By Hon. (Ret.) Ken E. Adair 
Every Answer You Get Is a Gift
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. As I said before, many times, most of the time at voir dire. I talk about things that I’m concerned about that the jury panel has been conditioned to believe or their preconceived notions about. One of them is contingency fees. A lot of lawyers, our eyes get big when I tell them that I have voir dire about contingency fees.
And I have to, because no matter what you do in the personal and jury world, if you have contingency fees, that you skim off the top of people’s justice. And you skim off the top of their misery, and that’s part of your business model, whether you like it or not. And the jury panel knows that everybody in society because they’ve seen all these lawyers’ heads been in a wreck, I’ll get you a check, right?
You don’t have to pay anything unless we get paid. We’ll put all the work out there and we’ll front the money and we’ll go to bat for you. So society knows about contingency fees, and you would like to think that they understand the utility of contingency fees, but they don’t always. It just sounds kind of intuitively disgusting that that’s how this process works.
And they haven’t really thought of it much except other maybe then to think, “Well, you know, lawyers are on the bottom three rungs of the ladder of public trust with politicians and used car salesman.” That’s what they think. And so you’ve got to talk about that.
Talk about contingency fees. How many of you ever heard of a contingency fee? What does that mean to you? Anybody here thinks that contingency fees are a bad idea, and you’re going to get some hands and ask them to explain why.
And just be grateful for every answer you get. Every answer you get is a gift, even if it’s bad if it’s terrible, not something you want to hear and you’re afraid they’re going to taint the jury pool. They’re not going to taint the jury pool. You’re going to ask the jury panel at some point.
Can you think of a reason why it might be a good idea? And you’ve got 12 to 18 people there, sitting there, that is going to start crunching the numbers in their mind. And somebody is going to raise their hand.
If you just sit there and just tough out the silence, as long as you’re asking a legitimate question and you’re asking it in the right way, and you’ve connected with the jury and you’ve created a safe space. The jury’s going to come out and help you.
And somebody is going to raise their hand. They’re going to say, “Well, you’d think about it. If it was a bad case, nobody would take the case, right? Why would you invest your time and your money and effort to come to trial and try a case that you know is a loser?”
So it seems like it would kind of weed out the frivolous lawsuits and you just think if somebody else feels that way, anybody feels differently. And get the jurors crosstalk, but voir dire about contingency fees.
It’s in your best interest. Now I don’t do it. I don’t promote it. I don’t go after it. But in the back of my mind, it makes me feel better. And I don’t know that it’s ever happened. I’ve never got a verdict that I thought was a hundred percent just. I never thought it was enough. And by the time I get my fee and take the expenses out, it’s never enough.
But always in the back of my mind, wonder if maybe someday that a jury panel is going to be like, “You know, that lawyer is going to be taking some off the top. Let’s give him some extra to cover the attorney fees.” I don’t think that’s ever happened. I would never articulate that.
I’d never do it subtly, insidiously, or any of that way. But don’t be afraid of it because it’s the right thing to do, is to voir dire about contingency fees. Get them to thinking about it and understanding why it has to be that way, and even if they give your client complete justice.
It’s not going to be complete justice. So they’re going to work really hard if they end up on this jury panel and you have even a halfway decent case. They’re going to work to give your client as much justice as possible.
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.
