When-science-is-on-your-side--but-you-lose-anyway
By David S. Davis
In a lawsuit where the claim is that a product or substance caused a disease or injury, one would think that a sine qua non of the plaintiff's case is strong evidence that the product or substance is more likely than not the cause of the particular injury the plaintiff claims to have. Yet, my observation of these cases over many years is that while defense lawyers may firmly believe that such evidence is weak, lacking, or bogus, the plaintiff is often still able to make substantial recoveries before juries.

Defense lawyers frequently express frustration with juries that seem to ignore the powerful scientific evidence they present to counter the plaintiff's claims. They characterize the jury as unsophisticated, easily manipulated, and led by emotions rather than thought. In this article we will examine why jurors so often reject the defense's strong scientific case and ways that the defense might overcome that problem.

In what follows I want you to make an assumption: That the defense's scientific case on causation is strong and the plaintiff's is relatively weak. We're not talking about the relationship between asbestos exposure and asbestosis. With that in mind, let us first understand why the plaintiff's case may be appealing to jurors despite its weakness.

First, defense lawyers need to understand that when they step outside their role as lawyers that most of them are not much different from everyone else. Acting as a defense lawyer entails thinking in a logical and rationality maximizing manner. The weakness of some defense lawyers is expecting jurors to think in the same way when, in their everyday lives, most of these same lawyers frequently do not think this way. Let's take some examples.

1. Would you choose to engage in an activity that could provide great rewards, but brought great misery when unsuccessful and which had a fifty percent failure rate? My guess is that many of you would not, yet almost all of you have chosen or will choose to get married, an activity with a fifty percent failure rate. Interestingly, many people (including defense lawyers) choose to marry knowing what the failure rate is. Despite this assumption of the risk, many still blame others for the failure. We find this external attribution of blame to be a common occurrence among jurors, even when the plaintiff has knowingly engaged in a well known and risky activity.

2. Bushes that burn that never burn; waters of a sea parted by the raising of a rod; a woman turned into a pillar of salt; another woman made pregnant by a God and giving birth to a God; and water turned into wine. People unfamiliar with the Judeo-Christian religious tradition might find these to be bizarre and impossible events. Despite no scientific evidence to support their actual occurrence, many millions of people believe them to have been

Armenian cave yields what may be world's oldest leather shoe
Get a kick out of this: Researchers reported Wednesday finding the world's oldest leather shoe in a cave in Armenia.
Roman gladiator cemetery found in England
Heads hacked off, a bite from a lion, tiger or bear, massive muscles on massive men -- all clues that an ancient cemetery uncovered in northern England is the final resting place of gladiators, scientists have announced after seven years of investigations.
Census questions answered
You've probably saw the ad campaign encouraging you to take 10 minutes to answer 10 questions and fill out your census form. The Census Bureau wanted everyone to put their completed forms in the mail by April 1, National Census Day.
Neanderthal genome shines light on human evolution
An international team of scientists that spent more than a decade studying remains of Neanderthals has drafted the first genome sequence of humans' closest extinct biological relative.
Officials to discuss Census participation
The army of U.S. Census Bureau personnel poised to fan out across the country will find out Wednesday approximately how many doors they're going to be knocking on to complete this year's nationwide survey.
Archaeologists discover a Roman-era mummy
A Roman-era mummy was recently unearthed in a Bahariya Oasis cemetery, about 190 miles southwest of Cairo.
Protect your identity during census season
Your best bet at keeping your personal census information safe is through the lick of an envelope, not the click of a mouse.
Arab-American leaders push census participation
For Muslims living in the United States, the call to prayer requires a response at least five times a day. But when the U.S. Census Bureau comes calling once every 10 years, some Arab-Americans still hesitate to return the survey.
Not-so-stupid animal tricks
For centuries, philosophers claimed that the ability to make tools separated man from beast.
Census Day questions answered
You've probably seen the ad campaign encouraging you to take 10 minutes to answer 10 questions and fill out your census form. The Census Bureau wants everyone to put their completed forms in the mail by April 1, National Census Day.
Beware census scam artist tricks
This week, you'll find a 2010 census survey in your mailbox. And it may be followed shortly thereafter by a call or e-mail from con artists pretending to be from the government.
Census Bureau: Dallas posts biggest population gain
Don't mess with Texas! Cities in the Lone Star State were among the fastest growing places in 2009.
Bahrain's covered history
The skyline of Bahrain, formed by gleaming high-rises and upscale hotels, is all it takes to convey the ambitions of the small Gulf isle.
Ancient road found in Jerusalem's heart
Archaeologists working under the direction of the Israeli Antiquities Authority have uncovered a 1500-year-old road running through the center of Jerusalem's Old City.
Archaeologists find Byzantine era road
Archaeologists working under the direction of the Israeli Antiquities Authority have uncovered a 1,500-year-old road running through the center of Jerusalem's Old City.
Census chief works to calm deportation fears
The hardened dirt road turns off Highway 359 and runs under a simple iron archway. It's an easily forgettable entryway into one of the nation's poorest neighborhoods, the San Carlos "colonia" on the outskirts of this Texas border town.
Don't mess with Texas: More Americans moving in
Americans, it seems, still have a love affair with the West. Texas and Wyoming were the big winners in the Census Bureau's annual population estimates, which were released on Wednesday.
Census 2010 can count on controversy
It's almost that time: the once-a-decade-moment when the U.S. Bureau of the Census tries to determine the population.
House uncovered in Nazareth dating to the time of Jesus
Archaeologists in Israel say they have discovered the remains of a home from the time of Jesus in the heart of Nazareth.
Saving orangutans before extinction in Sumatra
A loud crack echoes throughout the canopy as two young orangutans come tumbling down, grasping at branches along the way to break their fall. They recover and sheepishly scamper back up.
Anthropologist Claude Levi-Strauss remembered
Anyone who has taken an anthropology course has probably heard of Claude Levi-Strauss, who died recently at age 100.
Census will report same-sex couples, gay groups see opportunity
Peter Dziedzic and his husband, Jay Judas, aren't quite sure yet which of them will be designated the head of household when they fill out the 2010 census form in April.
Goodall: Chimps' plight inspired Jackson's 'Heal the World'
A famed primatologist says the plight of chimpanzees helped inspire Michael Jackson to write the song "Heal the World."
Archeologists unearth 'lost' mini Roman Coliseum
Under a canopy of elegant Italian pines, the foundations of a mini Roman Coliseum are at once unmistakable and exhilarating.
Stone circle suggests Stonehenge part of burial complex
Stonehenge, an enigma to visitors and scientists alike for so many years, became less of a mystery after a discovery announced to the world this week.
Oldest human skeleton offers new clues to evolution
The oldest-known hominid skeleton was a 4-foot-tall female who walked upright more than 4 million years ago and offers new clues to how humans may have evolved, scientists say.
U.S. immigrant population flat, Census numbers show
After nearly 40 years of recorded increases, the number of immigrants living in the United States remained flat between 2007 and 2008, recent statistics released by the U.S. Census Bureau show.
Tunnel links continents, uncovers ancient history
It's a common sight in the traffic-clogged streets of Istanbul, a city that straddles two continents.
'Massive' ancient wall uncovered in Jerusalem
An archaeological dig in Jerusalem has turned up a 3,700-year-old wall that is the largest and oldest of its kind found in the region, experts say.
Jackson's chimp Bubbles enjoys life out of public eye
Bubbles gained fame over two decades ago as Michael Jackson's simian companion. Now at age 26, Bubbles has retired to the Center for Great Apes outside Wauchula, Florida.
Astronauts pay respects to 'space chimps'
The chimpanzees could sense something was different.
Archaeologists show off rare Roman find
Archaeologists excavating a site in East London have made an "extremely rare and unprecedented" find -- a delicately detailed dish made of hundreds of pieces of tiny glass petals, the Museum of London Docklands announced Wednesday.
Charting the psychology of evil, decades after 'shock' experiment
If someone told you to press a button to deliver a 450-volt electrical shock to an innocent person in the next room, would you do it?
CNN Student News One-Sheet: Women's History Month
March is Women's History Month, a federally recognized, nationwide celebration that encourages all Americans to reflect on the ways in which women have shaped U.S. history. But how did this celebration come to be, and why is it held in March?
Economists: Just get through next 6 months
A survey of leading economists finds them now forecasting a far deeper and more painful recession ahead in the first half of the year, but a modest pickup in the second half of 2009, followed by a solid recovery in 2010.
Economists see deeper pain, followed by gain
A survey of leading economists finds them now forecasting a far deeper and more painful recession ahead in the first half of the year, but a modest pickup in the second half of 2009, followed by a solid recovery in 2010.
Official: Even chimps in tutus can be vicious
Images of chimpanzees on television or in the movies depict cute, cuddly and smart animals. So it's no wonder that some people, perhaps those with exotic tastes, may seek them out as pets.
Crime labs need major overhaul, study finds
Those slick, intricate tests used by forensic investigators on shows like "CSI" look infallible, but that is the stuff of television. In the real world, forensic tests are much more ambiguous and rarely demonstrate a definite tie between an individual and a crime.
Therapists seeing more 'collateral damage' from economy
Stacey Rosenberg, a former marketing manger in Boston, knows the catastrophic feeling of a layoff. She has lost her job twice in the midst of the recession.
Saving Easter Island
It's the tail end of the rainy season in the farthest reaches of the South Pacific, and a wind-blown mist falls on the planet's most remote civilization, Rapa Nui, known as Easter Island. Sonia Haoa, a 55-year-old native with olive skin and a long ponytail pulled through a baseball cap, pokes the earth with a walking stick as she considers the scene before her.
Satellites unearthing ancient Egyptian ruins
Archaeologists believe they have unearthed only a small fraction of Egypt's ancient ruins, but they're making new discoveries with help from high-tech allies -- satellites that peer into the past from the distance of space.
Britain's oldest human brain unearthed
Archaeologists have discovered what they say is the oldest surviving human brain in Britain, dating back at least 2,000 years to the Iron Age.
Archeologist finds 3,000-year old Hebrew text
An Israeli archaeologist has discovered what he says is the earliest-known Hebrew text, found on a shard of pottery that dates to the time of King David from the Old Testament, about 3,000 years ago.
Really old money
The antiquities trade has been making headlines, and they are weird ones: "Eulogy for the Euphronius Krater." (What in the world is a "krater"?) "Museum to Show Off Fake Egyptian Sculptures." (That's ridiculous, isn't it?) "Antiquities Dealer Gets Prison Time." (A nice old man with a pince-nez comes to mind, dragged off to the clink for some tragicomical offense, no doubt.)
Psychologists Vote Down Interrogation Role
The nation's leading psychologist's association has voted to ban its members from taking part in interrogations at the prison at Guantanamo Bay, Cuba, and other military detention sites
4,500 Years: Egyptian Boat Located
Archaeologists will excavate hundreds of fragments of an ancient Egyptian wooden boat entombed in an underground chamber next to Giza's Great Pyramid
Artifacts from 1700s Found in NOLA
The first archaeological dig at one of the nation's oldest cathedrals has turned up a mix of new finds in the heart of the French Quarter
Archaeologists find remains of Washington's boyhood home
After nearly three years of excavation, archaeologists have confirmed the discovery of the site of George Washington's boyhood home near the banks of the Rappahannock River in northeast Virginia.
Study: Orangutan Populations Declining Sharply
Orangutan numbers have declined sharply on the only two islands where they still live in the wild and they could become the first great ape species to go extinct if urgent action isn't taken
American grad student dies in Iraq
An American graduate student who went to Iraq to find ways to help ordinary citizens persevere in a transitioning government was one of two American civilians killed in a Sadr City bombing.
Researchers Find Monkeys That Fish
Groups of long-tailed macaques were observed four times over the past eight years scooping up small fish with their hands and eating them along rivers
Egypt Uncovers Pharaoh's 'Missing' Pyramid
Egyptian archaeologists unveiled on Thursday a 4,000-year-old "missing pyramid" that is believed to have been discovered by an archaeologist almost 200 years ago and never seen again
Study: Stonehenge Once a Burial Site
England's enigmatic Stonehenge served as a burial ground from its earliest beginnings and for several hundred years thereafter, new research indicates
8 ways to be a happier mom
Ask a mom if she's happier now that she has a child, and she'll usually say yes. But psychologists who study happiness often report a different picture. Being the mom of a young child (especially one under 3) is rewarding, but also a real strain on your mood.
Ancient war booty finding its way back to Iraq
Stolen by smugglers and now returned to the cradle of civilization.
Neanderthal man speaks after 30,000 years
It's been 30,000 years since Neanderthals walked the earth, but now we can hear what they sounded like, according to a Florida anthropologist.
Ancient Tools Unearthed in Australia
Tools dating back at least 35,000 years have been unearthed in a rock shelter in Australia's remote northwest, making it one of the oldest archaeological finds in that part of the country, archaeologists said Monday
Jesus 'Tomb' Controversy Reopened
A Jerusalem conference convened by a Princeton theologian reexamines claims that the body of Christ was buried on Earth
Excavation adventures in the Valley of the Kings
A few years back, when I was working as part of an archaeological mission in the Valley of the Kings in Egypt, I unearthed a slab of white limestone covered in ancient paint smears. More of that later. First, however, I should tell you about the 3,000 year-old gold jewelry.
Anthropologists on the Front Lines
The U.S. military is ramping up a program to embed social scientists with its troops in Iraq and Afghanistan. It has resulted in some successes -- and a bitter academic feud
Hotshot monkeys* in science
It's a common theory that, given enough time (and food ... and ink ribbon), a million monkeys on a million typewriters will eventually bang out the works of Shakespeare. But that only goes for average monkeys.
Plundering the oceans: Who rules the waves?
A sunken galleon, modern-day treasure hunters, a fortune in silver coins and the Spanish navy.
Mental Help for Mets Fans
The New York Mets just finished the worst collapse in baseball history. How should sports fans deal with disaster?
The Hassles of Having Lucy in Houston
A fabled fossil goes on view for the first time in decades -- and ignites a controversy
Human footprint may be oldest ever found
Egyptian archaeologists have found what they said could be the oldest human footprint in history in the country's western desert, the Arab country's antiquities' chief said on Monday.
Fossils Paint Messy Picture of Evolution
Surprising fossils dug up in Africa are creating messy kinks in the iconic straight line of human evolution with its knuckle-dragging ape and briefcase-carrying man
CSI Too Close to Home
Sure, forensic science makes great TV, but Texas residents oppose a plan for a "body farm" in their neighborhood
Review: Creepy 'S.T.A.L.K.E.R.' returns to Chernobyl
While it didn't make the papers, the Chernobyl nuclear power plant disaster in 1986 spawned an army of zombies bent on destroying humanity.
How to be a happier mom: 8 ways to focus on the positive
Ask a mom if she's happier now that she has a child and she'll usually say yes. In fact, around the world, children top the list of the most enjoyable things in life. But psychologists who study happiness -- a new field in the past decade -- often report a different picture.
Jane Goodall Talk Asia transcript
AS: CNN's Andrew Stevens JG: Jane Goodall
What makes us human
(Time.com) -- You don't have to be a biologist or an anthropologist to see how closely the great apes -- gorillas, chimpanzees, bonobos and orangutans -- resemble us.
5 hot products for the future
(Business 2.0 Magazine) - Trendspotting is serious business. So much so that the Institute for the Future, a Palo Alto-based think tank, produces an annual 96-page 10-year forecast - an exhaustive compendium of societal and technological trends, widely regarded as the bellwether of long-range planning.
Big Sellers From the Future?
TRENDSPOTTING IS SERIOUS BUSINESS. SO MUCH so that the Institute for the Future, a Palo Alto-based think tank, produces an annual 96-page 10-year forecast--an exhaustive compendium of societal and ...
Women's History Month
March is Women's History Month, a federally recognized, nationwide celebration that encourages all Americans to reflect on the ways in which women have shaped U.S. history. But how did this celebration come to be, and why is it held in March?
Forensic psychologist: Arsonist may hold grudge
Authorities are scrambling to find out who set churches on fire in rural Alabama. Nine fires appear to be linked: Investigators ruled five Baptist churchs near Birmingham found burning on Friday were deliberately set, and four Baptist church blazes on Tuesday were suspiciously similar to those.
Find the right sports program for your kids
When it comes to signing your child up for a sports program, look before you leap.
What money type are you?
Prepare to meet your unconscious mind. It could be the best acquaintance you make this summer.
Chimps 'could hold key' to HIV vaccine
A geneticist from the University of Nottingham has told an HIV Aids conference in Durban, South Africa, that a group of threatened chimpanzees could hold "vital clues" in the treatment of the disease.
Getting to Know You
Stan is a hands-on sort of guy. The entrepreneur's day starts at 7:30 A.M., when he gets into work and checks his e-mail. At 8:30, Stan starts preparing for the daily 9 o'clock sales meeting. The r...
Then & Now: Jane Goodall
She began her career with no academic credentials, but decades later, Jane Goodall has evolved into a world-renowned primatologist who teaches young people about environmental protection.
Fossil may be ancestor of humans, apes
Scientists in Spain announced Thursday that they've unearthed a 13 million-year-old fossilized skeleton of an ape that is possibly a common ancestor of humans and great apes, including orangutans, bonobos, chimps and gorillas.
Scientist: Man in Americas earlier than thought
Archaeologists say a site in South Carolina may rewrite the history of how the Americas were settled by pushing back the date of human settlement thousands of years.
Sudan's treasures uncovered
Today Sudan presents the picture of an Islamic government at odds with the rest of the world.
Titanic artifacts go on display
Previously unseen artifacts recovered from the wreckage of the Titanic by a team of explorers are to go on display in Britain.
Smuggled artifacts worth $1M returned to Peruvian government
Forty-one artifacts estimated to be between 2,000 and 3,000 years old and worth more than $1 million, were returned to the Peruvian government Friday by the U.S. government.
Chimp youngsters a lot like humans
Check out a day care center or ask parents raising boys and girls: Many will say little boys and little girls learn and do things differently.
Scientists: Hard heads a key to survival
Get it through your once-thick skull. Scientists say the bulky craniums of the human ancestor, homo erectus, may have helped the species survive some aggressive mating rituals.
Getting Inside the Boss's Head A new generation of psychological tests goes beyond an executive's personality to root out corpor
Just how nutty are bosses? Psychologist Robert Hogan has administered personality tests to well over a million people in the past three decades and claims that at least 55 percent of managers in Am...
Does This Man Need a Shrink? Companies are using psychological testing to screen candidates for top jobs. But should a shrink de
Bruce Wong was a recruiter's worst nightmare. He liked his job as a clinical scientist at SmithKlein Beecham and had no desire to leave. Wong had agreed to interview at archrival Bristol-Myers Squi...
So You're a Player. Do You Need a Coach? The hottest thing in management is the executive coach--part boss, part consultant, par
Since Mary Bradford took over as sales manager of the New England region of Met Life's resources division a year ago, her sales office has acted more like a New Age institute than an old-line insur...
Addicted to Sex A PRIMAL PROBLEM EMERGES FROM THE SHADOWS IN A NEW--AND DANGEROUS--CORPORATE ENVIRONMENT.
"Most of my patients are CEOs or doctors or attorneys or priests," says Patrick J. Carnes. "They are people with a great deal of power. We have corporate America's leadership marching through here,...
CRIMINAL PAYOFFS, HOW TO KNOCK OUT SENATORS, THE AWFUL TRUTH ABOUT BULLIES, AND OTHER MATTERS.
INVESTING IN PRISON
WHY SMART PEOPLE MAKE MAJOR MONEY MISTAKES MENTAL BLIND SPOTS CAN LEAD YOU INTO FINANCIAL BLUNDERS. HERE'S HOW
LAST DECEMBER, WHEN UNIVERSITY OF CHICAGO economist Richard Thaler was called to testify before the Senate Finance Committee about the nation's savings habits, his appearance threw a spotlight on a...
SO YOU FAIL. NOW BOUNCE BACK!
If ever there were a failure destined to kill a career, New Coke was it. Sergio Zyman was the marketing man behind the most disastrous product launch since the Edsel. Wounded, he left Coca-Cola a y...
BURNED-OUT BOSSES Managers are facing more painful tasks, like firing wave after wave of people. As a result, more bosses are lo
BECAUSE WE believe in you, we are raising your sales quota 20%. But your relationship with customers is already strong, so we're trimming your travel budget. Also, would you mind sharing your secre...
As grim crime scenes fill our newscasts and nightmares, Americans feel more threatened by violence than ever. But the surprising
THERE IS NO SAFE PLACE ANYMORE. That fearful message is driven home by the endless rat-a-tat-tat of pointless carnage that marks us as one of the world's most violent societies. Listen to the grim ...
THE EXECUTIVE'S NEW COACH Believe it or not, he (or often she) can help cure those little behavioral defects you suffer from and
I HATE MEMOS. My people know that. If a deal didn't go through, tell me face to face. Even when I get good news in a memo, I'm inclined to yell. I know I shouldn't. So I got a gadget, a mechanical ...
A line on clean air, conferring with the cosmos, incredible shrinking unions, and other matters. BABY TALK
We were sorry to see that the latest submission from the California Task Force to Promote Self-Esteem and Personal and Social Responsibility is labeled a ''final report.'' It seems that the esteeme...
WORKAHOLICS ANONYMOUS Spending so much time on the job that you're ruining the rest of your life? Some suggestions for managing
Sail a paper airplane out a window these days and you're likely to hit a person rushing to or from a gathering devoted to helping those in the grip of some sort of addiction. So-called 12-step prog...
WHY INVESTORS MISJUDGE THE ODDS Knowing the mental pitfalls may help you avoid them -- and lead you to some
THE FINANCIAL world, as any weather-worn veteran knows, is a muddle of risk and opportunity. Separating the two is not always easy. All too often, investments beckon with the promise of princely re...

real. Count among that group many defense lawyers who unquestionably have faith in their reality. I am not proposing that none of these events are false.

But if you think of common sense as like faith (a naturally felt belief in the way the world works in the absence of much empirical evidence), it is easy to see how difficult it might be to change common sense beliefs with scientific evidence. Some of these common sense beliefs are that just about anything has the ability to cause cancer; that exposure to any amount of a chemical can cause devastating injuries; and that single chemicals can cause multitudes of injuries. Is it really so hard to conceive of jurors being easily persuaded that exposure to welding fumes can cause Parkinson's disease and ignoring evidence that runs counter to that?

3. How many defense lawyers buy lottery tickets? Not all, I'm sure. But I'd also "wager" that many do. Some of these are the same lawyers that argue dose/response relationships to jurors and present them with risk assessments. These lawyers believe it is worth spending money for a less than one in several million chances to win the lottery, yet expect jurors to conclude that the one in a million chance of getting injured by a chemical exposure precludes the plaintiff from being that person.

When we add in superstition, habit, custom and tradition into the lives of defense lawyers we see that much of the thinking in which they engage in their every day lives is not commanded by the same logic and super rationality that commands their thinking in the courtroom. Most importantly, that type of thinking is clearly not what is required to negotiate the challenges of every day life. Non rational and illogical thinking patterns can be quite successful strategies in everyday life. They serve their purposes.

Conclusion

In everyday life, scientists and lawyers do not behave like scientists and lawyers. For jurors a trial is everyday life. They do not and will not reason like experts. To the lawyer and scientist, jurors may be making mistakes in their reasoning, but they are not. They are doing the reasoning of everyday life. How this is done with scientific evidence can be understood and consequently the evidence can be presented to them in a way that makes sense to everyone, lawyers, scientists, and jurors alike.

Article Source: http://www.upublish.info

About the Author:
David S. Davis
David S. Davis, PhD is a founder of and principal in R&D Strategic Solutions, trial consultants and jury consultants