By Dr. Ken Broda Bahm:
There is a persistent belief among many mock jurors that I have seen in certain kinds of cases. The belief is that liability attaches automatically to possession, and jurors usually express it through the lens of home ownership. As one individual shared at a mock trial last week, “It is my house, so if an injury or something bad happens in my house, it is my responsibility, automatically. That’s the law — my house, my responsibility.” Now, I’m no premises-liability expert, but that sounds like an oversimplification to me. But in that mock trial, the juror I quote led his jury to a unanimous decision on liability — a decision that overrode the jury instructions which focused on the need to prove negligence. Instead the group treated liability as automatic based on ownership.
The problem in this case is not limited to home premises liability cases. More generally, a belief that liability attaches automatically to a specific location or role can have the effect of transforming other civil disputes from negligence to strict liability cases. For example, I once had a medical negligence case where one mock juror exclaimed, “Of course the hospital is liable… that’s where it happened.” Beyond the idea of a physical building, there is also a tendency to attach responsibility to a more abstract view of a party’s vicinity or “turf,” as in the sentiment, “It happened on your watch, so…” In this post, I will share some thoughts on ways to deal with this belief, and ways to talk jurors out of it when it doesn’t apply.
Investigate It in Pretrial Research
It is tempting to assume that jurors will simply follow the instructions. In their own minds, they’ll want to think the same thing, and will usually believe that they are following the instructions. But instead, they’ll be filtering the law through their own experiences. They will use their own intuitions about what the law is, or should be. So it helps to see how that filtering process might work in the context of your case. It’s a good reason to conduct a focus group or a mock trial.
Cover It in Voir Dire
When you represent a party that could be left holding the bag simply due to ownership or role, then you will want to identify the higher-risk jurors who might treat liability as automatic, while at the same time sending the message that this isn’t the way the law works. For example?
Who has heard of the idea that, if an injury happens in your house, then you’re responsible, automatically?
And who feels like that is a good idea, like that is the way the law should be?
And who disagrees with that? Why?
If I told you that the law doesn’t work that way, and that in this case specifically, responsibility is based on negligence, if any, and isn’t applied automatically, would anyone have trouble with that? In other words, would anyone still feel even a subtle pull toward the idea that the owner should be the one to take responsibility?
Pre-Instruct If You Can
One significant flaw in our system is that jurors often don’t hear the full explanation of what the law is until after the evidence is in and after they have formed durable impressions of who is at fault. So, if you can, ask for instructions at the beginning of the case, particularly on the central standards that jurors will be applying. That pre-instruction will help jurors understand the meaning and the importance of evidence as it comes in.
Teach Your Jurors
With or without pre-instruction, you will want to use your opportunities in opening statement and closing argument to make the legal standard as clear as possible. Focus not only on the ‘what,’ but also on the ‘why’ as well. In a case where jurors might be tempted to substitute a presumed strict liability for negligence, make sure to tell them that it doesn’t work that way, and give them the reason for that.
In this case, the question — the only question — is not who owns the place. And the question isn’t who was on the job that day. The only question is whether anyone was negligent and failed to take ordinary care. The law creates that standard and does so for a good reason: Because that reserves the significant penalties of civil law for those uncommon situations where someone has failed to take reasonable care. That’s the standard you are being asked to apply, and that standard is not met in this case.
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Other Posts on Juror Misperception:
- Don’t Fret, Your Jury Can Handle Some Complexity
- Treat Body Language as Unproven, Yet Trusted
- Don’t Fool Yourself on the Advantages of Intelligence