A civil case is different than a criminal case. In a civil case, nobody goes to jail. Nobody loses their freedom. A civil case is about money. In a criminal case, on the other hand, somebody’s freedom is almost always in jeopardy. For this reason, the burden of proof in a civil case is less than in a criminal case. In a criminal case, the prosecutor must prove the case beyond a reasonable doubt. This is called the reasonable doubt standard. In a civil case, there is no such thing as a reasonable doubt standard. In a civil case, the plaintiff’s attorney must prove the case by a preponderance of the evidence. This is also known as “the greater weight of the evidence standard.” The idea is that the jury must weigh the evidence on both sides of the case and decide which side’s evidence carries the greater weight. According to this theory, the jury will award a verdict in favor of the side whose evidence is more convincing and persuasive.

Ideally, this is the way the civil court system works. It makes sense. Jurors are called upon to make a difficult decision. The best way to make a difficult decision is to weigh the evidence on both sides of the issue and see which side’s evidence is more persuasive. However, in the real world, in a real court room, the plaintiff’s attorney should endeavor to prove his case beyond a reasonable doubt, regardless of the legal standard articulated by the court. The plaintiff’s attorney should never assume that the jury will utilize the greater weight of the evidence standard, and to the contrary, should assume that the jury will look for reasons to doubt the plaintiff’s case and use those reasons to render a defense verdict. It’s important to keep in mind that in order to award money to a personal injury plaintiff in Florida, six jurors must agree not only on the liability aspect of the case, but also the damages. One bad juror can ruin a verdict. The personal injury attorney should endeavor to take all ammunition away from any potential holdout jurors.
By approaching the case with this mindset, the personal injury plaintiff’s attorney will increase his or her chances of a succesful outcome for the client.

To prove the case beyond a reasonable doubt, the personal injury attorney must identify and destroy all assumptions. This is more difficult than it sounds. Take, for example, a personal injury plaintiff who is struck from behind on a motorcycle, strikes his head, and suffers a post traumatic brain injury. Before the accident, he was a straight A college student, hoping for a career in law. Afterward, he is unable to finish college due to difficulty concentrating and emotional problems. On the surface, this tragic situation seems like a valuable personal injury case. However, there are several assumptions that could ruin the case.

First of all, the personal injury attorney should not assume that every rear end collision case is a slam dunk on liability. In a personal injury case, jurors often blame the victim. In the above described motorcycle accident case, the jury will look very critically at the actions of the plaintiff to decide if the plaintiff was at fault for the accident. Did the plaintiff fail to use his turn signal? Were his tail lights working properly? Was he wearing dark clothing at night? Was he weaving in and out of traffic? Did he stop suddenly and without good cause? If the plaintiff was on a motorcycle and knew that traffic was busy on that particular road, could he have taken a safer route? Was his decision to take the route he chose a reasonable decision under the circumstances? Should he have chosen a better time to travel? Why did he choose to ride a motorcycle as opposed to driving a car? Was the plaintiff wearing proper protective gear? In order to prove the case convincingly, a personal injury attorney must answer all these questions and more.

The personal injury attorney should also not assume that the jury will believe the head injury was caused by the accident. If the plaintiff never suffered a head injury before the accident, it makes sense that the difficulty concentrating and emotional problems after the accident were caused by the insult to the head. However, there are so many reasonable explanations for difficulty concentrating and emotional problems that the defense attorney will have a field day instilling doubt into the juror’s minds. The plaintiff’s attorney must do more than establish a temporal connection between the accident and the symptoms. Usually through neurological and neuropsychological testimony, the plaintiff’s attorney must develop a theory regarding the exact area of the brain that is injured, the exact mechanism of injury (how that particular area of the brain was damaged), and how the accident set in motion the mechanism of injury. Objective evidence such as a PET scan is the best way to establish an injury, but even with objective evidence the plaintiff’s attorney should not assume that the jury will believe the injury was caused by the accident, or that the injury is causing the alleged symptoms. The personal injury lawyer should utilize objective evidence such as PET scans, CT scans, and MRI films to prove the injury, neurological, neuropsychological, and biomedical expert testimony to establish the mechanism of injury, and before/after witnesses to butress the expert testimony linking the symptoms to the injury.

The above described case involving the motorcycle accident has so many assumptions that it would take an entire book to identify all of them. The purpose of this blog is to show how a plaintiff’s attorney should take nothing for granted. By thinking about every aspect of the case with the critical eye of the most resistant juror and identifying and destroying all assumptions, the plaintiff’s attorney can significanly increase his or her chances of a victory for the client.