Comparing and Contrasting Evidence
In Product Liability Cases
It is not easy being a juror in a products liability case. Think about it—we take a dozen ordinary citizens, who generally have far more interesting things to do, and inundate them with information that is not only new but also often technically complex. We further complicate their job by requiring that they apply these newly learned facts using less than intuitive jury instructions.
Fortunately for trial lawyers, most jurors take their job very seriously and expend considerable effort to reach the right answer. Unfortunately for jurors, we trial lawyers do not always give our finders of fact the best tools to do their work.
For jurors, learning about a case always involves a certain sense of insecurity, as they try to relate to and understand unfamiliar facts. Often the most powerful tools you can provide jurors to overcome this insecurity and influence their learning process are those that help them answer the question, “Compared to what?”
Jurors cannot operate effectively in a factual void; they can only deal with new concepts by first comparing them to already familiar ones. Let me give you two real-world examples.
The plaintiff in the first case was in a bad automobile accident during which her car’s airbags deployed. For airbags to be effective, automobile manufacturers must use a small explosive device to inflate the bags as rapidly as possible. Despite having saved her life, plaintiff claimed that the noise created by the explosion permanently damaged her hearing.
Defendant’s expert denied that the sound, which was 140 decibels and lasted 24 milliseconds, could have caused any permanent hearing loss. Merely having the expert say this is not enough, since most jurors had no experience with which to relate to these numbers. Said differently, without more information, most jurors cannot answer the question, “Compared to what?”
The lawyer in this case used a graphic that compared 140 decibels to six, familiar, real-world events, including a rock and roll concert. The trial lawyer specifically chose to stress the rock and roll concert comparison for four reasons. First, going to such events was something that the juror could relate to as either fans or parents of fans. Second, people voluntarily went to such events without ever worrying about potential adverse effects on their hearing. Third, the lawyer later argued in closing that “140 decibels for 24 milliseconds is nothing, people go all the time to rock concerts and listen to two hours of 150 decibels of music with no problems.” Finally, the lawyer wanted the jurors to conclude (whether consciously or not) that the life-saving benefits of instantaneously deploying air bags far exceeded even the most enjoyable concert. So why was plaintiff making such a big deal of the airbag deployment?
The second example comes from a case where the lawyer used an analogy to help jurors appreciate how small a micron is. Merely saying that a micron is 1 millionth of a meter does virtually nothing to answer the question, “Compared to what?” Consider how much more effective it was when the lawyer showed the jurors that finding a micron-sized defect on an eight inch silicon wafer was like finding a soccer ball in 58,000 acres of land. In both the air bag and wafer cases, the jurors instinctively understood the trial lawyers’ points and, after short deliberations, returned with unanimous favorable verdicts.
Because of the way trials are structured, we are sometimes forced to present evidence in a disjointed manner. This is particularly so in product liability actions with their complicated intertwining of percipient and expert testimony. In such cases, jurors appreciate trial graphics that contrast key bits of evidence that may otherwise go unnoticed in weeks of testimony. Jurors use these graphics as scorecards to determine whether the evidence supports key arguments and to judge witness credibility.
Let’s look at an example and examine why it was effective.
The plaintiff in this case was a commercial flower grower. The defendant manufactured glass for large greenhouses. The plaintiff blamed his extremely low flower yields on defendant and sued, alleging the glass was defective.
There are two important facts. First, flowers grow best in specific wavelengths of light. To be successful, a grower must maintain the greenhouse glass. If he fails to do so, accumulation of dirt can affect the wavelength of light that passes into the greenhouse and devastate the grower’s yield.
Second, there was considerable disparity in what the plaintiff actually did versus what he should have done to maintain the glass. During cross-examination, the plaintiff testified he had cleaned the glass only once in ten years. Several weeks later, defendant’s experts testified that to avoid reduced yields, the standard in the industry was to clean the glass every six months. Obviously, there was considerable contrast between what the two witnesses told the jury.
Before I show you the graphic that was used in closing argument, I need to describe one of the graphic’s key features—it is buildable, that is, the lawyer shows it to the jury in layers. This permits the lawyer to display a part of the graphic, talk about or develop testimony about that exposed portion, then later come back and reveal another section of the graphic with additional testimony or argument.
There are four advantages in using a buildable graphic. First, because the jurors see the same graphic more than once, they are generally comfortable with it and often more accepting of the data that is displayed there. Second, as we will see, it is an easy way to compare data by juxtaposing the contrasting material next to each other. Third, by displaying information a bit at a time, the graphic does not overwhelm the jurors as it might if all the data was revealed simultaneously. Finally, for the showman in all trial lawyers, there is a certain inherent excitement in holding the jurors’ attention until you dramatically reveal the final bit of information.
Here is the buildable graphic and approximately what the lawyer said as she used it in closing argument. “Ladies and gentlemen, you heard that the industry standard is that the grower must wash the glass every six months. So, over the ten years that plaintiff owned the greenhouse, this is what he should have done:”
[Lawyer reveals first layer of graphic and lets jury review it for a few seconds.]
“And this ladies and gentleman is what plaintiff actually did:”
[Lawyer reveals second layer of graphic.]
This stark contrast was established and it was established far more strongly than if the lawyer had just used spoken words. The jury came back with a complete defense verdict.
This article appeared in Trials and Tribulations, the DRI Trial Committee newsletter in June 2005.
Appeared in Trials and Tribulations
November 30, 2004