I have struggled with explaining to jurors how it can be really hard to hold the burden of proof down to the lower level that applies in civil suits, when the person thinks the burden should be higher, especially when you’re talking about a lot of money. Yesterday, I was walking along the
ocean’s edge on my morning beach walk. I had to keep adjusting my path as the waves inched up from low tide. It hit me, this is how to help jurors understand that the burden of proof can creep up, in spite of a person’s best intentions, when they believe it is too low.
After explaining the difference between the criminal and civil burden and the reason for the difference (no one is going to jail), give jurors the following rising tide analogy to bring home how hard it is not to raise the burden for people who don’t want to be associated with verdicts for millions of dollars or any significant amount:
Think of it like tides. The criminal burden of beyond a reasonable doubt is high tide. The civil burden of greater weight is low tide. For folks who believe the lower burden is not enough in a case involving millions of dollars, trying to hold fast to that lower burden can be like trying to hold the tide back. There’s a real risk of saying, “I’m just not convinced”, when the evidence is actually sufficient under the lower standard. You won’t do it on purpose. It’s the powerful pull of your beliefs that want to rise like the tide. In spite of your best efforts, the burden starts inching up.
How many of you say, in all honesty, there’s a real risk you’ll end up unintentionally raising the burden because of your beliefs. You cannot assure the court the tide won’t rise?