Negligent about Negligence?

Lawyer reviewing a document looking for negligence

What is the weirdest fact you have looked up lately? Perhaps a random Guinness World Record? The world today is exploding with instant information

You can look something up online and have millions of results within seconds. It’s amazing. Jurors, however, are at a distinct disadvantage since they aren’t supposed to do any research. They come into the courtroom with what they know and what they don’t know. Assuming a juror knows the meaning of a term – like negligence – is just plain negligent!

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Below I will show you how a private jury demonstrated this gap in a lawyer’s argument. Additionally, I’ll share some insights (gleaned over decades in jury research) into how to avoid this oversight.

First, a quiz… what percentage of jurors do you think can accurately define what negligence is?

  • 0-25%
  • 25-50%
  • 50-75%
  • 75-100%

In a recent private trial, 16 jurors were asked the following question: “The lawyers have been talking all trial about ‘standard of care’ and ‘negligence.’ In your own words, what is the connection between the standard of care and negligence? How do they relate to each other? (It is OK to say I don’t know).”

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Below are their answers:

  • It was negligent on DF’s part to not admit that an alert system was possible, and it surprises me that they say the technology didn’t exist. As to the standard of care, they used the care they’ve always used, which is very acceptable. WRONG
  • To me, negligence is knowingly doing something wrong or ignoring the right thing to do because it doesn’t benefit you. Or doing the bare minimum to get by. WRONG
  • They are in the same scope. WRONG
  • Did one or the other party intentionally create an issue that would influence the overall outcome? WRONG
  • The direct correlation is that the standard of care is a benchmark or standard with which to base the formulation of your opinions, (based on facts) to conclude if negligence has occurred. CORRECT
  • I believe the standard of care is what is done in the industry or by your peers whereas negligence is causing harm to someone by what you have done or have failed to do. WRONG
  • Standard of care meant was acceptable practice vs negligence meaning even though they didn’t have to be doing something, them not doing was negligent. WRONG
  • Care, showing concern for the general public, negligence is to not care at all for any reason whatsoever to anyone… I think this DF generally cares about people. WRONG
  • I believe that if you have met the industry-acceptable plateau for the standard of care and have obeyed all laws and regulations then you cannot be found negligent. CORRECT
  • Standard of care is what they should do..negligence is when you choose to not provide a standard of care. WRONG
  • I believe the standard of care is what is done in the industry or by your peers whereas negligence is causing harm to someone by what you have done or have failed to do. WRONG
  • To me, the standard of care is after the fact. The concept of negligence is the reason or the after product of standard operation or standard everyday operating procedures that causes you to care. In other words, if you are not negligent, you don’t have any standard of care. in other words, I don’t know. WRONG
  • The standard of care is doing something that will not hurt anybody including yourself, while negligence is knowing what you are doing and it is dangerous and causing harm to somebody or yourself. WRONG
  • If one provides a service to the public, they have a duty – the standard of care – they don’t sell poisonous water on a street corner by a high school (ok a little over the top ) negligence is the act of ignoring common sense. WRONG
  • Not sure right now. WRONG
  • Standard of care is basically doing the right thing-negligence is having information but not doing anything about it or doing the wrong thing. WRONG
  • The standard of care is taking responsibility for what is going on. and negligence is plain out not caring what happens either way. WRONG
  • standard of care will inform if negligence if they reasonably complied with everything expected within the industry. INARTFUL … BUT CORRECT

Of the 16 responses above, we can see this lawyer did a horrendous job communicating and defining “negligence” and “standard of care” to the jurors. Can you win your case for negligence if the jurors can’t even define it?!?

3 Suggestions for Your Next Trial

Save the following three suggestions for your next jury trial.

No. 1: Learn to recognize your use of legalese. Rehearse your case in front of mock juries and ask “obvious” questions like the one above.

No. 2:  Never assume the jurors understand your legalese. Do they have the same understanding of the term as you?

No. 3: Keep paraphrasing what your key legal terms mean throughout the trial. Repeat, rephrase, and recall.

If you win a verdict with jurors ignorant of your key concepts, you are not good. Just lucky!

Once you have established a common understanding of your key terms, the next step is to take leadership of the jury. We’ll talk about tips to earn the right to jury leadership in our next article.

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