Montana Lawyer October/November 2025

likely to believe delivery companies put profits before safety and that too many delivery drivers engage in unsafe driving behavior. Consequently, managing juror anger and frustration at trial is critical to success on proximate cause. Nearly four out of five jurors who sided with the plaintiff admitted they would have a hard time concluding the defendant’s negli gence was not a cause of the injury because it felt too much like letting the company off the hook. Second, the study revealed there were participants who were simply unwilling to let the defendant “off the hook” by find ing in favor for the defense on proximate cause. For example, 87% of those who found in plaintiff’s favor on proximate cause agreed that, “If Swift Deliveries, Inc. was negligent, they should have to pay money in this lawsuit regardless of whether that negligence was the cause of the plaintiff’s injuries,” compared to only 59% of those who found in defendant’s favor on proxi mate cause. Similarly, 79.5% of those who found in plaintiff’s favor on proximate cause agreed, “I would have a hard time concluding that Swift Deliveries, Inc’s negligence was not a cause of the plaintiff’s injuries because that feels too much like it is letting Swift Deliveries, Inc. off the hook for its driver’s ac tions,” compared to only 43.8% of those who found in favor of the defense on proximate cause. Defense attorneys may wonder at this point what they can realistically do about this attitude, but it is something that is easy to tackle in voir dire. Proximate cause is rarely addressed in voir dire, but there are good strategies for doing so. For ex ample, defense attorneys may consider a simple forced-choice question like the following:

drunk home from a night out with friends when another driver crosses over into the lane of the drunk driver colliding with the drunk driver’s vehicle and causing injury to them. This example may be useful because it offers a classic example of negligent conduct (drinking and driving) that jurors may struggle to overlook. Defense attorneys should not rely on the jury instructions and verdict form alone. Instead, they need to take jurors by the hand and walk them through the logic and structure of the proximate cause argument. Overall, this new data reinforces that defendants can prevail on proximate cause, but also highlights all the work that must be done along the way, starting early in voir dire, because proximate cause is not an argument most jurors intuitively understand on their own. Defense attorneys should not rely on the jury instructions and verdict form alone. Instead, they need to take jurors by the hand and walk them through the logic and structure of the proximate cause argument so they understand that it is not enough to conclude the defendant was negligent, no matter how frustrating that negligence might have been.

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 .

“I want you to imagine a situation for a moment where you felt like a defendant in a lawsuit did something wrong, but you did not believe that the defendant’s wrongdoing caused any harm to the plaintiff. I know some 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 did something wrong, but it was not a cause of any harm to the plaintiff. I know other people who would disagree and say, if the error did not harm the plaintiff, you can’t 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 the defendant did something wrong, but that the error did not cause harm to the plaintiff? ”

We recently had a defense attorney offer a similar example of a drunk driver for a voir dire question, suggesting the po tential jurors being given a scenario where someone is driving

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