Montana Lawyer October/November 2025

on proximate cause. Even worse, in some instances, we saw defense-oriented mock jurors wasting stamina and credibility fighting plaintiff advocates on negligence, creating early losses for these defense advocates that sometimes impacted their motivation and/or ability to continue effectively arguing in deliberations. With the issues being merged into a single question, defense advocates were able to jump in and take control of the discussion much earlier in deliberations. In contrast, in deliberations where negligence and causation were combined into a single question, which is more com mon in southern venues like Texas and Georgia, we saw much shorter discussion about the negligent acts of the defendant because defense advocates were quick to jump in and question causation. With the issues being merged into a single question, plaintiff advocates were not able to argue that the question at hand does not relate to proximate cause like they were where the verdict form separated the issues. In other words, defense advocates were able to jump in and take control of the discus sion much earlier in deliberations when the issues were com bined on the verdict form. The lack of a drawn-out discussion on negligence alone made it more difficult for anger to develop and for plaintiff advocates to gain momentum. Defense attorneys stuck with verdict forms that separate out negligence and causation may understandably wonder what value this finding has for them, but there are practical takeaways for this scenario as well. One of the key issues is how the verdict form impacts where jurors start their discus sion in deliberations and where they spend their time early in discussion – which can influence the results. Defense attorneys who are relying on proximate cause arguments should argue in closing argument that jurors should start the discussion on proximate cause since it is the most important issue and will determine whether they need to discuss anything else. Defense attorneys need to show jurors how to deliberate in closing argu ment, which is a task that is often forgotten. Instead, too many attorneys use closing argument only to summarize the evidence and make their argument, but jurors want guidance on how to go about deciding the case and defense attorneys may be able to make a compelling efficiency argument for why they should begin with the proximate cause question when they begin their deliberations. The second key finding from this study is that explicit causation arguments, where the defense attorney walks jurors through how proximate cause arguments work and what they mean, have a significant impact on verdicts. Regardless of the Defense attorneys need to show jurors how to deliberate in closing argument, which is a task that is often forgotten.

verdict form used, the two scenarios where the defense attorney used explicit proximate cause arguments resulted in significant ly fewer participants finding in favor of the plaintiff on proxi mate cause. This result shows how important it is for defense attorneys to walk jurors through the logic of a proximate cause argument, which most jurors do not intuitively understand on their own. Here is the additional paragraph that was argued in the explicit proximate cause defense presentation so you can see how the logic of the argument was broken down for jurors. This result shows how important it is for de fense attorneys to walk jurors through the logic of a proximate cause argument, which most jurors do not intuitively understand on their own.

“This is important because the law recognizes that an individual can be negligent, but that neg ligence might not be the cause of the plaintiff’s injuries. This is why the law asks you to deter mine whether the defendant was negligent in one instance AND THEN SEPARATELY, whether that negligence was a proximate cause of the plaintiff’s injuries. The plaintiff has to prove both negligence and causation by a preponderance of the evidence. You cannot find in favor of the plaintiff unless you conclude the defendant was negligent AND that negligence was the specific cause of the plaintiff’s injuries. Here, you may understandably conclude that it was negligent of our driver to exceed the speed limit by 10 mph, but his speeding was not the cause of this accident. The evidence shows that the force of impact at 35 mph would have still resulted in the same injuries for the plaintiff. In short, our driver’s speed did not cause this accident. This accident was caused by ice in the road that no one could see or have reasonably expected. Consequently, we ask you to find in favor of the defense by concluding that the defendant’s ac tions were not a proximate cause of the plaintiff’s injuries.”

Despite these findings on how the verdict form and defense presentation can impact jurors’ willingness to find in favor of the defense on proximate cause, the study showed some limita tions. For example, 33.5% of the participants who agreed that the speed of the Swift Deliveries driver was not a cause of the accident still found in plaintiff’s favor on proximate cause. A closer look at the data explains this disconnect. First, partici pant anger was a factor. Participants were asked to rate their anger towards the defendant on a scale of 1 to 10 (with 1 being “not at all angry” and 10 being “very angry”) and those who found in plaintiff’s favor on proximate cause produced average anger scores twice as high as those who found in favor of the defense on proximate cause. They were also significantly more

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