At Home, But Not Alone, Brushstrokes #41

There are two overlapping psychological forces that can wreak havoc in your cases and result in  heavy comparative fault being placed on your clients. They are locus of control and negative  attribution bias. Both deal with people who make themselves feel safe in a dangerous world by  thinking bad things won’t happen to them because they are so careful. I call it the “super juror”  problem. Super jurors will be quick to blame your client for tripping in a premises case, for not  slamming on their brakes sooner in a car crash case, or for not getting a second opinion in a  medical malpractice case. Here is a process for dealing with this very real threat to justice.  

Voir Dire Questions 

There are various levels of care. Some people are careless. Most people use reasonable care. A  few people use extra-extra care (extraordinary care). I will assume none of you are careless.  How many of you are in the reasonable care category? How many of you are in the extra-extra  care category? 

For each of the panelists who are in the extra- extra care category, ask:  

Do you have friends or loved ones who are not at the same exceptional level of care as you, but  certainly use reasonable care? Do you think less of them for that, or do you understand not  everyone is as ultra-careful as you and that doesn’t make them careless? 

Under the law, the standard here in court is reasonable care, not extraordinary care. Having  said that, it can be hard not to judge others through the same lens which you judge yourself. It is  easy to unintentionally end up raising the bar up to your level of extraordinary care. Do you see  what I’m getting at? Are you likely to end up raising the bar to more than reasonable care, in  spite of your best efforts not to do that? 

[Move for cause on those who will end up raising the bar higher than reasonable care.] 

For the ones that say they can hold fast to reasonable care, ask:  

Can you assure the court that you will hold steady to the reasonable care standard for your  judgement in this case, and not judge things through your personal over and above, ultra careful level of care? Can you start out on guard and stay on guard at all times to avoid raising  the bar above the reasonable care level? 

Opening and Closing 

Frame comparative fault this way:  

When the defense tries to pass blame off on Ms. Jones, remember, it is their burden of proof. It  is not enough to say my Ms. Jones could have done something differently. It is not enough to say someone else would have done something differently (this part is for the super juror). It is only  enough if they prove Ms. Jones did something wrong, something unreasonable.  [Then, remind the jury of their promises made in jury selection.]