By Hon. (Ret.) Ken E. Adair 
Do Not Offend the Jury
Video Transcribed: Hi, my name is Ken Adair. I am a people’s lawyer and a retired judge. And I’m going to talk to you about civil voir dire. In this video, I’m going to talk a little bit about how to frame a question. If you think about a question that you want to ask about a topic, let’s say the issue is can you give money damages for pain and stuff offering? And you can ask that question.
How many of you think it’s a great idea to give money for pain and suffering? How many of you think it’s a great idea? And the people that raise their hand are the people that your opponent is going to want to strike. They’re going to inquire further, try to get them off for the cause, or they’re going to at least make a note of that, and they’re going to be high on their list for peremptory challenges.
Now, you can ask the question. And you got to premise the question and frame the question in a way, and I always use my dad. My dad was a Colonel in the Air Force, B-52 pilot, very serious man, not frivolous. He was kind of the, “Suck it up, walk it off, get on with it, push forward, push through it,” kind of guy. He didn’t like whiners, complainers.
I’ve done criminal defense and civil cases. And in my criminal cases, he would be the guy my jury voir dire panel that would say, “Man, they must have done something wrong or they wouldn’t be sitting there.” Well, he’d never be on my criminal jury. He’d never be on my civil jury because he’d think, “Well, what are they whining about? Why don’t they just get on with their life?”
And the truth is, my dad is and was a very respectable person, very honorable. He was as principled as anybody I’ve ever known. Never heard the man lie to me ever in his entire life. And there’s nothing wrong with his opinions. They just don’t suit the law that we have to have a civil court that’s not like the OK Corral. So we have a civil court and we ask for jurors that can follow the law and give money damages for non-economic damages, things that money can’t fit. And that’s offensive. That’s obnoxious.
So you acknowledge that to the jury and let them know, “Hey, it’s not unreasonable to think that awarding money damages for pain and suffering is kind of offensive and obnoxious.” Then the law says that we’re supposed to do that here, but some people that’s just like, “No, that’s not right.”
So you ask the question how many of you would agree with my father or agree to this concept? How many of you would agree with my father that’s like, “You know, that just doesn’t seem right, giving money damages for something that money can’t fix. I mean, what’s the point?” And you identify those jurors.
You’ve asked the same question. How many of you think it’s a great idea? How many of you just don’t think it makes any sense and it’s a bad idea? You’ve polarized at least the issue, not the jurors, but you polarized the issue to where you’ve identified those that maybe you need to explore more, and the ones that you need to consider striking with a peremptory challenge, instead of identifying those that your opposing counsel wants to get rid of.
I learned that from a good friend of mine and a great mentor here in Tulsa, Oklahoma. And I went to a seminar of his and I learned that technique. A week later, I was trying my second ever civil jury trial. I’ve tried a bunch of criminal cases. It was my second ever civil jury trial in Oklahoma. And I got a $1.2 million verdict on an auto collision case.
And I remember using that voir dire technique. Now, I used a lot of stuff I’d learned at the trial lawyer college and I learned from my friend, David Smith down in Norman, Oklahoma, and other great mentors. But I had just learned that technique and I always framed my questions.
The first time in a jury trial that I ever framed my questions that way. And I learned a lot. It was very effective. Never offended the jurors. You embraced and respect and honor the people that come out and answer questions in ways that you wish they wouldn’t answer. But gosh, you need to know. You can’t shut off that faucet and that free flow of information from these jurors.
So I highly recommend that you learn how to frame those questions. You can frame it positively or negatively, but always remember that you can always a hundred percent of the time frame a question in voir dire to identify those that maybe you might have problems with, that you might need to consider striking for cause or peremptory, instead of identifying those jurors that your opposing counsel knows he wants to get rid of.
And chances are if you do this right, and it’s been my experience in a lot of cases, that the jurors always opened up more for me than they did with opposing counsel. Not all the time, but most of the time, they opened up more with me because I let them do that and I encouraged them to do that.
I hope this video has been helpful. It’s a little longer than the other ones. This has been trial lawyer Ken Adair. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.
