Trial Magazine
Good Counsel
Exposing Defense Excuses
April 2017The defense that “it would have happened anyway” is almost always nothing more than an excuse to escape responsibility. It’s like the rationalization that “accidents happen” or “it’s a risk of the procedure.” It is a claim that “even if I had done the right thing, it wouldn’t have mattered.” But you can counteract this argument so jurors aren’t swayed against your case.
Never ignore the defense’s excuse. Silence will be interpreted as weakness or tacit admission. The best way to respond is to take a commonsense approach. When dealing with the defense’s excuse, keep two principles about logic in mind: Occam’s razor (when there are several possible explanations, the simplest and most obvious is probably the right one) and the zebra principle in medicine (when you hear hoofbeats, it’s probably a horse and not a zebra).
When you address the excuse, don’t make it the central issue in the case, but frame it as the defendant refusing to accept responsibility and repeat that frame throughout trial. Start in jury selection—point out the defendant’s excuse and start a discussion among jurors about the importance of taking responsibility for one’s actions. In your opening statement, describe the evidence you will offer about why the event happened and why it was the defendant’s responsibility.
Continue this theme with the evidence and testimony you offer, particularly through experts. In your closing, again attack the defendant’s refusal to accept responsibility. Point out that we teach our children to take responsibility for their actions instead of making excuses.
Exposing this defense tactic is like revealing the fake wizard at the end of “The Wizard of Oz.” When the curtain is pulled away, the wizard cries out,
“Pay no attention to that man behind the curtain.” Defendants are no different—you need to expose their true intentions.
Paul Luvera is the founder of the Luvera Law Firm in Seattle. He can be reached at paul@luvera.org.