I’ve previously written about the subject of how we present our cases to juries. I maintained that betrayal, not mistake, is the essential message for winning negligence cases. See: https://plaintifftriallawyertips.com/betrayal-not-mistake-is-the-essential-message-for-winning-negligence-cases.

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Research has demonstrated that tried correctly, your trial message should be not just to establish the required proof of the negligent act, but to also show the wrong motive or breach of duty for it happening. Gerry Spence at the Trial College advocated proof of betrayal was critical for a great verdict. The Trial College taught that proof of the negligent act is a legal requirement, but the motive or reason for it happening is also an essential requirement for a great verdict. For example, in a malpractice case, the reason why the doctor made the mistake is more important than the fact he or she made a mistake as to jury motivation for a favorable verdict. When we reframe the event from simply a negligent mistake to a betrayal of trust or duty, we motivate the jury to bring in a verdict which punishes the wrongdoing and is intended to deter future wrongdoing.

But, if we tell a story of accident, negligence, and mistake without providing an improper reason for it happening while asking for substantial damages, the jury views us as being greedy. We are seen as asking for too much money where there is only a mistake. Mistakes should be forgiven in the minds of most jurors. On the other hand, if we tell a story about a betrayal of trust and duty resulting in negligence conduct which caused injury to another, we become advocates for the safety and protection of the jurors and their families. Betrayal of duty or breach of trust should be punished in the minds of jurors. In that case, the jurors are motivated to deter future conduct by punishing the wrongdoer

As a result, the facts of the negligence, while required by law, are not what drive large verdicts. Rather it is the ulterior motive or wrong decision and actions behind the action which led to the negligence and caused it to occur that motivates punishment for the actions. Telling the story of what happened without a story of why it happened for the wrong reason is not presenting the case correctly. That’s why in malpractice cases the defense lawyer tries the case focused on the medical issues and not the reasons for it. The plaintiff’s lawyer, however, should be trying the case about a negligent act for ulterior, wrongful motives. It is the malpractice “back story” we should be emphasizing in automobile or any other kind of negligence case. When we do so, it paints the defenses as excuses and attempts to evade personal accountability for betrayal of trust and duty.

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This concept was demonstrated in a jury trial several weeks ago against an airline for failure to provide supervision for a wheelchair passenger in a Seattle jury trial. A woman in a motorized wheelchair was injured when she attempted to take her wheelchair on an airport escalator. In spite of jury instructions which gave the airlines legal protection for not providing promised supervision and in spite of considerable evidence of contributory negligence, there was a multimillion-dollar verdict. The reason was the evidence the woman was mentally disabled  and unable to conduct herself safely without supervision. The family therefore had made careful effort to assure the airline would provide that supervision and she would not be left alone. The family made five separate confirmations with the airlines who promised to provide assistance to the gate, but then failed to do so or notify the family of their failure. The jurors found a serious betrayal of trust irrespective of the evidence of contributory negligence or the law and jury instructions providing legal protections for the airlines.

The process for finding the facts behind the negligent actions which reveal wrongful reasons for the negligent acts starts in discovery. Our emphasis in discovery should not be on not just learning the facts of the negligent act. We should also be searching for the reasons behind the negligence. Why did this happen? Our discovery should recognize that a properly prepared case recognizes a  mere mistake is not sufficient. We need to explore the motive or reason because it is more important than merely proving the mistake itself. We should be looking for evidence of the ulterior motive or reason it happened. That betrayal of trust or duty has to become our main theme from the beginning of the trial to the end of the trial. In trying our case we need to describe it as not just a case for compensating our client. We must present it as a story about the jurors safety as well as their families and the community – “the tribe.” When the tribe feels betrayed it is motivated to make sure they are protected by punishing and to deter.

Here are some suggestions as an example of discovery regarding the possible wrong reasons for what happened:

  1. Were there policies or procedures which were ignored or done incorrectly?

(1)  What were they

(2)  Were they considered

(3)  Why weren’t they followed

(4)  What would have been the difference if followed?

(5) What advantages might there be for the defendant to have deliberately ignored them or done them incorrectly?

(6)  What are the possible explanations for defendant’s actions

2.   Were there other ways of doing what or what was no done that resulted injury?

(1)  What were they?

(2)  What were the pros and cons of doing each

(3)  Were they considered?  Why

(4)  Why weren’t they done?

  (5)   What advantages might there be for the defendant to have deliberately ignored them or done them incorrectly?

 (6)   What are the possible explanations for defendant’s actions?

  • What are the full background details leading up to the injury causing activity?
  • Time available & demands on time factors
  • Money factors
  • Training & qualification factors
  • Surrounding circumstances

      (a)        Chronology of event

      (b)        Demands on time & time available

      (c)        Culture at hospital or with doctor

      (d)        Doctor or nurse attitudes about situation or roles

      (e)        Role of people involved

      (f)         Ego factors

     (g)        Fear factors – cover up, lawsuit

Our discovery should be focused on discovering and framing the improper motives or reasons. For example: “The Defendant knew of the danger, and they hid it and as a result of hiding it, there was injury. The company didn’t buy the safety equipment because they were trying to save money.” Or “the surgeon had only done the surgery two times before, but didn’t disclose it in order to get the patient consent to the surgery and he wanted the practice plus the fee.”

In addition to betrayal as to a motivator to punish, research has indicated that there is a similar motivation from evidence of a serious injustice or unfairness. Dr. Ken Broda-Bahm is a jury consultant who writes a very helpful blog Persuasive Litigator. He has recently written about both injustice and deterrence as an additional motivation for punishment..  He cites the publication Conversation for studies involving the urge to punish because of perceived unfairness: https://theconversation.com/the-urge-to-punish-is-not-only-about-revenge-unfairness-can-unleash-it-too-145990. This publication concluded that in addition to betrayal, unfairness motivates punishment too:

“…unfairness alone is upsetting – upsetting enough to drive people to punish those who have benefited from unfair outcomes…This finding suggests punishment likely evolved for different uses – deterrence as well as leveling the playing field – showcasing how one behavior can serve different functions. “

While examining the reasons and motives for negligent conduct, don’t overlook evidence of unfairness and inequitable facts.


We need to pay attention to facts behind the reason for negligence as well as the facts about the  negligent event itself. A trial is in reality a moral trial of right and wrong. Jurors want to do the right thing for the right reason. In wanting to do the right thing, the jurors are focused on more than just compensating an injured client. They want their verdict to mean something important. They are also motivated by personal self interest. As a result they form impressions about the reasons behind the events. We should present our cases as setting community standards of conduct. As the great trial lawyer Moe Levine argued to the jurors in a store premises injury case: “You tell all the people in this town who run stores of this kind what you expect their conduct to be. Because you, the voices of the conscience of this community, will determine what the standard is.”

Try your case as a betrayal of duty or trust and not merely a negligence case. Motivate the jury to find in favor of your client as setting the standards for themselves and the community and deterrence of wrong acts leading to harm.

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