By Hon. (Ret.) Ken E. Adair 
Build Your Case on the Facts, Not on Sympathy
Video Transcribed: We all know that we have to embrace the fiction that there is no insurance in a personal injury case. But, as I’ve said before, and I’ll say many times, there’s no piling on allowed. The injury defense bar will try to bring in evidence of poverty and charity to make it look like that the defendant doesn’t really have the ability to pay, which is not relevant. The relevance is, who caused the injury, how much are the damages, and that’s it.
And I voir dire a jury and a personal injury case. And I always voir dire about the fact that you don’t get to decide whether it’s ever paid. It may never get paid. It might be paid in full immediately. But none of that matters to you. All you’re going to decide is who’s at fault. And, as long as it’s 50% plus a molecule, you have to give complete justice.
So, for complete justice, you have to decide what the damages are and what value you’re going to place on those damages. And I voir dire about a whole lot of other things around that area. But I make sure they understand that it doesn’t matter whether or not the judgment ever gets paid. You just decide what the judgment is going to be. And then, the judge, and the lawyers, and the court will take it up afterwards.
But one of the things that the injury defense bar tries to do is they try to pile on by introducing evidence of poverty and charity. For instance, I had a case where I knew the lawyer was going to do this. I had not put it in my motion in limine yet, but it became a part of my motion in limine. Every time I tried a jury trial, criminal or civil, I would add two or three paragraphs to my motions in limine because they were necessary because I’d find new tricks that they would use. In this particular case, the injury defense lawyer asked the defendant, where do you work? I objected very nonchalant, very low key objection. Overruled.
She worked at a sandwich shop part-time. How much do you make? Objection, relevance. Overruled. She testifies that she makes minimum wage. Asks her, what does she do in her spare time? I object, relevance. Overruled. And she says that she goes to college part-time also. The next question is, outside of school to work, what do you do in your spare time? Objection, relevance. Again, the judge overrules my objection. Very low key, very nonchalant.
The judge getting very agitated at me at this point because the judge sees that I’m not wanting to let this stuff in. And I’m not getting irritated. I’m being very nonchalant. The judge is getting irritated with me. And he asks her what she does in her spare time outside of school work, she says, and I kid you not, I work at the soup kitchen down at the homeless shelter. And I can’t remember if it was John 3:16 or The Jesus House, whichever one’s in Tulsa. And I’m not making this up. You can’t make this stuff up. And so, he painted her as a person that has no money, is a part-time student, is very charitable, that actually works at a soup kitchen for homeless people.
And so, it became my turn to ask her questions. And I asked her, I said, so you think it’s important that the juror knows that you go to school, you make minimum wage, you’re a part-time employee, and that you work at a soup kitchen. Do you think that’s important for the jury? She goes, well, I don’t know. You’d have to ask my lawyer. And I said, you agree, it doesn’t have anything to do with the fact that my client was injured and whether or not it’s your fault and what the damages are. Do you agree with that? And she goes, I don’t know. You’d have to ask my lawyer. And I said you’re not suggesting to this jury that you don’t have the ability to pay a judgment.
And the opposing counsel objected vehemently and the judge sustained the objection. And kids don’t try this at home unless you got the guts to do it. But I said, in fact, ma’am, you could pay up to 100,000 dollars in damages. Loud objection on this side. The judge very loudly, gruffly summons me to the bench. And I walked up to the bench and the judge, it was Judge Gasset. He was ready to chew my head off. And he was just scowling at me.
And I said, judge, I objected to where she works, how much she makes. I objected to the fact that she goes to school, a part-time student. I objected to the fact that she works at a soup kitchen, all this evidence of poverty and charity. And you let it all in over my objection. And I think that it’s okay to embrace the fiction that there’s no insurance. But you let them pile on and I can’t stand for it. And so, that’s why I asked that question because you made it relevant by letting this in.
And he looked at the injury defense lawyer and kind of gave him a look like, he’s got you. And looked at me and said, let’s move on. So, he ultimately agreed with my point. But that became part of my motion in limine. Anytime you encounter one of the tricks of the trade, be sure and put that in your motion in limine.
But do not allow evidence of poverty and charity into your injury case. It’s not appropriate. It’s piling on. Embrace the fiction because that’s legal and the courts agree. And we all know intuitively that it’s kind of unfair to let insurance or the existence of insurance influence a jury’s verdict. But it’s equally as unfair, if not more unfair, to let evidence of poverty and charity in. Thank you for listening. Thank you for watching it. I look forward to seeing you again.
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