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9 Cards in this Set

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The burden of proof in this case is by a greater weight or a preponderance of the evidence. Preponderance is not a word that is commonly used and so I wanted to talk about that with you. Preponderance of the evidence means evidence which, as a whole, shows that the fact sought to be proved is more probable than not. In other words did ______________ probably happen or not? That is the standard that the parties (or Mr. Defense lawyer and I ) want you to use in this case and you will hear the judge say later that this is the law.
Negligence means that a person did not use the same mount of care that a person of ordinary reason and prudence would use in the same circumstances. To be negligent a person must do something a person of ordinary prudence would not have done or fail to do something a person or ordinary prudence would have done. Of course in this case we have said that the Defendants were negligent by __________________________________. And also by _____________________.
One way to argue against a witness is to find something that the witness says is clearly wrong. For example, where a photo shows that a car is blue and the witness says the car is red. Argue to the jury that “If we can’t trust him on this point why should we believe him on anything else?”
This is an argument from Jim Perdue who quotes Abraham Lincoln. “I was in New Orleans the other day and they were selling slaves. Some of he sellers were beating the slaves. I don’t understand how one human being can beat another human being. But I really don’t understand those people who just walked on by…..Dont just walk by this. We have the chance to do something good here.
Respond to allegations of malingering as follows:

They have told you that Sally is not being truthful about her injuries. They are saying that her husband is dishonest and they are saying that her doctors are making this up too. It as not nough for them to injure her. They have done anything they could to avoid responsibility in this case, up to and including, calling her a liar and exaggerator. They are essentially saying that she lied to get money. Unlike some of the harms in this case you can fix this one. At the instant that your verdict is read aloud Sally can get her good name back. If yu give a verdit for the full and fair amount—the million dollars we talked about. From the moment that your verdict is read aloud the community will know that 12 neutral jurors who sat and heard everything knew Sally was telling the truth If your verdict s lower that is the amount of mistrust that will be forever attached to Sally’s good name. People who were not here will be justified in thinking that you did not believe her—or her husband or her Doctor
Explain how to apply the percentage fault:

If you decide that Kreig was 5% to blame, then write 5% on this line. The judge will se that 5% to reduce the dollar amounts you write later. So if you decide that the total amount of the harm was $100,000, no matter who did it, write 100,000 on this line. Again that’s the amount of the harm NO MATTER WHO DID IT, the value of the total harm. He judge will later reduce it by the 5% from this line so John will get $95,000
If the other side has put up a persuasive comparative argument, it can be best when massaging he verdict form to acknowledge that some jurors may think it fair to assign some blame to your client. Give a suggested range: “someone might reasonably think that some of the fault was John’s. You show how much fault you think was John’s by giving a percentage. You might think 5% or 10% or even as high as 15%. Whichever you all agree on, write it on this line here.”

You can also argue that the amount of fault is proportionate to what your client knew as opposed to the defendant knew about the potential for danger. “The doctor knew all about the possible consequences. Mary did not even know 10% as much –so the limit f her responsibility is no more than 10%
Folks in a little while you will go into the jury room and you will have two jobs. One f your jobs is to answer the questions the judge gves you. Your other job will be to explain to other jurors why you feel the way you do about each question. So for the next ____ minutes I’d like to give you some ways of doing that.

Ball suggests using this at the start of your second closing
When this case is over if someone asks you why did you give all that money to that lady? Just tell them __________