By Hon. (Ret.) Ken E. Adair 
Don’t Be Afraid to Ask the Question
Video Transcribed: Hi, my name is Ken Adair. I’m a people’s lawyer and I’m a retired judge, and I want to talk to you again about civil voir dire. Today, in this session, I’m going to talk about the car wreck case, just a general concept of a car wreck case.
Almost everything I voir dire about has something to do with something that I’m worried about. Typically, it’s how the jury panel out in society has been conditioned to believe things and have preconceived notions about plaintiff’s lawyers, injury lawsuits, lawyer advertising, contingency fees, the efficacy or importance or the utility of awarding money damages, those kinds of things. In almost every lawyer advertisement you see on TV it’s about car wreck cases. And so they always think of the car wreck cases is maybe the tip of the spear of the problem of frivolous lawsuits.
And those are my words. Those are my thoughts. But I perceive the jury panel as coming from a society that is preconditioned to believe that this is the problem when it comes to frivolous lawsuits, and rightfully so.
I mean, perception is the paradigm that we live in. When you watch TV, if you’ve ever had to stay home with a sick kid and you see the advertisements that come on during the day and you imagine these people sitting at home, they’re not thinking about filing a lawsuit.
Maybe they are, maybe they’re not, but all of a sudden they watch some lawyer advertisement and they’re like, “Oh, I may have a lawsuit. There may be a check-in it for me.” Now, whether this is true or not, or to the extent that it’s rare or not rare, it creates the impression in your jury panel that that’s what’s going on.
People are calling lawyers who otherwise wouldn’t have called a lawyer unless they saw some stupid ad on TV. I’m not calling them stupid. I’m just saying that’s their perception. Some of them are stupid in my opinion, but I’m not getting into that.
So I tell the jury, “So this is a car wreck case.” Now I’ve made eye contact, made eye contact with all of them, identified the ones that I think aren’t going to connect with me as well as some of the others.
And you just look for that look on their face like they’ve got maybe some cat mess up here and they can’t figure out where the smell’s coming from. That’s maybe a bad metaphor, but you look for that look. “And let’s talk about that. Does anybody here have any opinions just about car wreck cases in general?” And you’ll get them talking.
Don’t be afraid to talk about that. Because you’re there with a car wreck case, and you can pretend all day long that that paradigm I just talked about doesn’t exist. You can pretend that society doesn’t believe that this is the tip of the spear of the problem of too many frivolous lawsuits, but the truth is that’s where you are. So don’t be afraid of it. Get that out of the way and talk to the jurors about the fact that this is a car wreck case.
And you’ve got to talk about that right away because that’s where some of your latent bias is going to manifest itself. You’ve got to pay real close attention and ask them what they think about a car wreck case because it evinces an image, a feeling.
Maya Angelou says, “They may not remember what they said or what they did, but they’ll remember how you made them feel.” And I botched that quote, but that’s it. And so you bring up a car wreck and then you ask them, “What do you feel about that?” And they’re going to remember how they feel about all those car wreck commercials and what they think about the concept of a car wreck lawsuit. And some of them are going to roll their eyes as if to say, “This is one of those, right?” So you’ve got to keep looking out for that.
Don’t be afraid to ask that question. In fact, I encourage you to always ask that question. Get them talking about car wreck cases so you can start identifying some of that latent bias. You might find some patent bias.
So I hope this has been helpful. Look forward to talking to you some more. This has been trial attorney Ken Adair. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.
