Preponderance of the Evidence
This article was written primarily for my, Eric Roy, and my staff’s benefit. Here we will discuss the importance of educating the jury as to the proper burden to apply when deciding a personal injury case. As attorneys, we frequently forget that terms of art, which are commonsensical to us, are completely foreign to laypersons. Thus it is important that as attorneys we remember to speak in a language which is understandable by laypeople. The reason for this is that we want jurors to understand us when we speak. If they cannot understand us how can they follow our case? Trials are difficult enough to follow as is for most jurors. Additionally it is important that we use lay terms so as not to come off as being pompous or arrogant to fellow jurors. Remember that a stereotype exists that we, as attorneys, are in fact pompous and arrogant. Thus we need to dispel jurors of this notion as soon as we can in any given case. A juror who finds you as pompous and arrogant will be reluctant to befriend you and decide in your client’s favor.
To this same end, we need to teach the jurors what certain terms mean. Terms like “preponderance of the evidence” will be introduced to the jurors. These jurors will then go back into deliberations understanding the burden of proof to be “preponderance of the evidence” without any real understanding of what this unfamiliar term even means. You need to teach the jurors what this term means because if you don’t they will interpret this term against you. What the term preponderance of the evidence means is simply that the evidence shows more likely than not that the plaintiff should prevail. Thus this is a simple majority or burden of 51%. If jurors do not understand that the burden is simply more likely than not then they will assume the burden is much higher than this. Jurors will not rule in the plaintiff’s favor unless they are “sure” that the plaintiff is in the right. However this is not the correct standard. Thus it is your job to teach the jurors if you want them to apply the correct legal standard.
If you are going to teach the jurors what this standard means you need to do so as soon possible. If you wait until closing arguments to teach the jurors about what preponderance of the evidence means it will be far too late. Most all jurors have made up their minds prior to closing argument. They will not be able to retroactively go back and filter all the evidence they have already heard through the standard which you now teach them at the end of the case. Thus, as counsel, you need to begin teaching the jurors about the proper standard right away in voire dire. You then want to continue to teach the jurors through each step of the case, including opening statement, direct and cross examination, and closing arguments. You need to be teaching the jurors that they simply need to find that the plaintiff is more likely right than wrong. Jurors can understand this simple principle. However you need to be repeating this simple statement throughout trial. You want this “more likely than not” concept to weave through the entire trial as would any other theme you want to impress upon the jurors. When you first tell jurors about this theme you should place both of your hands in a palm upward position. So that your hands are nearly level with your waist. You then want to raise your left hand just slightly higher than your right hand. In this way you more effectively communicate this important message. Throughout trial, whenever you say the words “more likely right than wrong” use your hands in this way as an example to reinforce this message to the jurors.
While you are teaching this concept in voire dire you can at the same time begin fishing for jurors who you would like to exclude for cause. If you come across jurors who have serious qualms with ruling in your client’s favor using the “more likely right thank wrong” standard then you may want to think about removing these jurors. You have to be delicate in voire dire as always. If you come out and ask the jurors “does anybody have a problem with this more likely right than wrong concept,” you likely won’t get any response or as thorough of a response as you could otherwise achieve. The proper question as always should be “which way do you lean” or “which side are you a little closer to”. So for example you could say, “some people feel that the more likely right than wrong burden is not fair as it makes things too easy for the plaintiff, some people feel that it is fine. Mr. X, which way do you lean?” When you use language such as “which way do you lean” or “which are you a little closer to” you don’t require the juror to polarize him or herself. Additionally, when you say that some people lean this way and some people lean that way you express that either opinion is fine. You want the jurors to feel free to open up without feeling judged that his opinion could be the wrong opinion. When a juror tells you that they lean towards or against the more likely right than wrong standard you need to be following up as always. So, you need to say, “tell me a little bit more about that”, “go on”, “yes, go on”. You want to completely flush out the jurors opinions on why he or she leans one way or the other. Then you can go on and ask if anyone else in the jury pool feels the same. Remember, do not try to convince jurors to change their opinion in voire dire. You want to create an atmosphere of open communication. You will hinder this free speech as soon as you start telling people they are right or wrong.
You can then go further and get the for-cause dismissals by asking jurors what percentage of certainty they would need to decide in the plaintiff’s favor. You can start by asking if they would decide in the plaintiff’s favor if they were less than 90% certain. You can then see if they would still decide in plaintiff’s favor if they were less than 80% certain. If the juror commit to any percentage greater than 51% in order to find for the plaintiff then they are expressing that they cannot follow the law. Once they commit to this percentage go on to ask they why they feel this way. Continue questioning them on this point until they are thoroughly committed to their initial opinion. In this way opposing counsel will not be able to rehabilitate this juror and you will get your for cause dismissal.
At a couple different points during trial, you need to mention that the judge agrees with your definition of more likely right than wrong. The judge will likely go along with this. Then at other times be sure to point out that opposing counsel agrees with this concept of more right than wrong. Remember that the jurors are going to be skeptical of everything coming from your mouth, especially in the earlier parts of the trial, until you build credibility with the jurors. Thus once you let the jurors know that not only does the judge agree with your statement but so does opposing counsel as well then the jurors have no reason to doubt you. Thus acknowledge that both the judge and opposing counsel agree with your “more likely than not” definition.
As I stated earlier you need to be weaving this concept in and out of trial so that this more likely right than wrong is a consistent theme and embraced by all jurors. We discussed how to do this in voire dire. The next step is to further weave this message into your opening statement. To do this you can state what a witness is going to testify to in trial and that such witness will testify that he or she is “more likely right than wrong” as to the certainty of their testimony. Do this a few different times in opening, use your hands and look at the jurors every time you do this and use your hands as scales to demonstrate how slight the burden is over and over again. Then when you get into the case you can use this line of questioning while conducting direct examination. You can ask your expert if he is “more likely right than wrong” as to his opinion on the matter. Of course after he says yes go on to ask him if he is certain to a reasonable degree of medical certainty. You can do this with lay witnesses as well. “Mr. X, you stated that the driver was not looking as he smashed into the other vehicle, are you more likely right than wrong about that assertion”? Again use your hands demonstrating the scales to show the low threshold. You can do the same thing on cross examination though it may take away from the power of your cross depending on your style of cross examination. However a good way to incorporate the phrase is through an objection. You can object and say that the testimony is hearsay or whatever other objection is relevant and thus the jurors cannot use that evidence in deciding whether we are more likely right than wrong.
Once you get to closing argument you will then teach the jurors that this “more likely right than wrong” phrase you have been repeating is the standard for preponderance of the evidence. Wait until closing to tell them about this. If you start telling the jurors about the phrase “preponderance of the evidence” in the early stages of trial you will only confuse the jurors. Better to have them understand the concept first and then you can teach them the legal vocabulary that applies to this concept later, after they have this understanding. Thus, in closing you will need to tie your “more likely right than wrong” statement to the definition of preponderance of the evidence. A good way to do this is to put the jury instruction on a big slide in front of the jury, the slide should defining preponderance of the evidence. Then face the jurors with the slide behind you, while still facing the jurors and tell the jurors “this is just what we have been saying to you all along throughout trial, that plaintiff simply needs to be more right than wrong”. In this way the jurors easily put it all together. Remind them again that the judge and opposing counsel agree with this more likely right than wrong definition.
Finally arm the jurors to defend this proposition in deliberations. Once the jurors go into deliberations you will no longer be able to help them. There will be some jurors who try to take over deliberations and they may argue that they aren’t “convinced” or aren’t “sure” that the plaintiff is right. You need your jurors to be armed to combat these other jurors when they say such things. So teach your favorable jurors how to do this in closing. You can do this by telling your jurors that if anyone in deliberations says that they aren’t “sure” that plaintiff is right or should win that they need to respond by stating that the rule doesn’t require them to be “sure” or “certain”, only that the plaintiff is more likely right than wrong. Further advise your favorable jurors that if another juror won’t accept this more likely right than wrong statement in deliberations that your favorable juror should tell the foreperson to reread the jury instruction out loud or otherwise tell the judge to read the jury instruction to the jurors.
For a much more thorough understanding of this material read any of David Ball or Don Keenan’s books on trial advocacy. These two are true authorities on these subjects and many of these ideas come directly from these gentleman. Most of the information above can be found in David Ball’s book, Damages, which is a terrific book for plaintiff’s lawyers. I have the utmost respect for these gentleman.