FHTH Encore - The 2 Types of Questions That Stall Out Voir Dire

🚨 Voir Dire Pitfalls Alert! 🚨

Let’s cut to the chase—if your voir dire is stalling, you might be using the wrong types of questions.

There are two types of questions that are TOTALLY stalling your jury selection:

❌ Experiential questions.

AND

❌ Evidentiary questions.

FORGET the small talk.

Get straight to the point. 🎯

Want to learn how to streamline your questions?

Check out the full episode and turn your voir dire into a powerhouse of insight.

Xo,

Sari

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“What are the issues in the case and what does the jury think about those issues? That's it. That's what voir dire is for. Will we build rapport as we're doing that? Maybe. That's not the point of voir dire either. Will we show up as likable and charismatic? I don't give a fuck. That's not what voir dire is about. Voir dire is about, "Here are the issues in the case. What do you think about those?". And in most cases, the jurors are going to totally be on your side because you stand on the side of the right.”
sari de la motte

encore EPISODE tRANSCRIPTION

Red Rover. Red Rover. I send you on over. Over to the H2H playground, that is. I am beyond thrilled to officially invite you to join us in the H2H Playground. I know, doesn't that sound like fun? This is your chance to be part of the only online working group in the world for plaintiff attorneys to learn and practice trial skills in a safe place, while having fun. This my friend, is where you become the lawyer you were born to be. Join the waitlist, at sariswears.com/play.

We open the doors for enrollment on September 17th.

Go sign up now to be on the waitlist. Ali Ali Oxenfree!

Hello, hello. Welcome to another episode of From Hostage to Hero. Sari de la Motte, the attorney whisperer, with you today, and we're going to start with a reader shout out. This is Taryn. I'm not sure if I'm saying the name right. And Taryn, five star review, says "Fantastic book. A must read to dispel the myth about jurors that they want to be our buddies. We need to respect the jury and let them know why they are there and see if they want to help. If not, no hard feelings. If so, here's what we need to do. Also, love some of the self-help topics because we are all thinking but too embarrassed to admit it. Highly encourage getting this book." Well, thank you so much, Taryn. I hope I'm saying your name right, and if you've not reviewed the book yet, you can do so at trialguides.com and hit that star rating as you're listening to this podcast. We want to continue to get those reviews up. Thank you.

Okay, so today we're talking about the two types of questions that stall out voir dire. So, you know, voir dire is my jam and I love it.

"Does anyone here think that way?" or "Do you believe this?" Or those kinds of questions are just close-ended, they're never helpful and they absolutely stall voir dire. But these two types of questions that I'm going to talk about today, I've been seeing more and more of, and I want to talk to you about why they don't work and what works. Instead, they both start with an E so that they're easy to remember because I'm all about helping you make things easier.

So, the first type of question that stalls at voir dire is called the experiential question.

So what I mean by that is "Who here has experience with?" or "Who here knows someone who has experience with?", or you may have asked it differently. You don't necessarily need to use the word experience. "Who here has ever been in a hospital or hospitalized or knows someone who has?"

That's an experiential question. Basically any kind of question that you're asking about someone's experience with. Now, we do use experiential questions and I'm going to show you where they're appropriate and how to use them at the end of today's episode or the middle. Anyways, when I'm done talking about why they don't work, here's why they don't work - because they don't do what I think you're trying to do and what you're trying to do doesn't work. Meaning, so many of you have been trained that voir dire, if you've been trained in it at all, but that it is a time to figure out the demographic makeup of your jury and make decisions based on gender, age and jobs. Who's the leader, who's been a manager at work, who's a nurse, who's a doctor, all of those things. Now, I'm not going to suggest that those things don't mean anything, right?

They can and should be taken into consideration, but most of the time they are the only thing that you are looking at and it's like this kind of mystery and you're out there with your hands in front of your face in the dark trying to grope around and figure out what is actually happening when it's so much easier. You're asking all these questions and then you're like consulting your tarot cards to be like, "okay, well, they love fly fishing. So what does that mean for my case?". And in most cases it doesn't mean anything, or if it does mean something, we're not going to get to it by asking about their hobbies or whether they were a manager at work. We're just not. It's kind of just this weird sneaky way to try to find out what we actually want to find out, which is what do they believe? Not what is their experience with, but what do they believe? And guess what, we can be way more direct about that shit. We don't have to waste time and circle around and experiential questions. Cause that's exactly what happens. That's why it stalls out Voir Dire, is we'll say, "Who here's ever been hospitalized? Oh, tell me about that." And then "Oh yeah, I had this heart thing and I had to go in..." and blah, blah, blah.

"Thank you. Who else has been in the hospital?" and we just swirl and swirl and swirl. This is why I stopped doing jury selection because there was no point of me being there. We weren't getting any good answers. And it's not, unless I work with you for a while and you understand the method and you're really good at issue oriented voir dire that you can get me to come out and help you pick a jury. Not that you need me to pick a jury. You just need yourself - knowing what you're looking for and someone there to back you up. It doesn't have to be me, but here's the thing is that when you use the experiential question, it's just a space filler. It's just a time filler. We're not learning about what we really need to learn. I mean, this is why we call it the issue oriented voir dire.

What are the issues in the case and what does the jury think about those issues? That's it. That's what voir dire is for. Will we build rapport as we're doing that? Maybe. That's not the point of voir dire either. Will we show up as likable and charismatic? I don't give a fuck. That's not what voir dire is about. Voir dire is about, "Here are the issues in the case. What do you think about those?". And in most cases, the jurors are going to totally be on on your side because you stand on the side of the right. "Do you think people should make up for it if they hurt somebody?". 99% of people in the world are going to say, "Yes!". You guys are complicating this. You're out on this hunt for this weird information. You're going these weird ways of going.

"What's your experience in gardening?" What's that going to tell me about so and so juror? You don't need to play those games. We can ask them. We can ask them what they think, and I'm going to show you exactly how to do that as we continue.

But that really brings us to the second question that completely stalls out voir dire, which is also starting with an E - Evidentiary.

Ooh, I've been waiting a long time to say that word. You guys say it all the time, but I don't really have an opportunity to say it that often. Evidentiary, it's a cool word apparently, it makes me stop talking normally. Okay, so what do I mean by this one? Well, this is where, and this is really frustrating for jurors, but this is where you kind of are trying without talking about the evidence, but kind of talking about it to find out what they believe about the facts in the case.

So, it's frustrating for jurors because it feels like you're leading them to a conclusion without them knowing about it, right? You're trying to get them to say something without them having a full understanding about what it is you're talking about because you can't really talk about it, but you kind of want to know and they're on to you. That's all I got to say about this. They're on to you. So, an example of this would be like, "Alright, so what would you think about a parking lot that has water in it?", And they're like, "What do you mean? What would I think?" "Well, would you expect that that would be there?" And they're like, "I guess it depends." And you're like, "Okay, on what?" And they're like, "oh my god." And they're just searching. They're trying to help you, at first. I've seen this every time, but they don't know what you're looking for.

And then they start to get frustrated and then they start to feel like, oh, okay, he or she is trying to get me to some logical conclusion, but I'm not in on the inside joke. And then they start to get pissed. That is not what you want to happen when it comes to voir dire. So I'm going to suggest that you avoid, for the most case, experiential questions, at least swirling there. I'm going to talk about, we definitely do use experiential questions and that you avoid at all costs, the evidentiary questions where you're really talking about facts that you really shouldn't talk about. Because again, let me remind you, voir dire is not about facts. It's not about what jurors think about the facts. It's about what jurors believe. It's about what they believe. It's about principles. It's not about facts. It's not about evidence. It's not about their experience.

Does their experience shape what they believe? Yes, but there's a much easier way to get there than swirling around and asking about their beliefs and hoping that you get something good. It's kind of like panning for gold right? And put that thing, whatever it's called, down in the water and you get all this gravel and dirt and hoping there's a gold piece in there. It takes hours and hours. That's what you guys are doing in voir dire. You don't need to do it. You can just ask them, here's how. So if you have not listened to my podcast episode on the four questions to get jurors to give you the principle in your case, listen to it immediately. But I've made it even simpler. I've made it down to three questions now. So here's the basic gist. Again, easy to remember. Your first question is experience.

Yes, I'm going to tell you why in a minute. Your second question is an expectations question, and your third question is, "what could happen if ...?" question. Now peppered in there, this is why I'm making it three and three, is you can ask the three follow-up questions. "Tell me more", "How important is...?", "What was that like?". Right? Those are the three questions you always have in your back pocket, right? I've given those to you so you can use them to get out of any jam in voir dire. So you're going to use those as they make sense. "Tell me more", "What's important about that?", "What was/is that like?"

"How important is...?", So those are always in your back pocket, but the three ways to get you down into the principle in your case and to basically, what do jurors think about this principle, which in most cases they agree with you.

Those three questions will do it. "What's your experience with...?", "What's your expectations of...?" and "What can happen if...?". Alright, let me give you four examples of how you get to the principle super quick with three questions. And then again, those follow-up questions as you need them. Alright? It's a surgery monitoring during surgery. Great. "Who here has ever had surgery or knows someone who has.?" Right now, here's the reason why we use the experiential question is because it's easy. It's an easy way to start a conversation. That's it. That's it. No other reason. Everybody raises their hand or some people raise their hand. Great. "What were your expectations in terms of how you'd be monitored during surgery or how your loved one would be monitored in surgery? What could happen if they're not monitoring?" People could die or get hurt.

Great. That's your principle. When people don't monitor during surgery, people could get hurt or die. I got there in three questions, maybe a little more if I need it with some of those backups.

Okay. Trucking case. "Who here has ever shared the road with a 18 wheeler or semi-truck?" Depending on where you are in the country and what you call it, right? Almost everybody. They raise their hand. Great. Now we're onto the expectations question. "What are your expectations in terms of the training that those drivers get?", "Yeah, what could happen if they don't do that training?". Booya people get hurt or killed if companies don't properly train semi-truck drivers. I've never had to say that. You don't have to say that. The jurors will tell you. Three questions and we're there. Done.

Premise liability. "Who here has ever been to a store?" There's your expectations or your experience questions."What were your expectations about them keeping the floor free of hazards so that you don't trip?", "What could happen if they don't do that?" People get hurt. Maybe not die. Maybe, right? Now, I'm not saying that every juror's going to be like, they should totally do that, and there are some jurors that I don't have any expectations of. Great. We want to know that. Still a great question. We want to know who believes that.

Product liability. "Who here has ever used a product?" Easy, right? It's just a way to start the conversation. "What are your expectations in terms of testing that product for safety? What could happen if they don't do that?" Now I'm not saying every voir dire should be these three questions on every single point, right? We got to have some artistry here, but this is the science, people. This is the basic gist.

You don't need to swirl around in experiential. You don't need to try to get into the evidence. Notice in all of these, I didn't need to give you any details to get to the principle. We're talking about surgery, we're talking about walking into the store, we're talking about sharing the road with a truck, and we're talking about using products. They don't need to know what this particular case is about. Now, if there's some defense points that you're going to have to cover in voir dire, which there almost always is, that might be a little different, but rarely, I'm happy to do another episode on that. But the point is, the two types of questions that tend to stall out voir dire the most because I'm consistently working on voir dire every month, several times a month. So I'm seeing this stuff come up all the time, are experiential, swirling around in that instead of using it as a jumping off point, and evidentiary. Oh, I love that word. I don't know why I love that word. Alright, I hope this was helpful, my friends, and we will talk next week.

Red Rover. Red Rover, I send you on over to the H2H playground, that is. I am beyond thrilled to officially invite you to join us in the H2H playground. I know. Doesn't that sound like fun? This is your chance to be part of the only online working group in the world for plaintiff attorneys to learn and practice trial skills in a safe place while having fun. This, my friend, is where you become the lawyer you were born to be. Join the waitlist, at sariswears.com/play, We open the doors for enrollment on September 17th. Go sign up now to be on the waitlist. Ali Ali Oxenfree.

Have you ever wished that you knew what the jury was thinking? Well, grab a pen and paper because I'm about to give you instant access to a free training I created for plaintiff trial attorneys called Three Powerful Strategies to Help You Read a Juror's Mind. It's going to help you to understand what the jury is thinking, so you'll feel confident to trust them and yourself in the courtroom.

Ready for the address? Go to sariswears.com/jury. Enjoy.