Montana Lawyer December 2024/January 2025

such as, “was the negligence of the defendant a proximate cause of injury to the plaintiff?” Unfortunately, many judges do not use verdict forms with specific proximate cause ques tions on them. In these instances, the defense attorney should show jurors the relevant question on the verdict form and then show them the key jury instruction for that question, high lighting any sentences in the instruction that reinforce that this is a separate and independent element the jurors must decide. After showing these items, the defense attorney should then make the proximate cause arguments and explain what they mean for how jurors complete the verdict form. Beyond the case presentation, defense attorneys arguing a proximate cause defense also need to probe for jurors who are going to reject this concept in voir dire. There are some people who simply do not like the idea of letting a defendant “off the hook” because their negligent act did not cause the injury to the plaintiff. Some jurors want to punish a defendant for a negligent act regardless of its causal connection to the plaintiff’s injuries, so it is important to identify these people in jury selection using a de-selection approach. One example of a forced-choice question we have used in these cases is as follows: “I want you to imagine a situation for

people who would still find against the defendant in that situation because they feel like it would be letting the defendant off the hook to say the defendant was negligent but not a cause of the plaintiff’s injuries. I know other people who would disagree and say, if that negligence was not the cause of the plaintiff’s injuries, you cannot find against the defendant. By a show of hands, how many would tend to agree more with that first group and find

against the defendant because it would feel too much like letting the defendant off the hook to say it was negligent but that negligence did not cause the plaintiff’s injuries? ” Overall, the key to success on proximate cause is being explicit in establishing the concept for jurors and then holding their hand as the defense attorney shows them how it works and what it means for how they fill out the verdict form. The strategy should be akin to the instructions for putting together Ikea furniture. Defense attorneys should walk jurors through each individual step and show them how that builds up to a defense verdict on proximate cause. Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.

a moment where you felt a defendant in a lawsuit was negligent, but you did not believe that negligence was the cause of the injuries to the plaintiff. I know some

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