By Melissa M. Gomez
Special to the Legal
I recently wrote a column about whether or not jurors understand the burden of proof. The punch line: I believe, from a conceptual standpoint, they do. That said, there is one thing jurors tend to do that does not comport with the law in civil cases: understand who exactly holds the burden.
Several cases in which I have conducted either mock trials or post trial interviews involved defendants who produced experts to provide alternative theories regarding why an injury, fire or accident had occurred. Viola! These defendants gave themselves a burden to prove those alternative theories, and jurors held them to it.
Am I saying that presenting alternative liability theories is a bad idea for defendants? Absolutely not. In several of those cases, the alternative theories were winning arguments. What I am saying is that when those alternative defenses fall through, jurors tend to be more critical of the defense. For example, in one case, the defense’s alternative causation expert admitted that he could not say with certainty that his theory was the cause of the damage. Jurors later attributed the defense’s failure to prove the alternative theory as the driving force for a verdict decision in favor of the plaintiff.
As a defendant, if you are going to present an alternative theory, it is critical to be confident enough in that theory and the evidence that supports it to place a burden of proof on your case. You have just turned the case from “The plaintiff can’t prove” to “The defense can prove.” These are two very different strategies, and you must choose wisely between them.
Have I ever advised defense clients to go down a path that puts such a burden on their case? Sure I have, and I am sure I will again. When the alternative causation theory is clear and grounded in reliable evidence, I say go for it. It gives jurors more satisfaction to base a decision on something they can point to confidently. They feel better when they can say, “This caused the damage.”
On the other hand, there are cases in which the attack should simply be the plaintiff's inability to prove its case, thus highlighting the legal burden for what it really is. When this is the strategy, alternative theories can be presented, but more in the context of arguing that multiple things could have caused the damage, but there is no way to know what did cause the damage. Therefore, the plaintiff cannot prove.
While not as ideal for a defendant as having a strong alternative causation theory, sometimes this tactic works more effectively than setting yourself up to talk out of both sides of your mouth. Namely, it is not a good strategy to argue that the plaintiff is setting forth a theory it can’t prove by setting forth a theory you can’t prove either.
Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She can be reached at melissa@mmgjury.com or 215-292-7956.
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