Making Long Odds Work in Your Favor

We’ve long been fans of incorporating numbers and data into your case whenever possible.  We find jurors like to hang their hats on hard data – even if it’s only to solidify and confirm their emotion-based, subjective feelings about a case.

One time that numbers can work against you, however, is when you’re dealing with odds and probabilities.

Consider a case where a doctor is being criticized for failing to test for and diagnose a rare disease that occurs in something like one in 500,000 or a million people.  As the defense, you might think those odds work in your favor and no reasonable juror would expect a doctor to diagnose that disease within a few hours.

You’d be wrong.  In case after case – especially in plaintiff-friendly jurisdictions – we’ve seen jurors insist caregivers should have tested for any and all possible diseases, no matter how rare. 

Although there’s no perfect solution to this issue, and some jurors just won’t be persuaded, we’ve found one successful tactic is to create a demonstrative including a long list of many possible diagnoses that were statistically more likely than the one it turned out to be.  By listing dozens of rare diseases and their incidence statistics – the very long odds that anyone would contract them – you can illustrate it is unreasonable to expect a doctor to test for all of them right off the bat and create a narrative that identifying the correct condition was like “looking for a needle in a haystack.”

Another type of case where odds come into play is one in which the plaintiff alleges he or she is at risk for some rare complication in the future.  If the odds of that happening are long, you can use your closing argument to tell jurors about other improbable things that are more likely to happen – getting killed by a meteorite (one in 700,000), being struck by lightning in your lifetime (one in 12,000) or 20 coin tosses in a row all coming up tails (one in a million). (We found a list of the odds of all kinds of rare events.)

The point is, odds can be tricky because some jurors will insist that if something can happen, it probably will – or is at least likely enough to consider that it might.  By comparing the odds relevant to your case with other occurrences that seem unfathomable – such as getting killed by a meteorite or contracting Bubonic plague (one in 3 million) – you can drive home the point that those odds are basically zero.

If your case involves odds or numbers you need to communicate to a jury, focus groups are a great way to test different approaches.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out how we can help.