In conducting nearly one thousand jury focus groups over the last decade, I
have helped both our firm and other lawyers who consult with me improve
personal injury cases. These focus groups have helped me to become a better
advocate for my own clients. Along the way, I have learned that juries care a lot
about things that do not have anything to do with the law read to them by the
Issue 4: Burden of Proof
In a criminal case, a jury can only convict a defendant if the prosecution has
proven guilt “beyond a reasonable doubt”. Many do not know that the standard
in a civil case is different; in a civil case (generally), a plaintiff must only prove
the elements of their case by a “perponderance of the evidence.”
The “perponderance” standard really just means “more likely than not.” So in a
personal injury case, the judge will instruct the jury that they need only find that
the defendant was more likely than not negligent, and that the plaintiff’s injuries
were more likely than not caused by the defendant’s negligence.
In my experience, focus group participants have do not buy into the
“perponderance” standard as readily as most plaintiff’s lawyers would like.
Regardless of how well refined and reasoned a plaintiff’s lawyer argues their
case, most jurors are simply not going to award a significant amount of money
just because they believe that 50.00001% of fault lies at the feet of a defendant.
To combat this concern, I frame the negligence of a defendant as a conscious
choice rather than mere neglect. A distracted driver did not make an “accident”
by looking down at the radio; instead, they made a conscious choice to look
away from the road in front of them.