By Hon. (Ret.) Ken E. Adair 
In Voir Dire, Ask About Frivolous Lawsuits
Video Transcribed: Plaintiff’s lawyers like to bring up or talk about the hot coffee documentary. And we all know the story, and if we don’t know the story, you need to look it up. The story is of a lady that got a huge, giant verdict, that was hundreds of thousands of dollars because she spilled hot coffee in her lap. And the judge reduced the judgment and it was all over the news. It was in every publication.
It was great fodder for the anti plaintiff’s bar that some woman got hundreds of thousands of dollars for spilling hot coffee on her self while she was driving down the road, none of which was true. And we all know that this woman suffered horrible injuries. She had to have skin grafts on her inner thigh and the inner vaginal area. It was a very, very graphic, very, very painful procedure.
And this particular store had been warned many times and it had many complaints about its coffee being too hot. And there are set guidelines. McDonald’s was pressuring, apparently, their franchisees too, or their stores, keep their coffee at a certain temperature and they just decided to go above and beyond a little bit to the detriment of this woman who was horribly injured. And I bring that up because that’s the truth.
That’s the story and it’s real. And you will hear jurors sometimes bring up frivolous lawsuits. And if you don’t voir dire about frivolous lawsuits, you need to voir dire about frivolous lawsuits.
And you need to raise your hand when you ask about who’s tired of frivolous lawsuits because you better be tired of frivolous lawsuits because they make us all look bad. You and I know they’re rare. They’re very, very rare, but they exist. And I’m tired of frivolous lawsuits, just like everybody else.
But every now and then someone would bring up that hot coffee case. And I used to be of the school, very briefly, that it’s an opportunity to educate the jurors. And I got an argument with the lawyer one time who said that that’s not the right approach. And I got real animated like I used to be and said, but you need to tell them the truth. They need to know the truth. What’s your job as a lawyer when you’re conducting voir dire?
Is it educating jurors and telling them the truth about the processor is it finding out who you can include on your jury? And I realized there was nothing to accomplish by arguing with a juror about their preconceived notions about this hot coffee case.
And instead, what you do is you say, I know, right? And then you go on with your voir dire and you just let it go. The absolute worst thing that’s going to happen is, in voir dire, if that person stays on the jury, then somebody is going to lean over to him and say, you know that hot coffee case, that woman was burned really bad, had skin grafts on her inner thighs and her vaginal area. And McDonald’s had been warned a bunch of times about that hot coffee and just wanted to let you know.
And so this juror’s going to think, well, what a nice guy that he didn’t try to correct me and embarrass me in front of all these jurors and it gives you credibility. And so the other scenario is that nothing’s ever said and it doesn’t matter. But why engage in an argument with a prospective juror when that argument doesn’t serve any purpose?
Jury voir dire should be about inclusion. That’s another topic for another day. It should be about inclusion, not excluding prospective jurors. Primarily. Now there are ways that you ask questions to identify the jurors that you don’t want.
Don’t identify the jurors that you do want, you ask questions and you frame them in a way to identify who you don’t want. But you don’t do that for the purpose of exclusion, you just make sure you don’t tell the other side in the form of your questions, who they want to get rid of.
Because you want everybody. You just want to include everybody that you possibly can. So again, I hope this video has been helpful. I’ll talk more about exclusion versus inclusion on the jury in another video, but I appreciate you very much. I look forward to talking to you again. Thank you.
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