Dr. Ken Broda-Bahm is a trial consultant who publishes the blog Your Trial Message with excellent advice although focused on defense work, not plaintiff. I reviewed a lot of blogs about trial work and have found his to be reliable and informative even though his approach and focus is on conflict with plaintiff representation because the concepts are authentic. In a July 10, 2023, issue he wrote a blog “Voir Dire for the ‘Safetyist’ attitudes.” He indicates that a general attitude about expecting high safety conduct was more common than thought. He reports about a survey of 200 jury eligible people that indicated:
• 92% agreed companies should take every possible measure to ensure their products are 100% safe.
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• 83% agreed that products and pharmaceuticals should warn about every possible risk or side effect, no matter how small.
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• 69% say they would stop using a product if they read it might cause cancer.
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• 66% said that they had already stopped using a product due to health and safety concerns.
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Dr. Broda-Bahm suggests that the defense lawyer use voir dire to explore jurors who have extreme views about safety in three ways. For each of these, the follow-up should be “Tell me about that,” with an eye toward deciding the extent of attitude about safety.
Experience Questions
◦ Have you ever been injured due to what you saw as an unsafe product or situation?
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◦ Have you ever felt you faced an unacceptable risk due to an unsafe product or situation?
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◦ Have you ever stopped using a product due to safety concerns?
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◦ Have you ever left a location or situation because you didn’t feel safe?
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Agree/Disagree Questions
Another way he suggests asking is “Who agrees…” (which is better than “does anyone agree….”). He also suggests looking for those not responding and asking: asking, “I noticed you didn’t raise your hand, why not?”
◦ Who agrees that no risk is tolerable?
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◦ Who believes that it is possible to be fully safe in this kind of situation?
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◦ Who feels the government should be doing more to promote consumer safety?
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◦ Who believes that if a situation can be made to be fully safe, then it definitely should be?
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◦ Who agrees that if injuries occurred, that is enough to tell you the product is at fault?
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Forced-Choice Questions
A third way he suggests the issue can be asked about is by presenting one that asks jurors which of two polar attitudes they are closer to agreeing.
◦ Some people say zero risk is the goal, ’while others say that in order to live you need to accept some risks. Who is closer to the first view? Who is closer to the second?
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◦ If you had to prioritize one over the other, who would say product warnings are more important than common sense? And who would say common sense is more important than product warnings?
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◦ If an injury happens on a premises, some people feel that the owner is automatically at fault, while others would say it depends on whether that owner did or didn’t take reasonable care to avoid that injury. Who is closer to the first view? Who is closer to the second?
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The approach advocated by a “Reptile” trial theme rests on the idea of safety and the rules for safety. Consequently, plaintiff attorneys should be aware of the reason and significance of questions like this in voir dire.