Get the Jury Used to Preponderance of the Evidence BEFORE Closing Arguments
Preponderance of the evidence. Is it more likely than not. On a 50/50 basis, does it tip the scale one way or another. That’s a much better standard than the criminal standard of beyond a reasonable doubt. But how do you get the jurors to decide a case on the preponderance of the evidence?
In general, people don’t think that way and they don’t decide cases that way.
David Ball suggests working the standard throughout the trial, from the Opening, through questioning and into the Closing. Here’s how it works:Fact Witness
Q: Would you say it is more likely than not that Mr. Smith ran the red light?
Q: In fact would you say you were positive that Mr. Smith ran the red light?
Treating Physician
Q: Doctor. The conclusion you just gave, you’re more likely right than wrong?
Q. And beyond that, is that your conclusion to a reasonable degree of medical certainty?
Q. And by reasonable degree of medical certainty, you mean certainty based on reason?
Q. And beyond that are you positive?
you can substitute the last line with Q. Are you sure?
That by subtly weaving it in to the testimony, the jury gets used to it and is more likely to use the standard in their deliberations. Good stuff. Thanks for the tip David.
I understand your frustration. It is all too common. That being said, the choice of a "defense expert" would be a litigation decision and not likely a "claims handling" decision that would subject the carrier to a legitimate bad faith claim, at least not in KY.