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Med Mal Voir Dire


  1. Does anyone have a medical reason or personal hardship that would make it difficult to serve as a juror in this case?
  1. Does anyone have difficulty reading, hearing, or understanding the English language?
  1. Does anyone know or has anyone dealt with the plaintiffs, the defendants, or their attorneys? If yes, please identify the person you know or have dealt with, the nature of your relationship, and whether that relationship would hinder or affect your ability to give a fair trial to all of the parties in this case.
  1. Does anyone know, or has anyone had any business dealings with, any of the witnesses who have just been identified by counsel? If yes, please identify the person you know or have dealt with, the nature of your relationship, and whether that relationship would hinder or affect your ability to give a fair trial to all of the parties in this case.
  1. Now that I have discussed the different burdens of proof in criminal and civil cases, does everyone understand those different burdens?
  1. Has anyone here previously served as a juror either in a criminal or civil case? If yes, has your previous experience as a juror affected your ability to be fair to all sides in the case?
  1. Has anyone here served as either a state or federal grand juror? If yes, has your previous experience as a grand juror affected your ability to be fair to all sides in the case?

this is a very big and a very important case. This is a case about injections for profit by a doctor that was greedy and ill informed and because of it his client suffered and the damages we are seeking are money ones.

“Being a good juror and a good citizen means that if this case is not the right one for you to serve on, just let the lawyers and Judge know.”

Tell the jurors there are no right or wrong answers to the questions you will be asking. All that you are asking of the jury is that they be honest and forthright in their answers.


– Medical Malpractice case, anyone believe that this is not the right case for them?

  • This is not a criminal trial, no one is going to be convicted of guilt or lose their license. This is a case of a doctor that talked a client out of what she wanted and into getting injected with a dangerous drug he admittedly knew very little about. He wants you to pity him rather than hold him to standards of other doctors.   Ever have a child and they could sponges—-lawyers like me did that. Ever have 5 doctors ask you which hip you are having replaced just to be sure? I did that.

We don’t want your sympathy for our client. We also don’t want you to have sympathy for this legal professional– we want you to hold him to the standards of care appropriate.

– Anyone here ever have a problem with finding a doctor committed malpractice? What problem?

– Anyone here think doctors are beyond intelligent and if they make a mistake, all is forgivable?

  • Have you, or any close family member, ever studied medicine (or nursing)?
  • Have you, or anyone in your family, ever worked for a doctor or medical care practitioner?
  • Do you have any relatives who are nurses, doctors or health care providers?
  • Do you have any training or experience with (the particular treatment or injury involved with the case)?
  • Have you had any particularly good or bad experiences with doctors yourself?

Have you or any close friends or family ever brought a case alleging medical negligence?

– Does anyone have the opinion that “you win some, you lose some”?

– believe that a hospital has an obligation to protect patients?

– even against careless doctors?

– has anyone had a doctor be abusive or dismissive of them?

– has anyone ever seen a loved one treated unfairly? Were they hurt as a result??

-Anyone believe you try to do something cosmetically and you get what you deserve?

Anyone intimidated by the prospect of judging the conduct of a doctor, preferring instead, as a layperson, to demur to the superior knowledge of a medical professional.

Psychologists say jurors don’t want to find for Plaintiff’s as it is an acknowledgment that they too can be injured by doctors they hire to treat them. Are you strong enough to acknowledge how helpless we are and how are at the mercy of doctors?

You must introduce the concept that applicable standards and practices govern health care and ensure that jurors will listen to whether or not those standards were breached in your case. Ask jurors if they agree with this statement: Doctors who fail to act in accordance with good and accepted practice should be held liable for those actions, even if they say they used their best judgment?

Do you like people who refuse to be accountable even when you rub their nose in it? Isnt’ that what kids today are learning? Never admit wrongdoing?


– how do you tell when someone may not be telling the truth when they are testifying?

– demeanor, inconsistencies with physical evidence, prior testimony or statements, other witnesses, common sense

– motive to lie, prior actions that led up to event

-saving oneself

– Money motive.

– employment, expertise, background, education

– Understand that is my job? Not trying to hurt him, just get to truth


Can missing evidence be some proof of guilt or cover-up?

There are missing records and missing evidence, hidden by the doctor as he didn’t want to be held accountable here in court.


– As the Plaintiff, we have the burden of proving our case by a preponderance of evidence

– preponderance means more likely than not, in other words, if you believe the proof is 50/50 for the Plaintiff and Defense, you would have to find for the Defendant.

– However, if you believed the proof is 50.1% likely that Plaintiff proved his case and 49.9% likely that Plaintiff did not, you would have to find for the Plaintiff

– does anyone think that Plaintiff’s burden should be higher than that?

– The Defendant may ask you to accept that they have an Affirmative Defense to one or more claims. The burden of proving an Affirmative Defense is on the Defendant, in other words, if you find that it is 50/50 as to whether they proved an affirmative defense, you must find for Plaintiff, but if you believe that defendant has proved Affirmative Defense by 50.1%, you must find for the Defendant on that claim.


  • The only remedy for which the law provides when someone has been injured though the fault of another is monetary compensation. [If someone were to say “this case is about money” that would be true. There is no way for us to go back in time and undo the events of the past. My client would like nothing more than to come to court today and have you render a verdict that somehow changes the past, takes away the fact that her last years battling the swelling, shots and anxiety over what is to happen next Obviously, that is not going to happen.
  • We give money to compensate her and by holding people accountable, to prevent future similar conduct or behavior. (did you hear about that doc that sold the more expensive filler and then got burned?” that’s effective to change the world.

-Make people who believe, for example, that caps on pain and suffering should be imposed feel comfortable to express that view during voir dire. It is your only chance to identify those people who walk into the room philosophically troubled by a large plaintiff’s verdict in your case.

– Ms. _________, how do you feel about that?

– Now, if we prove our case that Ms. Tone was injured by the negligent conduct of the Defendant, Dr. Studin, I would be the first to tell you that M. You would agree with that, wouldn’t you?

– On the other hand, if we were to prove that Ms. Tone’s injuries were caused by the intentional conduct of the Defendants, no more and no less than is appropriate to put him as close back to the position he was as possible by monetary compensation for her ordeal. How do you feel about that?

– While it is true that we often read about sensational cases and runaway jury verdicts, the one thing we don’t read about is the Plaintiff that is awarded an inadequate amount of money. Ms. ______ how do you feel about awarding the Plaintiff money if Plaintiff can demonstrate Defendant’s are liable?


– The law says that you cannot give my client my because you sympathize with my client. If this case were about sympathy, I have no doubt that my client wins, he has been through a lot as a result of this incident. My client is not here for sympathy. Can we agree that if your verdict were based on sympathy it would be wrong?

– What my client does seek is justice, a fair shake. While it would be wrong to base a verdict on sympathy, it is just as wrong to based a verdict on cynicism. What I mean by that is I am fearful of those who don’t really care and if you were to get the case to deliberate at 4 pm on a Friday afternoon, some might say, let’s reach any decision, let’s get out of here, what is the difference. How do you feel about that?

– Do you agree with our system of civil justice which stands for the proposition that negligent or careless or doctors that depart from the standard of care who cause injuries should compensate the people they injure? Why?

– Do you agree that if someone is injured by the professional malpractice of another—be it a lawyer, dentist or doctor, that they are to be compensated for their medical costs? How about the negligent or careless conduct of another? Why?

– Do you agree that if someone is hurt through the fault of another that the party at fault should compensate him for his inability to work? Lost job opportunities? Lost earnings? Why?

– Do you agree that the injured person should be entitled not just for what they have lost due to the fault of another party, but what they will lose in the future? Why?

  • Can you accept the fact that a plaintiff’s testimony, while not as convincing as a video recording of what she says is also proof or evidence?
  • Anyone hear of medical “malpractice caps”? Should there be a cap on medical malpractice awards?

– I am going to discuss medical costs or lost earnings or job opportunities, what we call special damages. One such is pain and suffering. Our system of justice provides for such an award if caused by the intentional or negligent or careless conduct of another. Do you agree that a person should be compensated not just for medical costs, lost earnings or job opportunities, but also for something they have lost in human terms, their pain and suffering? How do you feel about that?

– Can I have your assurance that if we prove pain and suffering, you will make an award to Ms. Tone if she is entitled to it?

Is it a cliché to say “you can’t change the world” – what if a verdict here could make it safer for everyone in the future, would you just choose to ignore what happened, because it’s in the past?

– Let’s say hypothetically, we prove our case and you are sitting in the jury room and considering the damages. Suppose each individual damage does not seem like a lot of money, but added up it becomes a substantial sum of money. Would you have any hesitation in awarding Ms. Kayton a substantial amount of money if you believed he was entitled to it based upon the proof in the case and the law the judge has instructed, can you assure me of that?


Our experts are going to render an opinion and they’re going to tell you that there was a departure from what a competent doctor would do. They are going to say that the Defendant departed from the standard of care. That testimony will be refuted by a doctor hired by the Defendants to defend him. Do you realize you can throw out what that expert says if you dont’ find it credible?

You’re going to take back strong evidence from Plaintiff and weigh it against the Defendant’s expert and going to be asked to make your own finding based on the evidence. Again, Testimony is evidence.

  1. Does anyone know of any reason he or she may be prejudiced for or against the plaintiffs or defendants because of the nature of the case, or otherwise?
  2. Is anyone here a lawyer, married to a lawyer, or in a substantial relationship with a lawyer? Has anyone here studied law or worked in a law office? Notwithstanding what you feel the law is or should be on a particular subject, will you apply the law as I give it to you at the end of this case?
  3. Does anyone here, because of the nature of your employment, feel that you may not be able to judge this case impartially?
  4. Have you read in the newspapers, read on the internet, seen on television, or heard on the radio anything about this case, or do you have any knowledge of the facts or events of this case?
  5. If you are selected as a juror, do you pledge that you will base your decision on the facts as presented in this trial and not on any past experience or prior opinions you might have about the subject matter of this case?
  6. Have you or a close family member sued or been sued by someone? If so, what was the nature of the lawsuit? Does that experience affect your ability to be fair to all parties in deciding this case?
  7. Have you or a close family member ever testified in a lawsuit? Does this experience affect your ability to be fair to all parties in deciding this case?


  1. You may be called upon in this case to decide liability and/or award money damages. Do any of you have any religious, philosophical, or other belief that prevents you from acting as an impartial juror in this case?
  2. Is there anyone who, if selected to serve as a juror, has any qualms about attempting to come to a verdict at the end of the case?
  3. Have any of you, any member of your family, or any very close personal friend ever engaged in investigating or otherwise acting upon claims for damages?
  4. Do you know of any reason that you cannot sit in this case with complete fairness and impartiality and decide the case based only on the evidence presented in court and the law as given at the conclusion of the trial?

Each potential juror is asked to state:

  1. his or her full name and area of residence (Manoa, Hilo, etc.);
  2. how long he or she has been a resident of the State of Hawaii;
  3. his or her occupation;
  4. if retired, what his or her occupation was before retirement;
  5. marital status (single, married, etc.);
  6. if married, spouse’s name and occupation;
  7. respective ages and occupations of any children; and
  8. if a relative (other than a spouse or a child), friend, or roommate lives in the same household, that person’s occupation.