In Brushstrokes #21, I laid out trial strategies for dealing with negative attribution bias, jurors who feel they can protect themselves from dangers because they are super careful. Those jurors are prone to blame plaintiffs for not protecting themselves better. It is such a common and challenging problem I wanted to supplement my ideas with suggested voir dire questions.
Voir dire Qs
I want to ask you about something called a comparative fault affirmative defense. The basic idea is the person/ company being sued in a lawsuit can try to blame the person hurt for causing their own injuries. They ask the jury to put a percentage of fault, or even all the fault, on the person bringing the lawsuit.
In that situation, the defendant has the burden of proof. For example, if a defendant ran a red light and pulled out in front of someone, the defense could try to criticize the injured person’s reaction saying he or she should have swerved instead of hitting their brakes in an effort to avoid the crash. In that example, it would not be enough for the defense to prove the plaintiff could have done something different. It would not be enough to prove others would have done something different. It is only enough if they prove the person hurt did something wrong, that they did something unreasonable, under the circumstances.
I say “under the circumstances” because, otherwise, we would be doing what’s referred to as “Monday morning quarterbacking”, which is second guessing after knowing the outcome, and that is not a fair way to judge things as they unfold in real-time. It’s okay to do it at home watching a football game, it’s not okay in a court of law.
Different people react differently to dangers thrown in their path. Some people are fortunate to have exceptional skills in how they react to dangerous circumstances, they react with near perfection, they’re just wired that way. How many of you fall into that extraordinary category of having near perfect reactions to unexpected dangers? (For each hand, ask the following questions.)
When you have that rare skill set it can be hard not to hold others to your personal standard of near perfection when judging how they reacted. The problem is that can, unintentionally, lead to lowering the defendant’s burden of proof below what the law requires. In order to pass blame on to Ms. Jones, the defense is required to show she did something wrong, that she acted unreasonable. It’s not enough to say she didn’t act with near perfection as someone else might who is wired like you. Can you see how it could be hard to keep that personal, near perfect standard from becoming the measuring stick? The conflict occurs because the law applies a more universal standard of what others would do who do not necessarily possess your unique abilities. It’s called reasonable care.
I’m going to ask you to think about it, knowing how your mind works, and tell us how many of you will probably end up applying your personal standard of near perfection, in spite of your best efforts to set that aside and follow the law that applies a reasonable person standard?
[Depending on your level of concern for heavy-handed rehab efforts, you may want to read the standard jury instruction defining reasonable care and ask: So, would it be fair to say, while you would not intentionally ignore the law, you cannot assure the court that you can follow it, because of the way you are wired?]
[For all of those who say they can put their special talents aside, ask the following questions.]
Are you positive you can judge Ms. Jones reactions to a dangerous condition by the reasonable care expected of others under the circumstance, rather than your personal standard of near perfection? Can you promise to be on guard every day of the trial to make sure you don’t let that personal standard of near perfection creep back into play, unintentionally?
Closing - Keeping Promises
Reinforce this framework in opening. Then, bring it home in closing with something like this: We are talking about Ms. Jones’ reaction to a sudden, unexpected emergency thrown in her path by the defendant. The defense is trying to pass the blame onto Ms. Jones by picking at her reactions after the fact. They are asking you to be a Monday morning quarterback. The law does not hold Ms. Jones to a standard of near perfection. It is not enough for the defense to prove she could have done something different, or that others would have done something different. The defense has to prove Ms. Jones did something wrong, that she acted unreasonably under the circumstances, as things were unfolding real-time. We talked about this during jury selection. Everyone on this jury gave their word, their oath, that they would not give the defense a free pass on their burden of proof by applying a personal standard of near perfection. We took you on your word and on your oath. We are at peace you meant it and will return a verdict that recognizes Ms. Jones did nothing wrong or unreasonable.