Alternative Causation: Do Jurors Care About the Burden of Proof?
While it may be true that in civil cases, the plaintiff has the burden of proving their case by a preponderance of the evidence, jury research demonstrates that jurors don't care about the technicality of alternative causation. Instead of focusing on the formality of the situation and that the plaintiff has the burden of proof on causation, for jurors, human information processing frequently drives them to identify the cause. Because of this, defense attorneys must help jurors by providing alternative causation considerations to move them to consider damages. For the defendant, this alternative causation must cast enough doubt on the plaintiff's version to find for the defense.
Keeping in mind that jurors don't always care about the burden of proof, defense attorneys should not wait to begin talking about alternative causation until it is too late. Alternative causation can be part of opening statements and can even start during voir dire by reminding jurors to follow the judge's instructions. Courtroom Sciences can help defense attorneys test alternative causation options through scientifically-valid jury research.
Regarding alternative causation, do jurors care about the burden of proof?
One of the most significant issues that jurors struggle with understanding is causation. Jury research demonstrates that jurors don't care that the plaintiff has the burden of proof on causation. For many jurors, the burden of proof is confused with "beyond a reasonable doubt" due to their lack of understanding and what they have seen in TV shows and movies.
Jurors Are Looking For Alternative Causation
People immediately begin looking for a reason when virtually any event occurs, particularly an adverse event. It is human nature for people to want to figure out why something happened, and the response of, 'we don't know why it happened,' is seldom satisfying. The same innate drive occurs with jurors as they seek out alternative causation.
Yet, even though jurors search for causation, defense attorneys don't always provide it or may give it too late. Too often, defense attorneys may attempt to either begin with a defense that is one of denial, or they may call on the plaintiff to overcome the burden of proof. In either case, jurors generally do not receive these types of defenses well.
Defense attorneys may also fall into the habit of arguing a case in the same order as the verdict form: liability, causation, and damages. Yet, this isn't necessarily the most effective way to do it. In actuality, defense attorneys, in the first fifteen to thirty seconds of opening statements, need to put something else on trial that is not their client. They need to provide jurors with alternative causation.
Alternative Causation Begins With Voir Dire
Although the judge instructs jurors that the plaintiff has the burden of proof on causation, many jurors just don't care. If jurors want to award the plaintiff a monetary award, they will work backward from the damages to the negligence and causation. To help jurors understand causation, they must be educated and indoctrinated about causation.
The purpose of voir dire is to obtain a fair and impartial jury, and the most effective way to educate jurors starts in voir dire by asking the right questions. These questions should help ensure jurors follow the judge's instructions and possibly create cognitive dissonance during deliberations. These types of questions may include:
“If you see one of your fellow jurors in deliberations jumping from question one liability to question three damages, are you going to hold them accountable?”
“Will you hold your fellow jurors accountable to the judge's instructions?”
The Importance of Alternative Causation
The reality is that most jurors will not sit in a jury room and make a statement like, 'I don't think the plaintiff met the burden of proof on causation.' Quite simply, jurors don't talk like that. That puts it on defense attorneys to begin to plant the seed of alternative causation during voir dire and then make sure it gets repeated during opening and again during closing so that by the time the jury gets to deliberations, they have heard it a few times.
Alternative causation gives jurors a different scenario to discuss during deliberations. It is something that defense attorneys will need to start doing more of in the future, particularly in the types of cases where the defense has high exposure. The jury is going to want answers.
Alternative Causation and Admitting Liability
Another option for defense attorneys is to admit liability, completely bypass arguing, and move directly to causation. This makes some defendants uncomfortable, but accepting liability and making your question number one be causation can also reduce damages. The key is to use a focus group or a mock trial to test these cases.
The defense can test both scenarios, first arguing on liability and causation and see what happens with damages, then admitting liability, taking liability out of the equation, claiming causation, and seeing what happens with damages. Most plaintiff attorneys don't like clients that accept liability because it takes away a lot of anger and a lot of the weaponry they depend on. These situations, in particular, need jury research to secure the best outcomes.
Even though jurors may not understand causation, Courtroom Sciences knows the significant importance it plays. Our litigation research experts can help assess your case early by providing science-backed data that lead to predictive results and superior litigation outcomes. Speak with one of our experts to get started.
● Jury research demonstrates that jurors don't care that the plaintiff has the burden of proof on causation.
● To help jurors understand causation, they must be educated and indoctrinated about causation.
● Defense attorneys must begin planting the seed of alternative causation during voir dire and then ensure it gets repeated during opening and closing.
● The litigation experts at Courtroom Sciences can help assess your case early by providing science-backed data that lead to predictive results.
Juror Confirmation Bias