By 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.
First, absent counterclaims or some equivalent, the plaintiff carries the burden of proof. The defense does not carry an equivalent burden. Consequently, at the start of trial, the plaintiff and defense are not technically starting in the same place or “even.” The plaintiff must prove something by a preponderance of the evidence or the jurors should find for the defense. The defense does not need to prove anything. This means there is an inherent presumption in favor of the defense at the start of the trial until the plaintiff proves their claims. In fact, taken to an extreme, a venire member who says he or she would tend to favor the defense before hearing any of the evidence is voicing an opinion that is technically consistent with trial procedures. Yet such a comment most frequently results in that venire member being removed from the panel. To take it to the extreme again, one could theoretically argue that such instances actually create bias in favor of the plaintiff by removing venire members who hold views that are consistent with the reality of the plaintiff’s burden of proof.
Second, the plaintiff can benefit significantly from confusion over the burden of proof. In fact, it is common for plaintiffs to minimize their burden. This becomes particularly dangerous when combined with the “start off on the same foot” speech. The inaccurate explanation in voir dire of equal starting points combined with the common explanation that a preponderance of the evidence means the plaintiff just needs to tip the scales slightly in its favor can result in perceptions that the plaintiff’s burden is not as great as it actually is. In other words, if both parties start off even (visualize the hand gestures of an even scale), and the plaintiff only needs to tip the scale slightly in its favor, then it would seem there is little the plaintiff needs to prove.
Let’s look at it another way by using percentages. The common voir dire speech about “starting off on the same foot” creates an impression of a 50/50 starting point at the beginning of trial. Coupled with the theory of just needing to tip the scales slightly, jurors can get confused into believing that the plaintiff only needs to get from 50 to 51 when the reality is that the plaintiff needs to get from 0 to 51.
The difficult is translating this theoretically discussion to something practical. I see three practical ways this can be addressed at trial.
1. Raise the issue with the judge in advance of voir dire and tell the judge you would prefer the plaintiff refrain from using language such as the previously noted because it inaccurately reflects the plaintiff’s position in the trial.
2. Offer a speaking objecting during voir dire indicating that the plaintiff’s attorney is misrepresenting his or her burden of proof. While I strongly discourage using voir dire time to “sell your case,” this may be a rare exception where it can be helpful to prime jurors on the plaintiff’s burden of proof, particularly since the misinformation has already been provided by the other side.
3. There is a simple graphic that can be used to address this confusion in opening or closing. Using the percentages explanation I previously provided, defense attorneys should develop a two-part graphic. The first part should visually represent what the plaintiff would have the jurors believe (i.e. that each side starts at 50) and the second part should reflect the fact that the plaintiff actually starts at 0.
