Injury Trials: Defeating Ambiguity
I wrote this blog/article primarily for my own, Eric Roy, and my staff’s benefit. These concepts were first introduced to me by Rick Friedman who is considered one of the best plaintiff’s trial lawyers in the country. His concepts have been incorporated by other great trial lawyers such as Don Keenan amongst others. For a thorough understanding of the material I direct you to any of the Rick Friedman publications which provide a wealth of information. In particular, check out Rules of the Road, written by Rick Friedman and Patrick Malone.
Given the era of tort reform it is now more difficult than ever to achieve plaintiff’s verdicts. When we go into trial we go in with the cards stacked against us as plaintiff’s lawyers. The reason for this is due to the multimillion/billion dollar tort reform campaigns which have created an aura of distrust for plaintiff’s lawyers and a distrust of personal injury law suits generally. Thus, to win a plaintiff’s case we need jurors who are firm in their resolve to support your plaintiff cause. The defense knows this all to well. One of the defense’s strongest tactics is thus to create ambiguity and confusion at trial. A confused or indecisive juror will not rule in your favor given this anti-plaintiff stigma. Thus we, as plaintiff’s lawyers, need to know how to cut through this ambiguity and uncertainty. We need to create certainty in our trials.
One of the best ways that the defense can go about creating this ambiguity and lack of certainty is to fall back on the word “reasonable”. In negligence cases this word is often operative in the jury instructions. The question is whether the doctor acted “reasonably” in his conduct or whether security took “reasonable” action under the circumstances. This word “reasonable” is murky and not well defined. The word essentially creates a safe harbor for the defense to hide or cloak its conduct. Thus, for us as plaintiff’s lawyers to create certainty we need to define “reasonable”. To do this we don’t use the definition of reasonable as found in the dictionary. Instead we teach the jury that reasonable conduct is defined by whether the defendant abided by or violated certain rules. We then need to teach the jurors what these rules in fact are. Once the jurors understand the rules and then determine that the defendant violated those rules you have just defeated the ambiguity of “reasonableness”.
Thus, the first thing we go about doing is creating these rules. After we create our rules we can introduce our jurors to these rules. We can explain to the jurors that when these rules are followed the defendant has acted reasonably. When the defendant doesn’t follow these rules he has not acted reasonably. We introduce our rules in our opening statement. A good way to do this is to put each rule on poster board. Then, as you go through your rules in opening bring out each poster board one by one with the rule stated clearly on the face of the board. Leave each board up as you progress through the end of your opening statement. There is no set amount of rules to use. But the bottom line is you only want to use rules that the Defendant clearly violated. If the Defendant did not violate the rule then do not introduce it to the jurors. In addition to this, do not introduce a rule, assuming it was violated, if its violation will have little effect on your jurors. For instance if the failure to follow the rule was minimal or resulted in minimal damage then don’t introduce it. Only introduce rules that will greatly increase your likelihood of receiving a plaintiff’s verdict.
As you walk the jurors through each rule in opening you need to first explain the rule and why it is important that the rule be followed. Give examples beyond the context of your case of show a failure to follow the rule could hurt people just like the individuals in the jury box. Then explain that the defense agrees that this is a rule and that the defense agrees that it is a rule to be followed. You will generally secure this agreement by way of deposition and/or policies and procedures that govern defendant’s conduct. Then you can go on and explain that each of your dozen or so rules was violated by the defendant. You let your jurors know that you will show them throughout trial how defendant violated each and every one of these rules. We are cutting through complexity and confusion by teaching our jurors effectively. Teaching is the best form of advocacy, especially early on in trial.
We need to be careful when crafting our rules. If they are not crafted correctly then they will simply create more ambiguity and confusion which is counterproductive for your case. To that end, your rules need to be simple and easy to understand. That means no legal jargon. It also means that the rule should have as few words as necessary. Preferably your rule is no more than a sentence. A requirement of your rule is that it clearly command the defendant to take a certain action or to refrain from taking a certain action. For example, “a driver should keep his eyes on the road when he is driving”. Or “a driver should not use his phone to text message while he is driving”. These rules clearly prescribe who should take action and in what context that action is proscribed. In this example, it is a driver who must do or not do something while driving. It is very clear and easy to understand. If you find your rule in a policy manual or statue or some other governing body it will likely be written in a way that is much too convoluted and ambiguous to use as a rule in trial. Thus, in my opinion, it is good to start with the rule from the manual or policy and then rephrase the rule in deposition questioning. Once the defendant agrees with your common sense definition of the rule you have locked the defense in to a rule which is much easier for the jurors to understand.
Your rules must not be easily deniable by the defendant. The best way to do this, as I just referred to, is to lock the defendant into agreeing with the rule definition in deposition. In this way you don’t get into a debate with a hostile witness in the midst of trial. That debate will leave the jurors without a sense as to whether the witness agrees with the rule nor whether the defendant agrees it violated the rule. Alternatively. there will be some rules that won’t require you to necessarily lock in the rule beforehand by way of deposition. These are what Rick Friedman calls “common sense” or “moral imperative” rules. With these rules, the defendant will look worse by denying the validity of the rule than by admitting the rules existence. For instance, let’s return to the rule requiring drivers not to text message while driving. If you ask a witness on the stand whether a driver should or should not text message while driving, the witness will look ridiculous by stating anything other than that a driver “should not” text message while driving.
You need to be able to clearly prove that the defendant has violated each of your rules. Thus don’t put a rule in front of the jurors in your opening statement unless you are sure that you will be able to clearly show the jurors, during trial, that the defendant violated that same rule. This is again why you make sure your rules are not ambiguous in their language. You do not want to leave the defendant with as escape route. You need your defendant locked into these rule violations. Again, a deposition is a key tool to achieve this result.
Lastly, each and every rule you introduce to the jurors needs to be important. You probably shouldn’t introduce a rule unless you are sure that showing defendant’s violation of that rule will greatly increase your likelihood of receiving a plaintiff’s verdict. For example, you may be able to establish a rule that an insurance adjuster must return the call of its’ insured. You can likely get the defense to agree to this rule. You can likely show that the defendant violated this rule. However, this one rule violation is likely not of sufficient importance to your case to merit presentation to the jurors. Remember, that in trial less is often more.