Tag Archives: cause challenge

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