By Hon. (Ret.) Ken E. Adair
Patent Bias Is Obvious
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. Now I’ve talked about making eye contact, your demeanor, how you kind of mix up your questions, you don’t go down the line and some other aspects of voir dire in a civil case.
And I talked about the difference between a challenge for cause and a peremptory challenge and how philosophically and ultimately it is for the same reason that is that you identified jurors who have bias such that they can’t follow the law.
And the importance of the difference between patent bias and latent bias is this. Patent bias is obvious. That’s just so obvious. It’s just right there. And like I’ve said in the past, that a challenge for cause presents itself to you in the process of engaging a juror who’s willing to engage with you.
You’ve established eye contact, you’ve established a connection. You’ve made them feel safe because you honest to God care what they think and why they think it. And there’s no danger. It’s a safe place. There’s no danger in them opening up to you.
And then they say something and you just look at them, you thank them or you just at least honor them with your demeanor. I actually tend to thank jurors when they say something that I don’t like and I thank him for having the courage to say it, knowing that I probably didn’t want to hear it. And it sounds contrived and it’s something I learned. But man, it’s so true when a juror told me one time that she thought all plaintiff’s lawyers were greedy and I’m a plaintiff’s lawyer, and I’m standing right there in front of her.
Now before that day before I had learned from a lawyer out in California about this issue. Under every rock of fear is a pot of gold. He taught me that and he’s a brilliant, brilliant lawyer and a great friend told me that. And I looked at her and I said, “Man, thank you so much for saying that. I know that was hard for you to say.” Helping her save face a little bit. “I know that was hard for you to say and I know you knew I didn’t want to hear it, but I appreciate you having the courage to say that.”
Now I think she was being a little bit of a jerk. I wasn’t sure, but she was adamant. And then I continued to ask her questions instead of running away from her and pretending or acting like I had something to hide. I didn’t. I was thrilled she said that to me. And I was able to have her stricken for cause.
That’s patent obvious bias. Latent bias is subtle bias. That’s where that the words coming out of their mouth and their facial expressions and their body language, but lie on one another. Something she said 30 seconds ago doesn’t match up what she said just now and now she’s making excuses.
You know they don’t belong on your jury. They can’t follow the law and they desperately want to be on the trial. They want to be in the jury that ultimately here’s the case and that’s latent bias. You can’t tell the judge, “Hey judge, did you see her eyes shifting back and forth?
Did you see their facial expression is indicating that she’s not being honest?” That’s latent bias. That’s where you don’t move for a challenge for cause. Don’t move for a challenge for cause unless it’s been handed to you and you have permission from the juror to do it.
Because then you have to understand these jury members, especially if you’ve had a couple of breaks, they’ve bonded, they go get sodas together, get coffee together, go have smoke breaks together. Now you have this jury that starting to bond and now you’re picking on one of their people. You don’t ask for a peremptory challenge unless you have permission to do it.
That’s my way of doing it. Also, it’s problematic because when judges limit voir dire, they either limit the time or they start… We have a court rule, District Court Rule 6 I believe here in Oklahoma, that puts a limitation on voir dire that I believe is inconsistent with the clear law of patent bias versus latent bias.
Bias is always relevant. You’ve got a witness on the witness stand, their bias is always relevant. It’s never irrelevant. And I think the same could be said about jurors. You need to research the law in your own jurisdiction. When judges limit voir dire, the first thing to go is your exploring latent bias. That is your own personal gut reaction is to what is going on there. Are they being honest? Do you believe they can follow the law as you see it and be a fair juror in this case?
So the first thing when a judge starts limiting voir dire, either time or the kind of questions you can ask, you need to kind of push back a little bit because you don’t want to lose that peremptory challenge. Because a peremptory challenge is as important if not more important than a challenge for cause. I mean the challenge for causes more obvious, but the latent bias is no less damning to your case, no less damning to the ends of justice than patent bias.
So understand that the difference between latent bias and patent bias, understand what the law says in your jurisdiction about patent bias and latent bias, and what your rights and obligations are with regard to latent bias. You have a right to know what jurors are not to be on that jury and what a judge limits you. You need to push back sometimes on the limitations they have and make sure that you have the law set up before you in your jurisdiction about what a latent bias is and what the rules are governing peremptory challenges.
Because if the purpose isn’t there if it’s just an exercise that’s striking jurors and you haven’t had a chance to explore, what good is it? It’s not a judicial economy when there’s no justice and that’s what judges like to say. It’s the judicial economy, that’s why I limit voir dire. I hope this has been helpful. Again, this is a little bit longer than some of my other videos. I look forward to talking to you some more.
I look forward to hearing some of your ideas about what you’d like to know now that I have to say about voir dire, whether it’s right or wrong, whether you agree or disagree with it, whether you think it may or may not work at your courthouse or your jurisdiction, I’d still love to hear from you. This has been trial attorney Ken Adair. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.