Ep. 261 – Short Not Shallow: How Clarity Leads to Shorter Trials – Part 2

TOO MANY cases are overloaded with irrelevant facts and scattered strategies that actually give the defense MORE ammunition to use AGAINST YOU.  

It’s time to use clarity and simplicity as your secret weapon. ⚔️

Think of it like Marie Kondo-ing your legal strategy — ESSENTIALS ONLY!

Tune in and learn how to clear the clutter, simplify complex issues, and win over the jury. 

Xo,
Sari

➡️Listen on Spotify

➡️Listen on Apple

➡️FREE FB GROUP FOR PLAINTIFF & CRIMINAL DEFENSE ATTORNEYS

“Simple isn't easy. That's the biggest takeaway—simplifying something is some of the hardest work you'll ever do as a trial attorney. But it’s essential, because a shorter trial is easier on you, your family, the jurors, everyone. If it's clear, concise, and convincing, we’re doing the jury a favor. It's like, ‘Yeah, this is simple. We don’t need to be here long. It’s A, B, C, and that’s it.’ Let the defense drag it out if they want, but we’ll stay focused."

sari de la motte

EPISODE 261 TRANSCRIPTION

Sari de la Motte:

Well, hello. Hello. You better have given me your reviews on the podcast because I have a gift for you today and it is packaged up in Jody Moore wrapping paper. Because we weren't able to shove all of her goodness, gross, in last week's podcast. We're coming back this week to tell you. Hopefully, last week you realized that you are doing way too much and putting way too much in your cases. And so now Jody is here to talk to us, talk to me, talk to you, about how to avoid doing that thing. We are here with Jody fucking Moore. Welcome, Jody again.

Jody Moore:

Thank you. Thank you so much. I'm excited to be here.

Sari de la Motte:

Okay, so last week we talked about how they have fuzzy thinking, they have mindset problems, they have something else that I forgot.

Jody Moore:

Time management.

Sari de la Motte:

Time management, I should have remembered that. And they have ego issues, not that they think they're amazing, but they're unwilling to let go of these things that they've created and whatnot. And that leads to not winning verdicts, number one, but two, longer trials than necessary. So we want to talk about how short not shallow and how we can start moving in that direction. By the way, you got these ideas from what book?

Jody Moore:

Yeah. So as we were-

Sari de la Motte:

Besides your brilliant brain,

Jody Moore:

As we were thinking about this, the book that was recommended to me was called Smart Brevity by Jim Vander Hay, Mike Allen and Roy Schwartz.

Sari de la Motte:

I don't know if Kevin's looking at this, my camera right now, but I'm showing the book.

Jody Moore:

Right now. Yes. So Smart Brevity is born out of journalism. The journalists who wrote this talked about how we have to package content in a way that consumers are ready to consume it and it works for jury trials, as well. So a lot of what we're talking about today is to put a fine point on how to get our thinking to go from fuzzy to focused and how to change our attitude, if you will, from being sort of focused on ourselves to focused on the jury. So a lot of these ideas did come from Smart Brevity and figuring out how to use them in jury trials.

Sari de la Motte:

Love it, love it. So we want to reverse the fuzzy thinking, the mindset issues, which guess who can help you with that? Just saying the time management also can help you and the ego. Not sure if I can help you, but you have some things to share with us about how we can start to turn this around.

Jody Moore:

So if we want to take them in order, we want our thinking to be focused, not fuzzy. And so we have a couple of tools that we're expanding on in H2H.

The question is always, of course, how do we get there? So we need to use some sort of clarity tool. We talked about it a little bit in the last podcast, the X Y filter. So we're going to just go a little bit deeper in this podcast. And that is we need to be looking for these issues, these tipping point issues. We need to be analyzing our cases from the point of view of trying to figure out how we are going to win and how could we lose. So in doing that, I would suggest that we break down our cases into their component parts. Very generally speaking, we usually are talking about the right way. What is the right way for a truck driver to train its employees or truck driver to secure the load trucking company to train its employees?

Sari de la Motte:

Well, you say that, we talk about that, but we don't. I mean it's kind of a side note, which I think is what H2H is doing better than most people is we go in front of a jury and we're like, they did this wrong. This is super wrong, you guys, it's totally wrong. And then later, buried in our experts or somewhere else is, well, here's the right way, but it's like a side note. We don't put it front and center, which is one of the things that H2H does.

Jody Moore:

So in the H2H Method, that would come in the teaching section, in the opening.

So we're going to hook 'em with a rule or a statistic or an impactful statement, we're going to draw them into like, Ooh, what's this case about? I'm interested in learning more and then we're going to teach. And in the teaching section it's like, here's the right way.

And if things are done the right way, we avoid the harm, the peril, the danger that caused the injury in our case, because every juror needs to answer the question, how could this have been avoided? And we want to do that for them.

We want to give them the information about how the outcome could have been avoided. So if the teaching section says a responsible fill in the blank, a responsible defendant does A, B, and C, we call that the right way.

And then when we get into the defendant's story and we lay out factually and chronologically, typically what actually happened in our case. The jury already knows, well wait a minute, that's not right. You've just told us the right way to do it, has these steps and they skip steps or they did different steps. So that's the wrong way.

So when we're looking for this clarity piece, one of the places to look for it is in the right way or the wrong way thinking.

For example, in the right way, we would be asking does do I have the evidence to prove this is the right way to do it? And is it going to be controverted? Is everybody agreeing?

Sari de la Motte:

What the hell is controverted? Is that a legal word?

Jody Moore:

Subject to controversy. Yes, that is a legal word. Does everybody agree this is the right way or is there going to be disagreement about that?

Sari de la Motte:

That's some Rick Friedman right there, you know, got a good rule when they have to agree with it or disagreement that makes them look stupid.

Jody Moore:

Exactly. Exactly. And then we go into the wrong way. The defendants did this, they didn't do A, B and C. And most of the time, for example, in healthcare cases, it's like, well, they had discretion or it depends. You could do it two different ways. So we're looking at the right way and the wrong way to determine if our X Y filter is in there, right?

If the jury believes there's one right way to do it, or this is the right way to do it, I win. If the jury believes there's multiple ways that this could be done safely, that might be a big gap in my case and I would lose.

Sari de la Motte:

So what if there is multiple ways of doing it correctly? How do you deal with that?

Jody Moore:

Well, now we're back to ranking. What is the safest way to do it? And also asking ourselves, why would they do it a different way? I think that when we're exploring the idea of motive, even though that's not typically an element per se in our cases, it's a gap that jurors want filled.

Sari de la Motte:

Absolutely. Because they'll let off a doctor, particularly doctors or others, because they're like, well, they didn't mean to do it. They didn't mean to do it.

Jody Moore:

Right.

Sari de la Motte:

And so often we can look at their actions if we're doing the work to simplify, as we talked about last week, it takes work and we can say, well, if we really pull back all these layers, the motive is money, time is money. The reason they don't do these things and follow these safety procedures or have enough staff at a nursing home, for example, is money. That's what it comes down to. We don't have to think that these nurses did this on purpose and want to kill these patients. I think they're overworked. Many of 'em, it's about money

Jody Moore:

And that's how we always back up our cases and back up our timeline. We have also been taught to look not just at the event, but at the system. And I do think a lot of times, we try the event case, I'm going to try this single fall event, or maybe it's the second fall or the third fall. And that may be successful, but if I really want to understand why my resident fell in the nursing home, I'm looking for the systemic problem-

Sari de la Motte:

I just want to stop, because that's brilliant per usual, but event versus system.

Jody Moore:

Right?

Sari de la Motte:

That's huge, because I think so often it's like jurors will look and they'll go, well, shit happens, right? Mistakes happen, if you are focusing on a singular event. But if you can look at a systemic issue, then that changes the whole ballgame because now we have the piss off point.

Jody Moore:

Right?

And so that is, why did the person fall? And so this is where one of the principles that you teach is the five why's. So now I know the outcome.

The outcome is that this resident fell, had a catastrophic injury and died. So the question is why did they fall? Well, they fell because they were unsupervised. Great. Why were they unsupervised? Well, the floor was short that day. Why was the floor short that day? Well, because they set their staffing schedule at the bare minimum. And if somebody calls in sick, they're understaffed. Why would they do that? Well, because corporate gives them the staffing schedule that says, we just need to meet this minimum threshold. And why would they do that? It increases their profits.

Sari de la Motte:

Absolutely. That was six Y's. But yes, I'm glad you kept going.

Jody Moore:

I'm an overachiever by nature. So five Y's or good six Y's are better.

Sari de la Motte:

Okay, so let's go back. We went a little bit off topic. You said the first thing is to look at the components.

Jody Moore:

So what we're looking for the case critical facts, that's what I'm calling it cases have, there could be a hundred facts that we could present that may or may not support the elements of a specific case, but we really want to focus on the case critical facts. So the case critical facts are going to support the right way of doing it. They're going to show the wrong way of doing it.

Sari de la Motte:

That they did it wrong, correct.

Jody Moore:

They're going to demonstrate the mechanism of injury. So this caused that. So obviously those are case critical facts. If I don't show that connection in a trial, that's a problem and they're going to support damages.

Sari de la Motte:

Yeah. So you've just gone through liability causation damages right there.

Jody Moore:

Correct? Correct. So that's how we know the fact is case critical. Now, there might be a sideshow, there might be a terminated employee or a lack of background checks or falsified records that seem sexy and seem like, Ooh, this is fun. Does it support a case critical fact? It might. I'm not suggesting that type of evidence-

Sari de la Motte:

But it's not going to be front and center.

Jody Moore:

It's not going to be front and center. Or what I want to convey is we need to be intentional about why we're picking that evidence as part of our trial so that I need this evidence, or actually that's wrong, I don't need this evidence.

Sari de la Motte:

I think that's right. There's the ego part.

Jody Moore:

The jury needs this evidence because this is what shows the right way or the jury needs this evidence because this undermines the likely defense or they need the evidence because it shows how my plaintiff was really injured.

Sari de la Motte:

Well, I know this is out of order, but that's one of your steps to avoid these long trials that are confusing for jurors is jury first.

Jody Moore:

Yes.

Sari de la Motte:

So talk to me about that. Is it okay if we go out of order?

Jody Moore:

Yeah, we're going out of order. I mean, I'll parallel it a little bit.

And the last podcast we talked about one of the reasons why our trials are long and fuzzy is the lawyer is very attached to the information that we get. And we're thinking that as we're showing this evidence, look how smart I am. We're not saying that obviously, but I have a command of the information.

Sari de la Motte:

Well, everyone's told us you have to be credible, you have to be credible. Everyone's said that. So it's not an ego like, oh, I'm doing this. It's like, oh, I've been told that I have to be credible, so let me show them how credible I am.

Jody Moore:

Right and so that's what we were sort of putting the lawyer first. And I think the antidote to that is we have to put the jury first.

That's one of the four principles. And so the question is, does the jury need it and why? And if I can't answer that question, the jury needs this in order for me to win on my X Y filter, then I probably don't need it.

This is the part where I just want to be intentional about the evidence. So if I have to ask, why does this piece of evidence matter and where does it fit in what I have the burden of proof on? It might matter that there's a falsified record because that we're showing that the defendants not credible, they're not a credible source of information. So it may very well be pertinent, but it may not. It may be like I don't need to prove that in order to win my case. So I don't need that fact, it's not case critical.

Sari de la Motte:

But that's a good point. We get a falsified record in one of our med mal cases or nursing home cases and we're like, aha, I got 'em. And then we put all of our focus on that and that's not what's going to win this case. It's like, all right, well they falsified it and you're saying, and see if they do that, then they must be wrong on all the other things. Doesn't always follow. That is the case,

Jody Moore:

Right? So again, we're just back to being intentional about that.

Sari de la Motte:

Jury first. I love that.

Jody Moore:

Right? And we say that all the time. I mean that kind of brings us back to the mindset issue. One of the core pillars of the H2H Method is that jurors are hostages and that we actually as the trial attorney need to trust the jury to do the right thing. And the more I dive into that principle, it's like, well, not only do we need to trust the jury, we sort of need to trust the judge too. I think we think just juries can be our enemies. We think, well now the judge is out to get me.

And then I think if you dig a little bit deeper, actually, I need to trust myself as the trial attorney. I'm trusting the evidence and the story that I'm packaging and the strategy decisions that I'm making are the right choices for this case.

And so we're back to once we run through this filter and we decide this is the affirmative story that I'm going to tell in my case. Instead of chasing all the potential defenses, I'm going to undermine 'em, but I'm not going to chase 'em. What I get really clear on this is the affirmative story I'm going to tell.

Then you can say something to the jury in voir dire or opening to the effect of, "I'm going to be really efficient in this trial and I'm going to give you all the information you need to do your jobs and find in favor of my client, but I'm not going to waste your time and I'm not going to give you any fluff. I'm not going to give you any extra." And you can design around that in voir dire.

Sari de la Motte:

Are you going to require that I bring five documents when one will do?

Jody Moore:

Exactly. Exactly.

Sari de la Motte:

And no jury on the planet is going to be like, yes, I want more of trial, not less.

Jody Moore:

But designing that takes a certain mindset and a certain sort of groundedness and it starts with trusting your story. Then, trusting yourself that these were the right strategic decisions and then trusting that the jury will come to the right conclusion because your case is righteous.

Sari de la Motte:

Well, I think that's what a lot of our listeners probably listening right now are thinking, but how do I know it's the right story? That's what I'm so worried about. So that's why they hire all the consultants and read all the books and they themselves get confused. And we are going to be talking about big data, you and I here a lot in this fall, but we talked about big data being garbage in, garbage out. It's only going to spit out the information that you put in. And I think it's the same thing there.

Confused attorney, confused jury.

Jody Moore:

Right?

Sari de la Motte:

One follows the other. And so I think what the problem is is that so many. I guess I'm not using my microphone right. So many of the attorneys think that there is one right story, and if they don't know what it is, somebody else will know what it is. And by the time they spend all this time trying to figure it out, they're like, "fuck, I don't know what it is. Let's just throw all the information at the jury."

So what would you say to them and going, how do I know it's the right story?

Jody Moore:

Well, now we're back to the other pillar of time management. You really have to deeply understand your case in order to get where you need to go. And again, that deeper understanding takes time.

So for example, if we're talking about what witnesses do I need to call at the time of trial, we're going to start broad. We're going to start with who are the universe of witnesses that I can call at trial? And then we're going to identify, okay, well what pieces of information can I get from these witnesses, right? Then we're going to ask questions about that.

Well, is there a piece of information that only one witness can give me that information, right? The information is unique to that witness. Well, that person's more likely going to be on my witness list if in fact I decide that piece of information is case critical.

But if there's five people who can tell me the same thing, for example, a rule or regulation, you can probably get that from multiple people. Then we want to go down our filter and we want to ask the question, well, who is the best person to give me that information?

And now maybe instead of calling five people to say the same thing, I'm going to call the best person.

And again, I don't know in the abstract, I can't say, well, the best person is always X, but I can tell you that there are factors. So the best person might be A PMK because they bind the corporation. That's fantastic. I want the binding effect.

The best person might be somebody who's really likable, but it's giving you great information. So the jury is going to be like that person, even though they are aligned with the defense is really supporting this point and that gets you the point that you need to make.

So the best person's going to change but again, you have to be intentional. And then the last thing I would say about that is sometimes you do want more than one witness to make the same point. If in fact you're emphasizing that point's either not really in controversy or everybody in the business of trucking agrees that this is the rule, or something like that. So there is a reason to emphasize a point, but again, I want that emphasis to be intentional and not just like, well, I took these 10 depos and they all said the same thing, so I'm going to work that into my outline of every witness direct.

Sari de la Motte:

And that was going to be one of my points is that we hear less is more. But I think most attorneys think more is more, right? The more people that can back me up on this, the better the jury will buy it.

And what you've been reading in the book and what we've been talking about and what I've seen in my career, it's just like when I talk about how 150 PowerPoints versus writing it out on a flip chart. It's like the more people you have to bring, the longer the trial is - what you are non-verbally communicating or subconsciously communicating is this is really complicated. It's going to take us three months to explain it to you and 10 witnesses, instead of one, and all kinds of exhibits instead of the right number and so on and so forth. And so it's doing the opposite of what you think it's going to do.

We think that that adds credibility, but subconsciously it's saying this is really complicated.

And again, going back to Rick Friedman, he says that complex and confusion and ambiguity are tools of the defense. So that's falling right into their hands because we're saying, this is so complex and jurors just nope out. They're like, well, if it's that complex, then I'm just not going to do anything because it's too complex.

Now, my second point to what you were saying I thought was so interesting, you went to time management for knowing how if your story is the right story, because I'm thinking back to the clients we were just working with in a trial lab, and I don't think that there's any doubt in their mind walking out the door the last day of the trial lab that they have the right story. And that's for a few reasons. We're going to talk about that in an upcoming podcast in terms of the collaboration, but it's because they spent the time drilling down. And without that, you won't know that you have the right story.

Once you drill down and you really get to the essence, and that takes time, you won't have any doubt that that's the right story. They weren't leaving going, well, it could be this or this. They're like, okay, we found it.

Jody Moore:

Yes.

Sari de la Motte:

It's the right one.

Jody Moore:

And then that confidence in turn is going to be what conveys the credibility to the jury.

Sari de la Motte:

Not the 10 witnesses, when you can have one. Not 15 exhibits when you could do with 3.

Jody Moore:

The jury's finding should not be like a buffet, right? This is a price fix menu. It's like you're going to get this appetizer, this meal, and this dessert. I made the decision for you.

Sari de la Motte:

And you're going to enjoy it and you're going to like it.

Jody Moore:

Yeah, exactly.

Sari de la Motte:

And shut up. But that's what they want. I mean, that's the thing. They're like, I don't know what the hell is going on. Tell me what to do. That person shows up. They're like, hell yeah, let's go.

Jody Moore:

Yeah. And in the language of the book, Smart Brevity, it says that brevity is confidence. Length is fear.

Brevity is confidence. Length is fear.

Sari de la Motte:

Yes.

Jody Moore:

Right.

Sari de la Motte:

I'm requiring all trial attorneys to tattoo that on your body somewhere you can see it.

Jody Moore:

Right? And it's the point you were making, right? The more we talk, it's almost like thou doth protests too much. It's like, let's, let me keep beating the drum of this point. And then after a while there's like, well, is that really the point? So I agree with that. Also, the point that came up for me when I was thinking about this the other day, a lot of us attorneys talk to our witnesses, our plaintiffs about just answer the question that's been asked. And when you volunteer information, it sort of opens this can of worms. And I think the same type of philosophy can apply here.

When we decide the case is really about these three main points and we focus the jury's energy on these three main points, then it's memorable, it's sticky. They can understand it. They're less confused.

When we bring up these three main points and also these other six side points-

Sari de la Motte:

And then 16 sub points under the side points.

Jody Moore:

We're actually inviting the defense to come in and attack maybe those other six points in a way that if you're not giving them the ammunition in the first place, they're forced to deal with these three parts that we decided were the most important and hopefully are the hardest to undermine or the hardest for the defense to challenge.

So why am I going to lob an issue that may or may not have traction that might give the defense more ammunition or more to play with? So the tighter my cases, the less they have to undermine. And I think we need to keep that in mind as well.

Sari de la Motte:

It's like less places to enter if it's tight. Wow. Right now I'm just, I'm wowing to myself.

Jody Moore:

You are wowing to yourself.

Sari de la Motte:

So where are we on our four things? So we've talked about focusing and we talked about jury first.

Jody Moore:

We talked about the mindset issue, which is once you do this work, then you actually have to trust your story.

You have to trust that I can put forward these three things and I can stand in front of a jury grounded saying, "I'm going to give you everything you need and not a minute more like not a document more, not a witness more, not a minute more. I'm not going to waste your time" and to do that from a place of confidence.

And then we talked about the time management, which is you got to do the work in advance to get really clear on what those issues are.

Sari de la Motte:

Yeah, so that's it, which is a lot.

I mean, we always say in our work, that simple isn't easy. I think that's the biggest thing is to simplify something as some of the hardest work that you will ever do as trial attorneys.

And yet, it is so essential here because a shorter trial is easier on you, on your family, on the jurors, on everybody. But we don't want it to be short, just for it to be short. We want it to be short because it's so clear and concise, not to mention that if it is clear and concise, clear and convincing, then we are doing the jury a favor. Like, yeah, this is simple. Yeah, we don't need to be here that long. It's A, B, C, that's it. And let the defense make it long if they need to and go on and on and on.

But we just keep sticking to our story, and the more clearer you get, then you can ask more clear deposition questions. You can be more clear on cross, you can be more clear on direct. You can make everything point in the direction that you want.

That said, it takes time. It takes time. We've been talking a lot here about how to actually do this trial lawyer life and what we don't have is a secret for you of how you can do this and have 200 cases or even 50 cases, or maybe even 20 cases.

If you really want to get the kind of results that we're saying you can have, you're going to have to get fewer cases and put more time in them. Of course, case selection is huge, and we plan on talking about all these things in this season from Hostage to Hero.

Until then, we invite you to go to, sariswears.com/play. Get on that list, get in the crew. If I'm not enough for you, now you know that Jody's amazing. She's in there. You're going to get some Jody action. Okay, also gross. No, she, she's like, no, you're not going to get that, but you are going to get time with Jody, so come join us in the crew.

I'm not sure at this recording if we've already filled the November retreat, but remember November 6th - 9th, we are having a Resonant Conversations Retreat at a villa with a private chef and all inclusive. You can go to resonant, not resident Conversations Retreat. That's at sariswears.com/resonant. If it is sold out at this recording, we are going to do another one in June, so just make sure you're on our list and you will hear about it.

Thank you, Jody, for being here, yet again. They get two of you this month. I know, and we'll talk soon. Thanks everybody. Bye-Bye. Thanks. Bye.

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 wait list. Olly olly oxen free.

Have you heard? We are finally hosting the long-awaited, highly requested, most frequently asked question in my inbox, introducing Resonant Conversations Retreat, Coaching Skills for Trial Lawyers.

It's time for the retreat you've all been asking for. We've packed this weekend with powerful workshops and activities designed to ignite your purpose and realign your passion. Early bird registrations are now open. So head over to sariswears.com/retreat to register.

We only have 12 spots available, so do not wait!