Too often plaintiff lawyers totally focus on liability in evaluating and trial of their case. But, often the most vulnerable part of the case is connecting liability to the fault of the defendant. The defense very often relies on lack of causation as the main defense issue. This is particularly true in medical negligence cases and major damage cases. In fact, some plaintiff lawyers believe in offering proof of causation as the first evidence they present in their case, before offering liability proof. What follows is a collection of ideas and suggestions about this issue. We begin with the Washington Jury Pattern Instructions on the issue of causation.
WPI 21.03 Burden of Proof on the Issues. The plaintiff has the burden of proving each of the following propositions: First, that the defendant acted, or failed to act, in one of the ways claimed by the plaintiff and that in so acting or failing to act, the defendant was negligent; Second, that [the plaintiff was injured] Third, that the negligence of the defendant was a proximate cause of [the injury to the plaintiff
WPI 15.01 Proximate Cause The term “proximate cause” means a cause which in a direct sequence produces the [injury] [event] complained of and without which such [injury] [event] would not have happened.[There may be more than one proximate cause of an [injury] [event].]
WPI 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.
WPI 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. The law does not distinguish between direct and circumstantial evidence in terms of their weight or value in finding the facts in this case. One is not necessarily more or less valuable than the other.
There are accepted views about proof generally used professionally and scientifically:
• Ockham’s Razor William of Ockham was a Franciscan monk who studied 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 is the most likely one. Another way of expressing this idea is by saying that the more assumptions you have to make to arrive at an explanation, the more unlikely the explanation is. As a scientific rule it stands for the proposition that where there are competing theories the more complicated the explanation the more unlikely it is accurate.
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• Zebra medicine “Zebra” is an American medical slang word used when an exotic medical diagnosis is made where there is a more simple, commonplace explanation that is more likely the right diagnosis. The phrase was coined in the late 1940s by Dr. Theodore Woodward at the University of Maryland school of medicine. It’s based upon his instruction to his medical interns: “when you hear hoofbeats, think of horses, not zebras.” The phrase is widely used in medical circles.
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TRIAL SUGGESTIONS
From a jury perspective, because of TV crime programs with DNA clear proof many people have an inherent bias that there has to be conclusive scientific proof before it can be accepted. In addition, their are scientifically trained jurors. These jurors don’t ;accept something has been proven until it is scientifically certain. They are really resistant to the idea of it being sufficient that it is “more likely true than not” for a verdict. Here are some general thoughts about this subject.
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1.Circumstantial evidence and burden of proof in civil cases are twins connected at the hip. If you get an opportunity try to weave some of these ideas into case in examination of a witness along with fact scientific proof is not required in this case.
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2.Remember, in epidemiology the burden of proof is 95% and there are jurors who require that degree of proof. Make it clear the jury instructions are the law.
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3.Create 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%. Use it in argument.
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4.Blow up or have the burden of proof instruction made into a slide. Have in big letters on it: “The plaintiff only has the burden of proof that you must be persuaded, considering all the evidence in the case bearing on the question, that the proposition is more probably true than not true.”
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5.Instead of treating the issue lightly, focus on it at the beginning of argument. Use the Ball technique of providing arguments to those jurors on your side. Remind the jury they took an oath to follow law whether they liked it or not. Offer ideas like:, “so, if someone in the jury room says ‘I just have some doubts the scope was the cause of infection even if is more likely than not true’ remind them of this instruction and their oat to follow the law. If you think it is probably the cause, even if you have doubts, then you are obligated to follow the law given by the judge.”
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ARGUMENTS ON CAUSATION
• Causation in the Courtroom Causation in law is not the same as causation in epidemiology, and the law had to deal with the causation issue long before the field of epidemiology existed. Most scientific journals require epidemiologists to prove their causation hypotheses at the 95% confidence level for publication. This could be compared to the criminal law standard of proof of beyond a reasonable doubt. But the civil standard of proof in product liability cases is preponderance of the evidence (i.e., more likely than not). The goal in the courtroom is not to determine ultimate “truth” but rather to resolve a dispute between 2 adversaries
ARGUMENTS REGARDING CIRCUMSTANTIAL EVIDENCE
The Cat and the Mouse. Is it possible for a person to reasonably conclude there was negligence or determine the cause of harm with nothing more than circumstantial evidence? Certainly. Imagine a simple situation. You have a cat and a mouse and a big cardboard box. First, you put the cat in the box. Then you put the mouse in the box with the cat. Then you put the lid on the box and tie it tight with a string so neither can get out. You leave the room for half an hour and come back to check. You take the lid off and look inside. There’s the cat, but no mouse. You can safely conclude that the cat ate the mouse. You didn’t see it happen. There were no eyewitnesses. But you know beyond any reasonable doubt what happened to that mouse.
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•Footprints in the sand In Daniel Defoe’s 1719 novel Robinson Crusoe, he is shipwrecked on a desert island and believes he is the only one on the island. One day while walking on the sandy beach he finds human footprints and he faints from the shock. 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 is has is the circumstantial evidence of footprints in the sand yet he knows with certainty someone else is on the island.
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•Aesop Fables the lion King announced that he was sick and invited the animals to hear his last will and testament. The beast expressed their sorrow and came one by one to the den. The Fox however stood a distance away and when the lion asked why he was not coming into the cave said: “I noticed that there are many prints of animals entering your cave, but I don’t see a trace of any coming out.”
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•Footprints in the snow You get up one morning and there is snow on the ground. You open the door and find a newspaper on the porch and footprints leading to the sidewalk. You can be confident the paperboy has been there and delivered your paper. You didn’t see him. You didn’t hear him. There is no one around, but you know from the circumstances what the truth is.
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•Rope analogy Circumstantial evidence is not like a chain where a broken link breaks the chain. It is like a rope made up of many strands which together give it strength. Even if one strand breaks the rope remains strong and unbroken. The strength of the rope lies in the many strands which make it up and give it strength.
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•The old radio program of Amos and Andy involved a broadcast where the plot involved a question of circumstantial evidence. They were arguing about whether someone they were looking for had left town. When they learned he had bought a roadmap, Andy said “you don’t buy a roadmap unless you’re going somewhere.”
In conclusion, remember you can proof liability and damages, but still lose because you didn’t proof causation.
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