In the legal world, we use many words to talk about people and legal concepts which can sound intimidating: plaintiff, defendant, proximate cause. The plaintiff is the person “who initiates a lawsuit…”[i] The defendant is the person who allegedly wronged the plaintiff.[ii] The plaintiff must prove the defendant caused the plaintiff’s injuries and damages. “[P]roximate causation exists where the injury ‘results as a consequence so natural and ordinary as to be regarded as probable.’”[iii]

In legalese, the plaintiff alleges the defendant was the proximate cause of the plaintiff’s injuries and damages. If a jury agrees the defendant caused the plaintiff’s injuries, the defendant is held liable for those injuries, and must compensate the plaintiff accordingly. For anyone sued in a civil action, the question is how can a defendant avoid being found liable unfairly?

The legal system concerns itself with assigning liability for injuries and assessing damages. In a criminal case, the wrongdoer is punished. In a civil action, the wrongdoer compensates the injured party.  The law’s narrow view of “liability” can leave a large gap we routinely ask juries to fill. But there are some strategies we can employ to help juries understand that just because someone is responsible doesn’t mean they are liable.

Simply put, plaintiffs’ attorneys want to make jurors mad. They specifically want jurors angry at defendants (and their attorneys?). Angry jurors are more likely to award Nuclear Verdicts®.

One strategy Tyson & Mendes has employed successfully in many trials is taking responsibility. On the surface, liability and responsibility sound synonymous. How can someone be responsible but not liable? Legalese can make simple ideas appear complex. That said, jurors should have a chance to understand what is happening in the courtroom.

Consider rear-end collisions. In Florida, a driver who rear-ends another driver is presumed to be negligent.[iv] This “presumption that arises in rear-end collision cases is a legal construct that ‘arises out of necessity’ because the front driver in a rear-end collision is usually in a poor position to observe, and thus introduce evidence on, the cause of the collision.”[v] But even that presumption is rebuttable, meaning it “vanishes and loses its legal effect where evidence is produced from which a jury could conclude that ‘the real fact is not as presumed.’”[vi] In other words, even though Florida presumes the rear driver is liable in a rear-end collision, the defendant can overcome the presumption and have the case submitted for the jury’s consideration without it.

Taking responsibility for something, even in cases where it appears the defendant will inevitably be found completely liable for the plaintiff’s injuries, is a winning strategy.[vii] In Boyles, the “plaintiff was the front seat passenger in a utility truck driven by plaintiff’s co-worker, Mr. Poole, when it was rear-ended by a truck owned by A & G Concrete Pools and driven by one of its employees, Mr. Preece.”[viii] “Preece testified he never saw brake lights or reflectors on the truck prior to impact. Photographs of the utility truck showed that the taillights were covered in mud.”[ix]

The plaintiff claimed he was injured because of the accident, and at trial, defense counsel acknowledged to the jury that “while Preece had stated that he felt responsible, he also could not have seen the taillights.”[x] “Defense counsel asked the jury to be the judge of how much Poole, as driver of the utility truck, contributed to the accident, since the lights of the truck were covered in mud and Poole slammed on his brakes to come to a sudden stop.”[xi] After the jury returned a full defense verdict, absolving Preece of liability, the plaintiff “moved for a new trial, claiming that defendants had conceded negligence . . . .”[xii]

The appellate court concluded the defendants had not admitted liability at trial.[xiii] “While the attorney did appear to concede responsibility on behalf of Preece, he told the jury that it was their decision as to how much blame to assess to Poole, given the fact that Poole made a sudden stop and his taillights were covered with mud so that Preece could not see them.”[xiv] The appellate court correctly held that “[t]he jury could have determined that Preece was not negligent because of these other conditions.”[xv] Boyle is a perfect example of a situation where a defendant accepted responsibility for his actions, i.e., rear-ending the plaintiff’s vehicle, but was found not liable for the plaintiff’s injuries given the totality of the circumstances.

Takeaways

Taking responsibility at trial can be scary, because it sounds like inviting a jury to find the defendant liable. But what may initially appear to be a position of weakness is in fact the strongest position to take. Distinguishing between responsibility and liability gives jurors the emotional and factual tools they need to deliver defense verdicts and shut down Nuclear Verdicts®.

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Sources

[i] Cornell Law School, Legal Information Institute, https://www.law.cornell.edu/wex/plaintiff (last accessed Sept. 22, 2025).

[ii] Cornell Law School, Legal Information Institute, https://www.law.cornell.edu/wex/defendant (last accessed Sept. 22, 2025).

[iii] Graham Companies v. Amado, 305 So. 3d 572, 576 (Fla. 3d DCA 2020) (quoting Bosket v. Broward Cnty. Hous. Auth., 676 So. 2d 72, 74 (Fla. 4th DCA 1996)).

[iv] Birge v. Charron, 107 So. 3d 350, 359 (Fla. 2012).

[v] Id.

[vi] Id.

[vii] See, e.g., Boyles v. A & G Concrete Pools, Inc., 149 So. 3d 39 (Fla. 4th DCA 2014).

[viii] Id. at 40.

[ix] Id. at 41.

[x] Id. at 42.

[xi] Id.

[xii] Id.

[xiii] Id. at 47.

[xiv] Id. (emphasis added).

[xv] Id.