By Hon. (Ret.) Ken E. Adair
We’re All Egocentric
Video Transcribed: I talked some time ago about the idea that you can’t put things aside, jurors can’t put things aside, they can’t take a traumatic memory or a traumatic event, being a victim of a crime … Or I think the example I gave was a woman whose favorite niece had died in a car wreck where a drunk driver had taken that niece’s life. And sometimes the judge will try to rehabilitate that juror by asking, can you put that aside? And there’s no place to put that aside, that memory is there, the trauma’s there, the pain is there and it doesn’t go anywhere. You address that.
The other issue that I brought up in that video, in the beginning, and I wanted to do a separate video about is, can you be fair and impartial? Why is that a dumb question? Why is that a question that I hope you never ask a juror ever in any context, civil or criminal? Can you be fair and impartial?
We’re all egocentric. We all think with our own minds, we all have our own values. We have our own life experiences. And good and decent people can disagree. I used to talk about my dad at jury board, and I’ll probably do it again, God rest his soul, he’s gone now.
My dad probably couldn’t have ever served on any of my juries as a judge or a lawyer because my dad assumes that they must’ve done something wrong or they wouldn’t be sitting at the defendant’s table in a criminal trial, must’ve done something wrong.
Getting hurt because of somebody else’s negligence. Safety is no accident, there’s no such thing as an accident. Somebody gets hurt because of somebody else’s negligence my dad’s going to say, well, just suck it up walk it off. Just pull yourself together, get over it. Life is hard sometimes.
And that was my dad. He was a military guy and a war hero, and a great principled man, nothing wrong with him whatsoever, but he could have never been on any of my juries. Keep in mind that just because somebody thinks they’re fair and partial, doesn’t tell you anything. It tells you zero.
What are their notions of fairness and impartiality? Well, there’s a lot of things. In a civil case, what are their notions of fairness and impartiality? You’re just going to have to refer to some other videos I’ve done, or do your own research, but are they capable of awarding money damages for things that money can’t fix?
That’s a requirement in a civil lawsuit. If somebody is not capable of giving money as compensation for things that money can’t fix, they can’t be on your jury. That’s a strike for cause. When’s the last time you did that or seen somebody do that?
Because that’s what the law requires is money damages for not only economic damages, things you can put price tags on, but noneconomic damages, things you can’t put price tags on like mental anguish, pain, and suffering, lying awake at night with a broken rib, and every time you breathe instead of 15 or 16 times a minute, it’s 25 or 28 times a minute because you’re breathing fast. And every time you breathe, it feels like you got stabbed with a knife in the chest. You can’t fix that. You had to experience it, but they got to pay for it.
Future pain and suffering, things that you can’t put a price tag on, you’ve got to try. In a civil case, one of the most difficult concepts that the law requires is that you find, by a preponderance of the evidence, that’s 50% plus a molecule, you can’t discount the judgment and you can’t discount the award based on how your certainty is. Once you cross the threshold, you got to give a hundred percent damages.
If you don’t care if they think they can be fair and impartial, because they’ll think it’s not fair to not discount the damages based on their certainty. And so they can’t be fair and impartial under the law. They can be fair and impartial in their own mind.
But what you want to know is what their notions of fairness and impartiality are and to see that it complies with, and comports with the law and that they can do their duty as a juror in your case. In a criminal case, the presumption of innocence.
That’s easy to say, there’s a lot of armchair quarterbacking going on injuries and criminal cases. I can give the presumption of innocence, I believe in it. And not for one second during the trial, did they give a presumption of innocence because you didn’t properly about it and test their ability to believe the notion that you must accept as true the proposition that this person is innocent unless, not until, but unless the state proves them guilty beyond a reasonable doubt, each and every element of the crime.
You have to qualify a jury. If the range of punishment is two to life and the jury says, no, I wouldn’t give anything less than 20 years for that crime, well, the law says that you got to keep an open mind as you sit here today, in this kind of case, the range of punishment is going to be a few years in prison to life in prison and you have to consider the full range of punishment or you can’t be on it. This is the analogy, or the analog, to death qualifying a jury.
The juror must be able to, at least in theory, from the beginning of the trial, be able to give the full range of punishment in the case. If you don’t care if they think they can be fair and impartial, test their notions of fairness and impartiality with what their duties as a juror are ultimately going to be.
I hope this has been helpful. Look forward to talking to you again. Leave your comments, if you have anything you want me to do a video on, or if you have any questions about what I’ve said. Don’t ask me legal questions about briefs and cases, and that sort of thing, we’re all lawyers and we can do our own legal research, but if you have any questions about the concepts let me know.
And if you’re going to tell me, we can’t do that in my courtroom, well, you can do it until you can’t do it. And that’s true for all of my videos. I wish you the best. Thank you for listening. I look forward to talking to you again soon. This is trial lawyer Ken Adair speaking on The Fiction of Fairness and Impartiality. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.