By Thomas M. O’Toole, Ph.D & Kevin R. Boully, Ph.D.
Last year, we wrote about the growing importance of proximate cause arguments. When we both entered this profession over 20 years ago, attorneys told us cases could not be won or lost on proximate cause. What seemed specious at the time has since been proven definitively wrong.
As recently as May of this year, a King County jury found in favor of the defense on proximate cause in a significant personal injury case despite finding the defendant negligent. When asked after trial, one of the jurors explained that they did not like the defendant’s conduct and wanted to send a message to the defendant by finding it negligent, that it should change its conduct, but ultimately did not believe that negligent conduct was a cause of injury to the plaintiff. We have seen similar verdicts in other venues in recent years, all demonstrating jurors’ willingness to carefully scrutinize proximate cause arguments.
Our previous column on proximate cause focused on what we have learned anecdotally through our mock trials and shadow jury projects over the years. Unsatisfied with anecdotal experience alone, Sound Jury Consulting conducted a nationwide study this year of over 800 mock jurors to collect data on how jurors evaluate proximate cause arguments. The study posed two primary questions: (1) Does the way in which defense attorneys talk about proximate cause impact how jurors evaluate it? and (2) Does the structure of the verdict form impact how jurors evaluate proximate cause? Finally, this study revealed some of the key hurdles that explain why proximate cause arguments by defendants are not always effective. In this month’s column, we share the results of this study.
The study used the case of an automobile accident where a delivery driver, who was going 10 mph over the speed limit, hit a patch of ice, lost control of the delivery truck, and struck an oncoming vehicle, causing the plaintiff’s neck and back injuries. Participants were told that while the temperature was below freezing, there had been no precipitation in the two weeks prior. Instead, the ice was caused by a pipe that burst at the strip mall along the road, causing water to cover the street, which then froze. In other words, the delivery driver had no notice — no reason to believe there might be ice on the road. Finally, the participants were told the experts will testify that while the delivery driver was going 10 mph over the speed limit, his speed would not have made a meaningful difference in his ability to maintain control of his vehicle when it struck the ice and would not have significantly changed the force of the impact on the plaintiff’s vehicle. In short, the driver had no notice and his speed was irrelevant.
The participants listened to arguments from both the plaintiff and the defendant and then completed a verdict form and a questionnaire. The research tested two variables. First, some participants completed a verdict form that had negligence and proximate cause as separate questions while others completed verdict forms that had them merged into a single question, the latter of which is common in many venues outside of Washington state. Second, some participants heard defense arguments that explained in great detail how proximate cause works and why they should not find in favor of the plaintiff on proximate cause even if they believe the defense was negligent. We will refer to this as the “explicit proximate cause argument.” Others heard a much simpler version, more akin to what we often see at trial, where the defendant argued that the driver’s speed did not affect what happened, so the participants should not find the defense liable for the plaintiff’s injuries.
We will start with the study’s most interesting and shocking finding. Across all scenarios, the plaintiff was significantly more likely to prevail on proximate cause when negligence and proximate cause were broken out into separate questions on the verdict form. In both variations of an explicit proximate cause argument by the defense and the general argument, participants were significantly more likely to find in favor of the plaintiff on proximate cause when the questions were separated on the verdict form. Even when provided the explicit proximate cause argument by the defense, participants were 20% more likely to find in favor of the plaintiff on proximate cause if they completed a verdict form that had the separate questions than if they completed the verdict form with negligence and causation merged into a single question.
These results are contrary to what most would expect. We often hear folks in our industry tell defense attorneys to request a verdict form that separates the issues into two questions, with the goal of forcing discussion on proximate cause, but our research suggests such a recommendation might be counterproductive. To better understand this result, we went back and watched recordings of mock jury deliberations where proximate cause was an issue raised by the defense. In cases where the issues were separated on the verdict form, discussions on negligence were longer, which meant the plaintiff’s case built early momentum in deliberations — before the jury even got to the proximate cause argument that favored the defendant. Also, the prolonged focus on negligence facts unfavorable to the defendant generated anger early that cut against motivation to let the defendant “off the hook” with proximate cause. Even worse, in some instances, we saw defense-oriented mock jurors wasting stamina and credibility fighting plaintiff advocates on negligence, creating early losses for these defense advocates that impacted their motivation and/or ability to continue effectively arguing in deliberations.
In contrast, in deliberations where negligence and causation were combined into a single question, which is more common in southern venues like Texas and Georgia, we saw much shorter discussion about the negligent acts of the defendant because defense advocates were quick to jump in and question causation. With the issues being merged into a single question, plaintiff advocates were not able to argue that the question at hand does not relate to proximate cause like they were where the verdict form separated the issues. In other words, defense advocates were able to jump in and take control of the discussion much earlier in deliberations when the issues were combined on the verdict form. The lack of a drawn-out discussion on negligence alone made it more difficult for anger to develop and for plaintiff advocates to gain momentum.
Defense attorneys stuck with verdict forms that separate out negligence and causation may understandably wonder what value this finding has for them, but there are practical takeaways for this scenario as well. One of the key issues is how the verdict form impacts where jurors start their discussion in deliberations and where they spend their time early in discussion — which can influence the results. Defense attorneys who are relying on proximate cause arguments should argue in closing argument that jurors should start the discussion on proximate cause since it is the most important issue and will determine whether they need to discuss anything else. Defense attorneys need to show jurors how to deliberate in closing argument, which is a task that is often forgotten. Instead, too many attorneys use closing argument only to summarize the evidence and make their argument, but jurors want guidance on how to go about deciding the case, and defense attorneys may be able to make a compelling efficiency argument for why they should begin with the proximate cause question when they begin their deliberations.
The second key finding from this study is that explicit causation arguments, where the defense attorney walks jurors through how proximate cause arguments work and what they mean, have a significant impact on verdicts. Regardless of the verdict form used, the two scenarios where the defense attorney used explicit proximate cause arguments resulted in significantly fewer participants finding in favor of the plaintiff on proximate cause. This result shows how important it is for defense attorneys to walk jurors through the logic of a proximate cause argument, which most jurors do not intuitively understand on their own. Here is the additional paragraph that was argued in the explicit proximate cause defense presentation so you can see how the logic of the argument was broken down for jurors.
“This is important because the law recognizes that an individual can be negligent, but that negligence might not be the cause of the plaintiff’s injuries. This is why the law asks you to determine whether the defendant was negligent in one instance AND THEN SEPARATELY, whether that negligence was a proximate cause of the plaintiff’s injuries. The plaintiff has to prove both negligence and causation by a preponderance of the evidence. You cannot find in favor of the plaintiff unless you conclude the defendant was negligent AND that negligence was the specific cause of the plaintiff’s injuries. Here, you may understandably conclude that it was negligent of our driver to exceed the speed limit by 10 mph, but his speeding was not the cause of this accident. The evidence shows that the force of impact at 35 mph would have still resulted in the same injuries for the plaintiff. In short, our driver’s speed did not cause this accident. This accident was caused by ice in the road that no one could see or have reasonably expected. Consequently, we ask you to find in favor of the defense by concluding that the defendant’s actions were not a proximate cause of the plaintiff’s injuries.”
Despite these findings on how the verdict form and defense presentation can impact jurors’ willingness to find in favor of the defense on proximate cause, the study showed some limitations. For example, 33.5% of the participants who agreed that the speed of the Swift Deliveries driver was not a cause of the accident still found in plaintiff’s favor on proximate cause. A closer look at the data explains this disconnect. First, participant anger was a factor. Participants were asked to rate their anger toward the defendant on a scale of 1 to 10 (with 1 being “not at all angry” and 10 being “very angry”); those who found in plaintiff’s favor on proximate cause had average anger scores twice as high as those who found in favor of the defense on proximate cause. They were also significantly more likely to believe delivery companies put profits before safety and that too many delivery drivers drive unsafely. Consequently, managing juror anger and frustration at trial is critical to success on proximate cause.
Second, the study revealed there were participants who were simply unwilling to let the defendant “off the hook” by finding in favor of the defense on proximate cause. For example, 87% of those who found in plaintiff’s favor on proximate cause agreed that, “If Swift Deliveries, Inc. was negligent, they should have to pay money in this lawsuit regardless of whether that negligence was the cause of the plaintiff’s injuries,” compared to only 59% of those who found in defendant’s favor on proximate cause. Similarly, 79.5% of those who found in plaintiff’s favor on proximate cause agreed, “I would have a hard time concluding that Swift Deliveries’ negligence was not a cause of the plaintiff’s injuries because that feels too much like it is letting Swift Deliveries off the hook for its driver’s actions,” compared to only 43.8% of those who found in favor of the defense on proximate cause.
Defense attorneys may wonder at this point what they can realistically do about this attitude, but it is something that is easy to tackle in voir dire. Proximate cause is rarely addressed in voir dire, but there are good strategies for doing so. For example, defense attorneys may consider a simple forced-choice question like the following:
“I want you to imagine a situation for a moment where you felt like a defendant in a lawsuit did something wrong, but you did not believe that the defendant’s wrongdoing caused any harm 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 did something wrong, but it was not a cause of any harm to the plaintiff. I know other people who would disagree and say, if the error did not harm the plaintiff, you can’t 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 the defendant did something wrong, but that the error did not cause harm to the plaintiff?”
We recently had a defense attorney offer a similar example of a drunk driver for a voir dire question, suggesting the potential jurors be given a scenario of someone driving drunk home from a night out with friends when another driver crosses into the lane of the drunk driver colliding with the drunk driver’s vehicle and causing injury to them. This example may be useful because it offers a classic example of negligent conduct (drinking and driving) that jurors may struggle to overlook.
Overall, this new data reinforces that defendants can prevail on proximate cause, but also highlights all the work that must be done along the way, starting early in voir dire, because proximate cause is not an argument most jurors intuitively understand on their own. Defense attorneys should not rely on the jury instructions and verdict form alone. Instead, they need to take jurors by the hand and walk them through the logic and structure of the proximate cause argument so they understand that it is not enough to conclude the defendant was negligent, no matter how frustrating that negligence might have been.
Thomas M. O’Toole, Ph.D., is president of Sound Jury Consulting in Seattle. Kevin R. Boully, Ph.D., is senior consultant at Perkins Coie in Denver.
