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Let the Defendant CompareLet the Defendant Compare

Let the Defendant Compare

Kirk Simoneau

Lawsuit Information

New Hampshire is a comparative fault state. The burden of proof, of course, for demonstrating comparative fault lies within the defense and they can’t just argue it - they need evidence to prove it. See Legere v. Townsend, 141 N.H. 593 (1997).

Often, as plaintiff’s lawyers - look, as lawyers in general - we argue every point put in front of us, we fight everything. Now, I believe every case is different, driven by its facts and personalities, but there are some generalities that bear reflection. A comparative fault instruction isn’t a bad thing. To me, it serves two potential purposes. First, it’s kind of a release valve for the jury. Remember, the jury begins with a bias toward the status quo and the belief that people fall accidentally. This gives the jury a chance to help your client while still allowing those implicit biases to remain undisturbed. It’s easier for some jurors to see shared fault and it’s easier to get a verdict if you aren’t playing a zero-sum game.

Second, to argue comparative fault the defense does, necessarily, one of two things: blame the victim or make an overtly lawyerly argument. If you have a good picture and a likable client, setting up the defense to blame the victim can be terrific. The other necessary argument is built around the lawyer’s ability to maintain two distinct, opposite arguments. Essentially, in a comparative fault argument the defense is saying “this isn’t dangerous, but if it is it’s the plaintiff’s fault.”

Juries hate lawyers and lawyer logic. Either the stairs, or whatever, are dangerous or they’re not. In virtually every slip and fall trial, the defense will argue there is no defect but simultaneously offer evidence as to why the fall is the plaintiff’s fault. I believe juries don’t like either tack, but plaintiff’s lawyers fail to do one simple thing - point this out.

If defense counsel blames the victim, tell the jury. If they make “lawyerly” arguments, point it out. Go back to the picture. Say “If I’m getting this right, Mr. Defense Lawyer is saying this (point to the picture) isn’t dangerous, oh, but if you think it is, it’s the plaintiff’s fault.” Don’t expect the jury to help you until you point it out. Give the jury permission to be annoyed.

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