Is that what happens after an accident?
Even when people see the same thing, they can see it differently. Personal injury and wrongful death attorneys with cases for people in car accidents deal with this all the time.
What might seem obvious in negligence cases must be investigated to be proved in court. It’s not enough to assume the facts. The trial attorney must dig deeper – to the facts on the ground that go beyond what seems obvious – to get what can be proved in court. We say at the courthouse, “It’s not a fact unless you can prove it.”
Here’s a social media example: the dress that millions saw with most saying it’s blue-and-black and many saying gold-and-white. They were honest, they just saw it differently. What they saw was influenced by the background and lighting. It depended on things besides the dress. (The thoughtful tech writer and PBS host, David Pogue cleverly goes through the theories of how it happens in this article. Video: What Colour Is This Dress? (SOLVED with SCIENCE)
Just so, the facts of an accident require investigation and explanation so jurors can decide what probably happened. The legal test in an accident case, or product defect or professional malpractice, is proof by the greater weight of the evidence. This means helping the jury decide what probably happened. Think of the different results between the O.J. Simpson civil trial (greater weight of the evidence) and the criminal trial (proof beyond a reasonable doubt).
Famed 20th Century trial lawyer, Louis Nizer, called this The Rule of Probability in his book “My Life in Court.” He explained that The Rule of Probability governs how juries decide civil cases. He also showed how the rule aided him in finding evidence that was thought long gone, or not even remembered. The key question to ask: What probably happened? Seems simple, but it requires thought and analysis.
I’ve been using The Rule of Probability for nearly 40 years. In preparing for my first civil jury trial as an associate with Terrell • Hogan in 1977, I used The Rule to dig out the facts of an accident that others, including the investigating officer, thought our client had caused. Using the rule helped the jury understand that our injured client was not at fault; in closing argument, I even explained to the jurors how to use the Rule of Probability to help them decide that very case.
So, just as with the famous blue dress on the internet, investigation into the facts can solve mysteries, but, for the victims of personal injury or wrongful death, it also helps juries find the truth and deliver justice. And, the potential of a just jury verdict usually leads wrongdoers and their insurance companies to settle and avoid trial.
Wayne Hogan is a Florida and National board certified trial lawyer and president of the TERRELL • HOGAN personal injury and wrongful death law firm.