Dealing with Preponderance of the Evidence in Closing Arguments
More tips from David Ball in dealing with preponderance of the evidence in closing arguments:
“What that means is more likely than not. [Use the hands, the visual is more important to the juror than the words].
You’re allowed to have doubt. You can have all the doubts on both sides, as long as when you come down to it, you think it’s more likely than not.
We’ve shown you more than 50/50, but if you think it’s more than just 51, the judge will tell you have to decide it our way.
The ‘more likely than not’ standard is what everyone here agrees that we should use. Mr. Defense attorney agrees that, and that’s the way that Your Honor will explain it to you.
Over the course of deliberations, it’s possible that someone will say that they’re just not positive. They’re just not sure. They don’t have to be, have them knock on the door and ask the bailiff for the jury instructions. This will be jury instruction Number 7. Have them knock on the door and ask for the jury instruction (or have the judge explain preponderance again) to/for that juror who is confused.”
We need to help the jurors decide both liability and damages based on the preponderance of the evidence. Lawyers are trained to think that way. Jurors are not. We need to give them help to be able to follow the law better.
David Ball is one of the best trial consultants in the country. His book on Damages changed the way I try cases. I always look forward to hearing him speak at ATLA Conventions or colleges, so I decided to go to the source. So, I hire him for an hour a month to learn all of the latest and greatest trial tech. I’ll pass on the good stuff in the blog here.
