What is a "Devil's Advocate" Question? (And should you be using it?)

devil's advocate
noun. a person who advocates an opposing or unpopular cause for the sake of argument or to expose it to a thorough examination.

Are you using the devil's advocate question in voir dire? No? Well pull up a chair, 'cause you're gonna want this in your repertoire.

I've been playing with the devil's advocate question for several years now and have found it to be an absolute must in my voir dire arsenal.

Here is the basic gist:

A devil's advocate question is where you ask the jurors a question that exposes a defense argument. 

For example, say you have an overserving case. A bar overserved a customer, that customer drove drunk, and someone was killed.

The defense may say things like: 
"We didn't force him to drink." 
"He wasn't obviously intoxicated."
Etc.

A devil's advocate question then would sound like this:
"Yeah, but, what about personal responsibility? No one poured the drinks down his throat."

Or:
"But could the bar really do anything? He didn't seem intoxicated."

You take a defense argument and turn it into a question.

But, you have to be careful. For example, NEVER use a devil's advocate question until you've rallied the jurors to your side.

For example, you wouldn't say:
"This is an overserving case. Which means a bar overserved a customer, and that customer drove drunk and killed someone. Who here thinks the bar couldn't do anything if he didn't seem intoxicated?"

Aack! No. You might as well pack up and go home with that question.

Instead, you want to ask the jurors if they think bars can play a part in preventing drunk driving. You want to ask why that's important. You want ask the jurors if bars should be held responsible when someone they overserved hurts or kills someone else.

And, depending on how they answer (ie, if they are "with" you) you can THEN play devil's advocate with:

"Yeah, but, what about personal responsibility? No one poured the drinks down his throat."

Here's why this works: once someone communicates an opinion, if you challenge that opinion it strengthens their conviction that they're right.

Social science backs me up on this. See this article and this one and this one.

The devil's advocate question allows you to both a) bring up a defense point and b) strengthen the opinions of favorable jurors all in one.

Just make sure you only use the Devil's Advocate Question if the jury is firmly rallied around your idea or the question can backfire.

Click here to listen to my podcast on the Devil's Advocate Question.