By Hon. (Ret.) Ken E. Adair
Get Rid Of the Jurors That Can’t Follow the Law
Video Transcribed: Hi, my name is Ken Adair. I’m a people’s lawyer and I am a retired judge. I’m here to talk to you some more about civil voir dire. I’ve talked to you about the opening parts. Talked about how your demeanor is to the jurors, how you frame questions, many other things about civil voir dire.
Today I want to talk to you about the importance of understanding a peremptory challenge versus a strike for cause. They are identical in desire. They are identical philosophically but they’re not identical in terms of execution.
A challenge is a determination by you and or the court that a particular juror is not capable of following the law as you see it. Every cause is for bias. Every; whether it’s peremptory or whether it is a challenge for cause, is for bias and I’ll talk about it in a video here later about patent bias versus latent bias but you have to understand that the purpose of a strike, whether it’s a peremptory strike or a strike for a cause that are identical reasons, identical purposes, so don’t get caught up in your questioning as to whether or not you’re going for a peremptory challenge or you’re going for a challenge for cause.
The challenge for cause is, you will learn eventually in this series, they kind of hand themselves to you. That a juror will say something. This is a juror that you know that you probably shouldn’t keep on the jury. They don’t believe in awarding money damages. They think that all plaintiff’s lawyers are greedy.
They believe the fiction that the only reason anybody ever goes to a jury trial is that the plaintiff’s lawyer didn’t get enough money. My gosh, I mean our own plaintiff’s lawyer ads kind of create that paradigm, that the jury panel lives within, where they think that’s what we’re all about.
And yes, it is a business model for us, but we still are only seeking justice by presenting the truth. So when a juror says, “I just don’t think it’s right to give money damages for a car wreck. They should pay for the car and maybe pay some medical bills and that’s it.” Well, that’s a strike for cause and they’ve invited themselves for you to invite them, to leave the jury. That’s a challenge for cause.
A peremptory challenge is the same thing but you can’t get that threshold where that juror is going to openly admit to the judge, or admit facts about their belief systems, that are going to convince a judge to strike them for cause, but they’re identical in philosophy and in purpose.
Get rid of the jurors that can’t follow the law. The law is there for a reason and it’s there because we don’t want the OK corral. We don’t want shootouts. We don’t believe in a system where we take a defendant in a car wreck case and duct tape their hands to a steering wheel and let our clients T-bone their car to let them know what it’s like. That’s not civil justice. This is civil justice.
Never pass up an opportunity to remind the jury that this is civil justice. This isn’t the OK corral. This is an Old West justice. As much as we romanticize and have nostalgia about the Old West, we don’t want it in society, right? We don’t want riots and mayhem. We want civility in a courtroom.
So understand that concept about the purpose of a challenge, peremptory, or a challenge for cause. It’s all about bias and you’re trying to identify either openly or in your own gut reaction, your own gut feeling, as to whether or not there is bias.