The November 2024 King County Bar Bulletin had an article by jury consultants Thomas O’Toole and Kevin Boally dealing with the issue of causation and its importance in obtaining a plaintiff verdict. It was a subject I have written and lectured about to lawyers. Causation is often ignored or under emphasized by plaintiff attorneys.

Too often plaintiffs proceed with the frame of mind that if they prove the harmful conduct they will receive a favorable verdict. This is consistent with most juror’s attitude as well. They often assume if something negligent was done, the culprit should pay the price. However, when a skilled defense attorney minimizes defending negligence and emphasizes the legal requirement of negligence causing the harm a defense verdict can be the result. The reality is that a jury, following the jury instructions can find significant negligent conduct they object to, but conclude it did not cause the harm plaintiff is complaining about. A negligent defendant may conclude it is more profitable to not make the major defense negligence, but causation. A plaintiff should, in every case, emphasize causation as much as negligence. Here are some thoughts about doing that

There is a distinct connection of thought between evidence of cause and circumstantial evidence. See:

Washington Pattern Jury Instruction 21.01 Meaning of Burden of Proof—Preponderance of the Evidence

When it is said that a party has the burden of proof on any proposition, or that any proposition must be proved by a preponderance of the evidence, or the expression “if you find” is used, it means that you must be persuaded, considering all the evidence in the case [bearing on the question], that the proposition on which that party has the burden of proof is more probably true than not true.

Washington Pattern Jury Instruction 1.03 Direct and Circumstantial Evidence

The evidence that has been presented to you may be either direct or circumstantial. The term “direct evidence” refers to evidence that is given by a witness who has directly perceived something at issue in this case. The term “circumstantial evidence” refers to evidence from which, based on your common sense and experience, you may reasonably infer something that is at issue in this case.

Causation should be talked about in jury selection. Instead of treating the issue lightly, focus on it at the beginning of the trial. Consider using the David Ball technique of providing ideas in jury selection. For example: The jury took an oath to follow the law whether they liked it or not, “so, if someone in the jury room says ‘I just have some doubts the cause of infection” remind them of their oath to follow the law, which is: “ If you think it is more likely than not it was the cause, even if you have doubts, you are obligated to follow the law given by the judge.”

Remind the jury in jury selection, opening statement, witness testimony and in final argument the law only requires proof that something is more likely than not. Remind them the law does not distinguish between direct and circumstantial evidence in terms of the weight or value in finding the facts in the case to support causation One is not necessarily more or less valuable than the other. Use examples to emphasize this fact. In the study of logic, the principle of “Ockham’s Razor” is applied. William of Ockham was a Franciscan monk who wrote about logic in the 14th century. He is famous for a principle of logic commonly known as “Occam’s Razor.” Simply stated this principle of logic stands for the proposition that where there are multiple explanations for something, the simplest explanation is the most likely the correct one. As a scientific rule, it stands for the proposition that where there are competing theories the more complicated explanations offered are the less likely the correct one, because the simplest explanation is most frequently the accurate one.

In medicine the same principle applies when dealing with the diagnosis of the cause of illness. This principle is labeled “Zebra medicine.” It refers to a an idea by the late 1940s by Dr. Theodore Woodward at the University of Maryland school of medicine. He taught his medical interns that in diagnosing conditions think of the most obvious explanation first because in diagnoses “when you hear hoof beats, think of horses, not zebras.”

Consider metaphors and examples supporting these concepts as they apply to strength of circumstantial evidence. For example, Amos n’ Andy was one of the most popular and long-running radio programs of all time in the 1930’s as a comedy radio series. One broadcast applied the logic of circumstantial evidence. The two leading characters were discussing whether someone they were looking for had left town or not. When they discovered the person had picked up a road map at a gas station, Andy said to Amos “Look, you don’t get a road map unless you are going somewhere.” The circumstantial evidence was all they needed to know what had happened.

Another illustration is Robinson Crusoe, Daniel Defoe’s 1719 novel. Robinson Crusoe, is shipwrecked on a desert island and believes he is the only person on the island. One day while walking on the sandy beach he sees human footprints in the sand. He is so shocked at the discovery he faints. He faints because he knows there is someone else on the island. Yet he hasn’t seen anyone. He hasn’t heard anyone. All he has is circumstantial evidence and yet he knows with certainty someone else is on the island.

One of Aesop fables is about the lion who announced that he was sick and invited the animals to hear his last will and testament. They came one by one into his den to comfort him. The lion saw that the Fox was standing a distance away and not going into the cave. He asked the fox why and the fox replied: “I noticed that there are many prints of animals entering your cave, but I don’t see a trace of any coming out.” The circumstantial evidence told the true story.

Using causation as a defense, the defense may argue that an event like the one claimed by plaintiff causing injury was rare or if had never happened before. Therefore, it is unlikely the claimed negligence ever happened or could not have been anticipated. To begin with there are many real-world examples of things happening against the odds of occurrence. One happened in June of 2000 when a fan at a Kansas City Royals game was hit by a bullet apparently fired from outside the stadium where some 30,000 were watching a game. The odds of being shot by a random bullet firing were remote and to be one of 30,000 people hit by it even more remote. But it did happen, and a fan was injured. On August 15, 1992, two Australian tourists were killed while hiking in the Alps when a WW One bomb went off when one of them accidently hit it with an ice ax while climbing. The odds of that happening were exceedingly small, but it did occur. Remote odds of harmful conduct do not prove a lack of causation.

The fact that previous incidents of harm was rare or had not happened before, is not a defense where the risk of the harm was foreseeable. The likelihood of harm may be inherent in the condition and is well within the realm of reasonable foreseeability for which there is responsibility to prevent the harm from happening. A defendant is not entitled to wait until the first harm is done before having a duty to act when it is a reasonably foreseeable serious risk of harm. It’s a not “three strikes and you are out” rule of safe conduct. The probability of harm coupled with the gravity of harm makes something an unreasonable risk even before harm actually occurs. Consider Russian roulette involving a revolver with one bullet in six chambers. Spinning the chamber and firing involves only a one out of six chance of firing a bullet. Or consider the odds of winning the lottery which involves one chance in millions of winning the grand prize. In fact, there can be one winner out of millions. Not all risks are equal and it’s necessary to evaluate the consequences if something does happen. The number of instances of actual harm is not a defense against negligence causing injury. Let’s remember the proverbs: “:Ounce of prevention worth a pound of cure” and “It’s better to be safe than sorry.”

The defense claim, “It never hurt anyone before is like a careless driver who has a lot of close calls, and finally causes an accident and says, “But I’ve never had an accident until now.” Thousands of highway deaths and injuries are caused by drivers who never hurt anyone before. Sooner or later every caress driver is going to claim a victim. The law doesn’t care how many times it happened before where there is a known danger and a failure to fix it.

CONCLUSION
Remember the importance of proving not only negligent conduct, but that the conduct was the cause of the harm done. Review the law with the jury that proof of causation is only to show it is more likely true than not true. Emphasize the jury instruction on the issue. Consider a PowerPoint with “Burden of Proof” at top. It could be scales. One tipped 100% another 75% and another 51% At bottom, the proof required is more likely than not. Use language from instruction Or create one with graphs in different colors. One 100% filled to top, one 75% and one 51%. Give some thought and planning to this important subject in your trials.