Academic journal article Defense Counsel Journal

Looking Backward to Move Forward with Your Defense: Using History to Overcome Jurors' Misunderstandings about Science

Academic journal article Defense Counsel Journal

Looking Backward to Move Forward with Your Defense: Using History to Overcome Jurors' Misunderstandings about Science

Article excerpt

SUCCESSFULLY defending product liability lawsuits involving pharmaceuticals or medical devices presents a host of challenges. Viewing a handful of ambiguous, cherry-picked documents with "perfect" hindsight, jurors may feel tempted to conclude that a defendant knew about the possible harms attributed to the product, overlooked those potential harms in the name of profit, or even intended that product users purportedly suffer those harms. Opposing counsel lend their voices to this cause, aided by professional experts who parrot the party line. Time itself poses potential hurdles, as the consolidation that has characterized these industries could make key employees virtually unavailable, make document retrieval tricky, and amplify the possibility that jurors will evaluate a defendant's actions with the benefit of a rearview mirror. Even finding key employees does not ensure success: while brilliant at executing their jobs, they may struggle to communicate with their friends, family members, and even those paid to listen to them. Of course, the task becomes even more daunting, as most jurors receive only a fraction of their wages, the commitment can last for weeks or even months, and opposing counsel offer inflammation rather than information.

The simplicity that plaintiffs' experts often trumpet can be the steepest challenge faced by the defense. On the surface, the rudimentary theories extolled by plaintiffs' experts could not sound more logical, clear, or persuasive. They nonetheless may lack scientific merit. All too often, however, simplistic, inaccurate reasoning resonates with juries because it just "sounds right." Such basic theories also play on jurors' misunderstandings about science and medicine. Proving that an opposing expert is wrong thus can be tantamount to telling jurors that they, too, are wrong. Yet, with very limited exceptions, a defendant must address those misunderstandings lest the plaintiff taint the manner in which the jury views the defense, its witnesses, and its evidence.

History--as shared through carefully selected and crafted stories--provides one way through which defense counsel and their experts can improve their odds of convincing jurors to pierce such simplistic reasoning. Stories about how things "used to be" and the ways in which scientists discovered the errors of their own may particularly help debunk the ways in which jurors may be tempted to view scientific evidence. Indeed, for most jurors, past experiences provide a readily accessible basis for present decision-making. Or, as the Spanish philosopher George Santayana observed: "Progress, far from consisting in change, depends on retentiveness. Those who cannot remember the past are condemned to repeat it." (1) A rock-solid nugget of history that any adult can understand and that many adults may remember learning can breathe life into a critical presentation that otherwise could test the bounds of the jury's attention, comprehension, and patience.

Section I of this paper discusses the importance of recognizing and openly addressing jurors' misunderstandings about science and medicine. Section II examines why historical examples of fallacious reasoning provide a promising tool for identifying the errors undermining opinions offered by plaintiffs' experts, educating jurors about the proper means of evaluating scientific and medical evidence, and humanizing defense witnesses. Section III discusses historical examples of fallacious reasoning that defense attorneys can couple with stories to reveal the weaknesses in plaintiffs' scientific or medical evidence. Although historical examples cannot remedy every witness's flaws, clarify every document's ambiguity, and patch every circumspect argument, they provide a unique opportunity to further case themes, build trust with jurors, and deliver memorable evidence that makes its way into jury deliberations.

I. Why Defense Counsel Must Address Jurors' Misunderstandings

Jurors do not leave the biases created through life's experiences at the courtroom door. …

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