The Dilemma of Blaming an Injured Plaintiff
It was one of the more distraught phone calls we had received from a defendant. They had just been hit hard with what was, at the time, the largest verdict in the history of that state, though most would not find the number that shocking these days. The client had never had an eight-figure verdict against them anywhere in the country, yet this jury had just hit them with nine figures.
The task was simple. The client asked us to review trial transcripts to help them understand what had gone wrong. The reason quickly became apparent—the defense attorneys were aggressive in their efforts to blame the plaintiffs for their own deaths, and while the plaintiffs had made some minor poor decisions, those poor decisions paled in comparison to the poor decisions by the defendant.
Yet, the defense attorneys were adamant that the plaintiffs were solely at fault and were aggressive in their attacks on them. After seeing this strategy in the trial transcripts, the result came as no surprise at all. Their refusal to accept any responsibility while aggressively pointing the finger at the victims had backfired in the worst way possible.
Trying to blame a plaintiff, in whole or in part, for their own injuries is tricky business as this example shows. Defense attorneys must evaluate the chances of success against the risk of anger and backlash. We have seen both ends of the spectrum in King County in the last year alone. We consulted on a case where we were very aggressive in pointing the finger at the plaintiff at trial and achieved a complete defense verdict, but we have also witnessed in numerous mock trials instances where efforts to blame the plaintiff triggered so much anger that the resulting desire to punish the defendant for its victim-blaming far outweighed the negligible gains of arguing comparative fault.
In this month’s column, we want to examine the factors that contribute to success and failure with defendants’ efforts to blame plaintiffs for their own injuries. The goal of this column is to help defense attorneys evaluate when it might be appropriate to place blame and how their presentation of this argument impacts the success of those efforts. The facts, motivations, presentation styles, and the personalities of the attorneys all play critical roles in the success or failure of these efforts. These factors should be carefully analyzed to ensure efforts to reduce exposure do not backfire and result in exposure well beyond that had the defendant chosen not to point the finger.
Despite the extraordinary risk that comes with blaming a plaintiff who has suffered a significant injury, plaintiff attorneys often adjust their trial strategy based on concerns about these attacks. A 2020 article in Plaintiff Magazine discussed the common strategy of keeping the plaintiff out of the courtroom to help jurors focus on the conduct of the defendant. The author highlighted how jurors watch plaintiffs closely throughout trial to judge the true extent of their injuries, so many plaintiff attorneys keep them out of the courtroom for the bulk of trial to avoid scrutiny.
We have also heard some plaintiff attorneys express concern that the plaintiff’s presence in the courtroom over the course of a lengthy trial might numb jurors to the shock value of their injuries, increasing their willingness to criticize them, so defense attorneys should consider how the plaintiff’s presence in the courtroom (or lack thereof) might impact this dynamic of the case. And of course, any talented plaintiff attorney will work hard to prime jurors early in trial to look out for these tactics and try to fuel anger and frustration in response.
With this in mind, let’s examine the common factors that impact the success or failure of pointing the finger at the plaintiff. The first and most important factor is to evaluate the motivation behind the effort to blame the plaintiff. Is it born out of a genuine evaluation of the evidence or instead, desperation where the evidence of comparative fault is questionable? It may seem silly to suggest desperation, but this is often the reason.
The two most common sources of desperation are the desire to break joint and several liability in cases with co-defendants and the desire to deflect responsibility however possible in high-exposure cases. Sometimes this desperation is rooted in the realization that even a 5-10% attribution of fault to the plaintiff is significant if the exposure is in the tens of millions. Sometimes this desperation simply originates with an out-of-touch insurer looking for any avenue to decrease their exposure. But this distinction in motivation is important because as one of our valued mentors Bruce Boyd once told us, “Jurors have finely-tuned BS detectors.” In other words, jurors are often quick to sniff out disingenuous and desperate efforts to evade responsibility, and the results can be devastating. The conclusion is often that the defendant is just another uncaring corporation that does not get it and needs to be sent a message to help them get it.
Similarly, the proximity of the criticism of the plaintiff to the outcome is critical. Too often, in their desperate attempts to find any way to attack the plaintiff and their credibility, defense attorneys point to issues unrelated to the incident itself. For example, years ago, we saw defense attorneys hang their hat on the discovery that the plaintiff lied on a tax return in a product liability case that resulted in significant injury. Sure, no one likes the idea of someone lying on their tax return (and dishonesty can be a significant issue), but the jurors rightfully questioned what that had to do with the incident in question. The defense attorneys thought this would undermine the plaintiff’s credibility in the case, but it had no such impact because jurors were able to compartmentalize it away.
In another example, we listened to monitoring counsel for an insurance tower insist the defense needed to argue the plaintiffs were not wearing their seatbelts when their vehicle, stopped in traffic, was rear-ended by a tractor trailer traveling at 70 mph, killing everyone inside. While true that the plaintiffs were not wearing their seatbelts, jurors were correct to conclude that seatbelts would not have made a difference in the outcome.
As these examples show, it is so important that the attacks on the plaintiff be grounded in issues central to what happened in the case, and to the reasons a plaintiff should bear some responsibility. For instance, an intoxicated plaintiff, a plaintiff who made no effort to understand a product before using it, or one who ignored clear warnings might explain what happened—something jurors are ultimately trying to figure out over the course of trial.
Consider, also, the emotionality of the claims. Highly sympathetic and likable plaintiffs who have suffered significant trauma or tragedy are obviously much more difficult to effectively criticize and defense attorneys need to tread carefully. In these cases, it is often more effective to present the issues in a matter-of-fact way without commentary and allow jurors to arrive at their own conclusions. With highly sympathetic or likable plaintiffs, jurors often adopt the mentality that, “I can talk trash on my brother, but you cannot.” In these instances, jurors feel comfortable reaching a critical conclusion on their own, but if the defense attorney makes an explicit argument along the exact same lines, jurors may be quick to reject it in an effort to protect the plaintiff.
Years ago, we worked on a case involving a young child who died while he was out with his family engaging in outdoor recreation. Sadly, the very likable parents had simply screwed up and failed to keep an eye on the child because they were trying to do too much, but it was not possible for the defense to explicitly make that argument without risking significant backlash. Instead, we repeatedly highlighted the contextual factors that led to this conclusion without ever articulating the conclusion. Specifically, we repeatedly highlighted how overwhelming the situation must have been for the family as they made the ambitious trek to engage in this outdoor recreation in a way that seemed to express sympathy and understanding towards the parents. We knew this would focus jurors on the issues that might lead them to conclude the parents had failed without us ever having to say as much, and that is exactly what happened with the jury finding in favor of the defense on all claims.
The next factor is whether jurors can relate to the plaintiff’s decision-making. The research is clear on this point. If the plaintiff made a decision or series of decisions jurors feel like they would never make (i.e., drive recklessly, ride a dangerous recreational vehicle, etc.), they are more likely and willing to blame the plaintiff. We often see this in cases involving plaintiffs who were injured while riding motorcycles. Most people think motorcycles are dangerous and are quick to assume a motorcyclist made poor decisions because they are so used to seeing motorcyclists make questionable decisions on the road. In another example, one of the authors found in his dissertation study that people were more likely to fault a plaintiff in a medical malpractice case if the medical procedure was elective than if it was not elective, even though all other facts remained the same. The prevailing attitude in that research seemed to be that people should not undergo unnecessary medical procedures, which made it difficult for these individuals to relate to the plaintiff’s decision.
Conversely, jurors are more likely to reject the criticism of the plaintiff’s decision-making if they feel like it is a decision they might make. In auto accident cases, we have seen jurors downplay a plaintiff going 5-10 mph over the speed limit because “everyone does it.” In product liability cases, we have seen jurors explain away the plaintiff’s failure to read a product manual because most people do not read a product manual. Likewise, we have seen jurors explain away signed contracts because most people “don’t read the fine print.” Jury research in the venue can help defense counsel assess the relatability of the plaintiff’s decision-making.
Similar to the relatability of the plaintiff’s decision-making is who the plaintiff is, and who the defendant is. Jurors obviously treat children differently than adults, yet we have seen defense attorneys try to hold a young plaintiff child to adult standards, which jurors were quick to reject. Other demographics and socio-economic factors can impact willingness to blame a plaintiff as well. It is not unusual to see jurors be more forgiving of low-income or low-education plaintiffs than high-income or high-education plaintiffs. In fact, we have seen a few recent cases with plaintiffs so wealthy jurors found it difficult to relate to them, which made it easier for jurors to embrace criticisms of them. Wealth seems to translate to higher expectations or in some cases, the personal joy of telling a rich person they got what they deserved.
Sometimes politics factor into the role that socio-economic factors play. For example, we have seen two recent cases involving plaintiffs who had not legally entered the United States. Illegal immigration is obviously a hot-button issue under the current administration, and this influenced how jurors reacted to this factor. One of the cases was in a more liberal venue and our jury research found that jurors were more protective of the plaintiff due to sympathy for how the population of illegal immigrants is being treated by ICE and the administration. While there was temptation on the part of the defense attorney to highlight the plaintiff’s illegal status, the research made it clear that any effort to do so would backfire in terrible ways.
Jurors’ sensitivity over immigration status highlights another key factor that can influence the success or failure of efforts to blame the plaintiff, which is the social acceptability of the argument. Cases involving allegations of sexual harassment or abuse come to mind here. The “Me Too” movement changed the social dynamic of these issues. The social norm became that we should always believe and support people who claim to have suffered sexual abuse, even in situations where evidence may be limited or contested. Consequently, a defense strategy that questions the evidence for these claims or the credibility of the plaintiff making those claims runs significant risks. What matters for trial strategy in cases involving these kinds of sensitive issues is not whether jurors privately question those claims, but whether they feel comfortable voicing those questions in a room full of strangers.
Deliberations are social environments. Jurors are constantly evaluating not just the case, but each other. When an argument carries social risk (i.e., when it might make a juror appear insensitive, biased, or out of step with prevailing norms), that argument is less likely to be raised, defended, or sustained in deliberations. Even skeptical jurors may remain silent if they believe expressing their skepticism could invite judgment or conflict. This dynamic can significantly blunt efforts to blame a plaintiff. Consequently, an argument that seems logically sound to a defense attorney may backfire in deliberations if jurors feel it crosses a social line.
Who the defendant is can play a significant role as well. The David v. Goliath theme in cases involving individual plaintiffs against large, corporate defendants is effective because jurors are most often going to hold the party with more money, resources, and knowledge accountable. In these cases, efforts to blame the plaintiff are often viewed as the typical and expected efforts by large corporations to avoid accountability at all costs. As a result, criticisms of the plaintiff, rather than shifting attention to the plaintiff, only reinforce the critical focus on the corporate defendant. Most importantly, jurors simply hold large corporations to higher standards and sometimes conclude the corporation had a responsibility to protect the plaintiffs from themselves.
The style and personality of the defense attorney can also be an important factor in whether an effort to assign blame to the plaintiff lands or backfires. The same argument can produce completely different outcomes depending on who delivers it and how it is delivered. Some attorneys have an instinctive feel for tone on sensitive issues and understand how to balance accountability with empathy while others approach these arguments in a way that feels harsh, detached, or overly aggressive.
At its core, success in this area often comes down to credibility and emotional intelligence. The most effective defense attorneys convey genuine compassion for the plaintiff while still advancing criticism of their conduct. They acknowledge the injury, validate the human impact, and then carefully explain how certain decisions contributed to the outcome. Just as important, they are attuned to the social dynamics in the courtroom and the deliberation room. They understand when an argument needs to be softened, when it needs to be reframed, and when it may be better left unsaid.
While this may sound like a basic advocacy skill, our experience suggests otherwise. Attorneys who can strike this balance consistently are in the minority. Too often, defense counsel lean too far into the attack, assuming confidence will carry the day, when instead it is alienating. The problem is compounded when the attorney appears to take satisfaction in the criticism. Even subtle cues such as a smirk, sarcasm, or an aggressive tone, can signal to jurors that the attorney is enjoying the attack. Once that perception takes hold, the argument is no longer about the plaintiff’s conduct and instead becomes about the attorney’s character and, by extension, the values of the client they represent.
Finally, as with any case, jury selection can influence the success or failure of any effort to blame a plaintiff. There are personality types, beliefs, and experiences that impact jurors’ willingness to blame plaintiffs, and these should be probed in voir dire. Notably, academic literature talks about locus of control. Individuals with a strong internal locus of control tend to blame people for what happens to them while people with a strong external locus of control tend to blame external factors, so this is an important issue to probe. Additionally, we will often have defense attorneys directly ask if any venire members dislike the idea of a defendant blaming the plaintiff for their own injuries. We will also ask if anyone has ever felt unfairly blamed for their own injuries as these individuals are more likely to be protective of the plaintiff.
Blaming a plaintiff for their own injuries is not inherently wrong, but it is inherently risky. The difference between success and failure rarely turns on the existence of comparative fault alone, but on how that argument fits within the broader social, emotional, and narrative context of the case. When grounded in credible evidence, tied directly to the outcome, and delivered with discipline and empathy, these arguments can be effective. But when they are driven by desperation, disconnected from the core issues, or presented in a way that offends jurors’ sense of fairness, they can quickly become the very reason a case is lost. The key, as always, is not simply whether the argument can be made, but whether it should be made, and whether jurors will accept it when it is.
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.
