Montana Lawyer December 2024/January 2025

sounding like a negligence argument and, as noted earlier, jurors do not tend to go there on their own. Instead, the proximate cause argument just seems to get drowned out by everything else they hear on liability. This is why it is so im portant that defense attorneys walk jurors through how the law recognizes one can be negligent without that act of neg ligence being a cause of the injury suffered by the plaintiff. Examples can be helpful in making this point. For example, jurors might conclude that it was negligent for a defendant corporation not to train its employees on a certain subject, but also conclude that the lack of training was not an actual cause of the injuries the plaintiff suffered. Once the concept has been clearly laid out for the jurors, the next step is to repeat and repeat and repeat. Repetition is the most rudimentary form of persuasion. Trial is a battle of salience, and the prevailing party is usually the party that exerts the most influence over what the jurors remember when they get to the deliberation room. Consequently, it is critical that the jurors have repeated exposure to the explicit proximate cause argument. Defense attorneys can be creative in their strategy of repetition. For example, they could build sign-posting questions into witness testimony that reinforces the focus on proximate cause. This could be as simple as a question like, “Dr. Smith, as you are aware, the plaintiff not only has to prove that my client was negli gent, but they also have to prove that that negligence was a cause of the injury to the plaintiff, so I want to ask you a few questions about causation.” This kind of signposting, used with multiple witnesses, is a simple repetitive device to help keep causation at the forefront of how jurors think about the case. Graphics can also help jurors understand the indepen dent element of proximate cause along with the separate and independent burden of proof that comes with it. The most common visual analogy used in these graphics is a bridge, where each independent element of the claim repre sents a section of the bridge. The message is that the plaintiff must independently establish each element of the bridge

before they can get to the other side, which is a verdict in their favor. A graphic like this should be used early in trial in opening statement to establish the concept and then used again in closing argument to reinforce the point. Closing argument is another critical opportunity to shape the way jurors think about the key questions in the case. While most attorneys tend to focus on arguing in clos ing arguments (it’s in the name after all!), it is even more important to teach jurors how to deliberate in the closing argument and arm defense advocates with the tools they need to take control of the discussion. For most jurors, jury duty is a new and unfamiliar experience for them, so they don’t have a clear understanding of how delibera tions are supposed to occur. This is why prior jury duty is the number one predictor of who will become foreperson. Jurors are quick to defer to someone who seems to know what they are doing. Jurors want this guidance. They want to be shown exactly what to do in deliberations. They want to be shown where to begin and want to be given shortcuts. Consequently, defense attorneys should use this opportuni ty to drive the proximate cause arguments. For example, the defense attorney might suggest jurors focus on proximate cause first when they begin their discussion since the other issues in the case won’t matter if they conclude the alleged negligent act was not a cause of the plaintiff’s injury. Jurors might find this compelling since it simplifies the process. Even better, if jurors follow this suggestion, they begin de liberations on an issue that favors the defense, which creates natural momentum in favor of the defense in deliberations. Following the suggestion of where to begin, defense at torneys should then walk jurors through the verdict form, highlighting the key jury instructions along the way that make it clear that proximate cause is a separate question with its own independent burden of proof that jurors must answer, even if it is not explicitly asked on the verdict form. For example, the defense can start by highlighting the ques tion on the verdict form where proximate cause is relevant. In an ideal world, this is literally a proximate cause question

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