“If you end up saying to yourself, I just don’t know, but it might be, then we’ve met our burden.” While I’ve listened to both plaintiff and defense attorneys frame their take on the burden of proof for years, this one made me go “hmmmm.” While the feather on the scale and the claim that you only need to be one tiny decimal point above 50% to vote for the plaintiff are tried and true plaintiff framing devices, this one struck me differently. I realized it was the additional phrase, “I just don’t know.” If you stop at that point, wouldn’t one conclude that the plaintiff has not met their burden? If “it might be,” isn’t it just as true that “it might not be”?
Responding to plaintiff’s portrayals of the burden of proof is a must. Letting a phrase like that stand without providing an alternative view of the burden is ceding ground the defense should never cede.
A typical defense reframing is to point out that the defense does not “have to prove anything” – that “it’s not our burden.” There are three problems with this being the defense’s primary response:
1. It is defensive. While this is completely true and the jury instructions back you up, jurors hear something akin to a school yard bully when confronted with wrongdoing saying “Oh yeah….you can’t prove it!” When someone is told “You can’t prove it,” it can be taken as a dare and the person is psychologically motivated to go ahead and prove it.
2. It is weak. Jurors can also hear: “We give up” or “We don’t have the goods.” It essentially diminishes all the evidence the defense did present; all the arguments that were made to show why plaintiff’s case is weak. While the defense thinks this is putting a spotlight on what the plaintiff did not do, it also puts a spotlight on what the plaintiff did While the message is intended to say that no response is needed because the plaintiff’s evidence is weak, instead it insinuates that the defense position is weak.
3. It is contradictory. The defense has just spent several hours, days, or even weeks presenting witnesses and testimony designed to persuade jurors that the defense position is correct and/or that the plaintiff position is weak. To argue after all of that, “We don’t have to prove anything” is confusing. Jurors think, “What? You just spent countless hours proving to me X and Y, and now you’re saying you don’t have to prove anything?” It’s nonsensical. Yes, lawyers get it and judges get it, but in the real world, in an argument, both sides duke it out and in the end, one side has “proven” their case. No matter how strongly you tell (most) jurors that “We don’t have to prove anything,” there will still be a part of their brain that is looking for how both sides proved their case.
So what can you do? Deconstruct or operationalize what the burden of proof means. A reframing strategy we suggest can be advanced through several different analogies (i.e., a game, a race, a bank account, a gas tank, building blocks, stairway), with the primary goal being to get jurors to think about the burden as one where the plaintiff starts at 0 or on empty. As evidence and testimony comes in, the plaintiff might take a step forward, maybe another step, then another. But as the defense counters, the plaintiff might have to take a step back, then another. A critical component of this framing is that it positions the plaintiff at 0% not the 50%/50% that plaintiff often likes to use – hence the “We only need to add .0000001 and we win.” It is much more difficult to provide enough evidence and testimony to reach the 50+% threshold than to suggest that one only needs to add a decimal point.
Additionally, it gives the defense an opportunity to directly reinforce how its witnesses and evidence effectively countered (knocked out) the plaintiffs. The response does not insinuate that the defense has no role to play or that its witnesses do not matter; it says what we said mattered and here’s why. It both arms and motivates jurors to look at all the evidence and weigh the strength of each piece, asking along the way, “Did plaintiff prove this was true so we can add it to the pile? Did they prove this was true before we add it to the pile?” And so on. The burden does not apply to plaintiffs’ entire case – it applies to each argument that was advanced, so each argument deserves scrutiny.
Bottom line, jurors need a direct refutation of plaintiff’s characterization and need instructions on why and how to apply the burden of proof. Relying on the jury instructions or a simple “Not our burden” response is overlooking a great opportunity to reinforce all the strong arguments the defense presented.