I was in a big-box store the other day. Two girls, probably 6 or 8 years old, were out of control, running around while their mother tried on shoes. When, inevitably, one of them knocked over a display stand, she turned to her mother and said “It’s OK, it was just an accident.”
If you have been injured as a result of the negligence of another person or corporation, there is a word you need to purge from your vocabulary. You should delete it from your conversation and from anything you write down; it should be banished from your very thought process. That word is “ACCIDENT.”
Words matter. The “A” word has a double meaning. Unfortunately, it is often used as a convenient way to refer to an event that caused harm, as in “I was going to the store on the night of the accident,” or “I hurt my back in the accident.” HOWEVER, from my experience of talking to thousands of jurors and focus group participants, I have learned this absolute truth: to most people, “accident” is a judgment about moral fault, and there is no moral fault when an “accident” happens. What the little girl in the store wanted her mother to believe was “I don’t deserve to be punished because I didn’t mean to do it.” She wanted to escape the consequences of her bad behavior, even though it was her intentional bad behavior and her bad choices about how to conduct herself in the store that were the real causes of the crashed display.
To most people, “accident” means an event for which no one is legally at fault. Let me repeat that: when you, your spouse, your friends, or your doctors refer to the matter at hand as “the accident,” you are communicating that what happened is one of those things for which no one is at fault, which means, no compensation is due to the injured person.
Here’s a real-world example: I was conducting a focus group in a case involving the grievous wrongful death of a child. I played a portion of the video deposition of the defendant that plaintiff’s counsel thought was the most powerful evidence against the defendant. In that clip, however, the plaintiff’s lawyer, the defendant’s lawyer, and the defendant all repeatedly used the phrase “the accident” when talking about the event. When I asked the panel what they thought about the defendant’s testimony, the first comment was “Why are we here?” When I asked the juror what she meant by that, she said “Everyone said this was an accident. Why are we here; there is nothing to decide.” Game over.
Over and over, I have seen jurors think about fault as a continuum of moral blame. On that continuum, every time, “accident” is a lower degree of fault than “negligence.” This is big trouble since, as they are constantly told in trial, “the plaintiff has to prove negligence to recover.” In fact, according to the law, a rear-end collision on a wet road is a wreck caused by negligence. Many people, however, start out with the belief that this type of wreck is “just an accident.”Don’t feed that belief. Wrecks are preventable. Bad products are preventable. Under the law, few things are truly an accident.
Contributing to this is a “There but for the Grace of God go I” mindset. Not only do jurors not want to live in a world where they can be doing everything right and get injured through no fault of their own, they don’t want to live in a world where they could be held accountable for the kinds of things that “just happen.” Accidents can happen to anyone; jurors don’t want to establish a precedent for rewarding someone who sues over an accident.
Defendants win cases by: (1) blaming the plaintiff; (2) shifting the focus to a third party; and (3) distorting reality.
The “A” word is a classic distortion of reality. Things are rarely accidents. You were not hurt “by accident” when someone decided to drive a car too fast on a wet road, or when a manager cut back the staff in a nursing home so that a patient has to choose between risking a fall by trying to get to the bathroom by themselves or soiling their bed.
Jurors walk into the courtroom with a belief that many things that happen are accidents. Add to that existing belief the phenomenon of “confirmation bias.” This is the tendency of people to see the world through a filter. We absorb information that confirms what we already believe, and require serious, serious proof of anything that challenges what we already believe.
Since jurors believe that most bad things are “accidents,” your use of that word fits right into their belief system. You have just created this dynamic: “I believe that no one is at fault for an accident, I think most things are accidents, you just told me this was an accident, that fits into what I believe, that reinforces what I believe, thank you.” And now, because you have reinforced what they believe, the burden of proof required to push this “accident” into a compensable event is somewhere out there beyond the moon. Game over.
Don’t play the defendant’s game or the insurance company’s game. You are entitled to compensation because of all of the negligent decisions that led to the final, terrible, preventable harm. Removing the word “accident” from your vocabulary will better enable everyone to focus on why the event occurred rather than be distracted by their belief that “accidents happen.” “Accidents” don’t happen.
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