Montana Lawyer December 2024/January 2025

The Lost Land of Proximate Cause THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D JURY ECONOMICS $130M. That was the average damage award across the three mock jury panels we used to test liability and exposure for our client who was the defendant in a wrongful death case. The mock jurors were angry about the evidence they saw supporting the plaintiff’s negligence claim and they wanted to send a loud and clear message. Message received. Unfortunately, as absurd as this average damage award was, the plaintiff’s attorney had an even more absurd settlement demand, making it certain this case would proceed to trial. Frustrated by their inability to settle the case, the client decid ed to conduct another mock trial to see if there was anything we could do to improve the case before trial. One change was made, and the impact was significant. In the second mock trial, two of the three mock jury panels found in favor of the defense and the third panel awarded $65M. Notably, in the panel that found for the plaintiff, three plaintiff advocates wanted to award well over $100M but two well-armed de fense advocates were able to exert downward pressure on the final amount. Armed with these new insights from the changes we had made to the case presentation, we marched into the court room and delivered a short and targeted opening statement molded around the strategy change we made for the second mock trial. That evening, seeming to be in some sort of panic, the plaintiff asked to discuss settlement, dramatically reduc ing their demand to an amount no one expected. The defense countered with an even lower number and the plaintiff im mediately accepted. What was the change that we made between the mock trials? It was how we talked about proximate cause. The defense attorneys knew from day one that they wanted to argue proximate cause, but that argument was completely lost on the mock jurors in the first mock trial even though the attorney for the defense had clearly said the defense disputed that anything the defendant had done had caused this tragic incident. It was frustrating for all involved. This problem is not unique to this case. Proximate cause has become the land of lost opportunity for defendants.

When we entered the profession two decades ago, several de fense attorneys told us cases could not be won on proximate cause. They had anecdotes at best, but no real data to support this argument, yet they felt strongly about it. We have seen many defense attorneys struggle and fail on proximate cause in mock trials over the years, so this viewpoint is not particu larly surprising. The misconception however is that this argu ment cannot be won when our mock trial experience shows instead that defendants simply need to change how they talk about proximate cause. In this month’s column, we want to shine a light on how defendants can improve their chances of success on proximate cause arguments. The first thing to understand is that jurors do not nec essarily think about causation on their own. Instead, the reasoning often seems to be, if you did something wrong, you should pay the price. They never qualify that line of reason ing with, “and what you did wrong was a cause of the injury.” Instead, causation often goes assumed even when it should not be. This means the default mode for most jurors is to not even think about causation. Verdict forms often reinforce this lack of attention to proximate cause. In many trial venues, the verdict form does not have a specific question for proximate cause. Instead, the verdict form is designed based upon the assumption that jurors will understand every element of the claim and evaluate each independently. This is important because it means there is nothing on the verdict form that brings jurors’ attention specifically to proximate cause during their discussion in deliberations. And unfortunately, the ver dict form is the only document we can be certain that jurors will review in their deliberations. We certainly hope they will look at the jury instructions, but even when they do in our mock trials, they seem to gloss over proximate cause. Consequently, the first critical step for prevailing on proximate cause is to be so explicit about the argument that jurors do not lose sight of it in deliberations, and to establish the concept in their minds. This is the problem we see so often in our mock trials: defense attorneys think they are be ing clear about their causation argument, but it still ends up

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