and repeat. Repetition is the most rudimentary form of persuasion. Trial is a battle of salience, and the prevailing party is usually the party that exerts the most influence over what the jurors remember when they get to the deliberation room. Consequently, it is critical that the jurors have repeated exposure to the explicit proximate cause argument. Defense attorneys can be creative in their strategy of repetition. For example, they could build sign-posting questions into witness testimony that reinforces the focus on proximate cause. This could be as simple as a question like, “Dr. Smith, as you are aware, the plaintiff not only has to prove that my client was negligent, but they also have to prove that that negligence was a cause of the injury to the plaintiff, so I want to ask you a few questions about causation.” This kind of signposting, used with multiple witnesses, is a simple repetitive device to help keep causation at the forefront of how jurors think about the case.
Graphics can also help jurors understand the independent element of proximate cause along with the separate and independent burden of proof that comes with it. The most common visual analogy used in these graphics is a bridge, where each independent element of the claim represents a section of the bridge. The message is that the plaintiff must independently establish each element of the bridge before they can get to the other side, which is a verdict in their favor. A graphic like this should be used early in trial in opening statement to establish the concept and then used again in closing argument to reinforce the point.
Closing argument is another critical opportunity to shape the way jurors think about the key questions in the case. While most attorneys tend to focus on arguing in closing arguments (it’s in the name after all!), it is even more important to teach jurors how to deliberate in the closing argument and arm defense advocates with the tools they need to take control of the discussion. For most jurors, jury duty is a new and unfamiliar experience for them, so they don’t have a clear understanding of how deliberations are supposed to occur. This is why prior jury duty is the number one predictor of who will become foreperson. Jurors are quick to defer to someone who seems to know what they are doing. Jurors want this guidance. They want to be shown exactly what to do in deliberations. They want to be shown where to begin and want to be given shortcuts. Consequently, defense attorneys should use this opportunity to drive the proximate cause arguments. For example, the defense attorney might suggest jurors focus on proximate cause first when they begin their discussion since the other issues in the case won’t matter if they conclude the alleged negligent act was not a cause of the plaintiff’s injury. Jurors might find this compelling since it simplifies the process. Even better, if jurors follow this suggestion, they begin deliberations on an issue that favors the defense, which creates natural momentum in favor of the defense in deliberations.
Following the suggestion of where to begin, defense attorneys should then walk jurors through the verdict form, highlighting the key jury instructions along the way that make it clear that proximate cause is a separate question with its own independent burden of proof that jurors must answer, even if it is not explicitly asked on the verdict form. For example, the defense can start by highlighting the question on the verdict form where proximate cause is relevant. In an ideal world, this is literally a proximate cause question such as, “was the negligence of the defendant a proximate cause of injury to the plaintiff?” Unfortunately, many judges do not use verdict forms with specific proximate cause questions on them. In these instances, the defense attorney should show jurors the relevant question on the verdict form and then show them the key jury instruction for that question, highlighting any sentences in the instruction that reinforce that this is a separate and independent element the jurors must decide. After showing these items, the defense attorney should then make the proximate cause arguments and explain what they mean for how jurors complete the verdict form.
Beyond the case presentation, defense attorneys arguing a proximate cause defense also need to probe for jurors who are going to reject this concept in voir dire. There are some people who simply do not like the idea of letting a defendant “off the hook” because their negligent act did not cause the injury to the plaintiff. Some jurors want to punish a defendant for a negligent act regardless of its causal connection to the plaintiff’s injuries, so it is important to identify these people in jury selection using a de-selection approach. One example of a forced-choice question we have used in these cases is as follows:
“I want you to imagine a situation for a moment where you felt a defendant in a lawsuit was negligent, but you did not believe that negligence was the cause of the injuries to the plaintiff. I know some people who would still find against the defendant in that situation because they feel like it would be letting the defendant off the hook to say the defendant was negligent but not a cause of the plaintiff’s injuries. I know other people who would disagree and say, if that negligence was not the cause of the plaintiff’s injuries, you cannot find against the defendant. By a show of hands, how many would tend to agree more with that first group and find against the defendant because it would feel too much like letting the defendant off the hook to say it was negligent but that negligence did not cause the plaintiff’s injuries?”
Overall, the key to success on proximate cause is being explicit in establishing the concept for jurors and then holding their hand as the defense attorney shows them how it works and what it means for how they fill out the verdict form. The strategy should be akin to the instructions for putting together Ikea furniture. Defense attorneys should walk jurors through each individual step and show them how that builds up to a defense verdict on proximate cause.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
