Monthly Archives: December 2013

Voir Dire and Plaintiff’s Attempts to Create Confusion Over the Burden of Proof

Scales-of-Justice-01By Thomas M. O’Toole, Ph.D.

A nearly universal component of building a cause challenge in voir dire is some variation of the speech about how each party should “start off on the same foot.” The attorney developing the challenge often accompanies this explanation with hand gestures mimicking an evenly-balanced scale. If the venire member admits the scales are uneven or that one party starts off “just a little bit ahead,” it’s often enough to convince the judge to remove him or her for cause (although some judges will shame the venire member into saying he or she can be fair and follow the law).

I’ve always been troubled by this speech. It does not seem to accurately reflect the actual position of each party at the start of the trial and can create confusion (that benefits the plaintiff) over the burden of proof in civil trials. Continue reading

Alternatives to Your Alternative Damages Presentation

pile of money

By Thomas M. O’Toole, Ph.D.

            “I wouldn’t be doing my job as an attorney unless I addressed this next subject. It’s a tricky subject and defense attorneys like me always struggle to find the best way to talk about it. We clearly screwed up. Otherwise, we wouldn’t be offering an alternative damage figure. And by offering this alternative damage number, we are suggesting that this is the absolute minimum you should award to the plaintiff after you find us liable. Again, I’m just doing my job here. I don’t intend to suggest we believe we’re liable even though that’s essentially what I just told you.”

Word it however you like, but this is essentially what jurors hear when it comes to your presentation of alternative damage figures. Defense attorneys have struggled to find effective ways to counter plaintiff’s damage figures without appearing to implicitly admit liability. The struggle often results in failure.

This struggle involves two competing issues. On the one hand, every attorney can cite a horror story, whether their own or a popular urban legend, about a jury awarding a large damage figure because no alternative to the plaintiff’s proposed figure was offered. On the other hand, research overwhelmingly supports the “anchoring effect,” in which the defense’s alternative damage figure establishes the absolute minimum the jury is willing to award the plaintiff. Continue reading