FHTH Ep. 267 - How to Design With Your Judge

We create a designed alliance with our jurors—why wouldn’t we do the same with our judge?!

In this episode, we’re diving into the art of building BENCH rapport. ⚖️

Because the last thing you need is your judge side-eyeing you and throwing objections your way just because your approach is unfamiliar.

We need to approach them with a transparent and deferential strategy that makes them feel prioritized in their courtroom.

Tune in to learn how to make your judge your strongest ally! 💪

Xo,
Sari

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"Judges are expected to know everything — talk about imposter syndrome. We often see them as these assholes that just do all this shit to try to fuck with us, but I believe that in most cases, judges experience imposter syndrome even more than anyone else. When they encounter something unfamiliar, it can really throw them off."
sari de la motte

EPISODE 267 TRANSCRIPTION

Well, welcome everybody. Today, we are talking about how to design with your judge. Before we do that, I'm going to ask you for, and shamelessly because that's me y'all, ask you for a review of the podcast. I want to get those up. Please and thank you. But I did see this review from David S. at Trial Guides about the book in September, so I wanted to read that, "Five Stars, more than I expected and I expected a lot." is the title. Well, David, I would love to know what you expected and how I exceeded, but he says, "Great book. The book is known to offer a new heuristic," and I had to look up that word, "...with which to see jury selection, but it goes to the entire trial process. I found it a great, easy read and very useful." Well, thank you, David! I'm glad I exceeded your expectations and I'm glad that the book is known.

And yes, I know that I have to write a second one, I'm planning on it. Give me a sec to recover from cancer and COVID and my asshole dog and I'll get to it. But thank you for everybody's interest in the book, I definitely want to write a second one. Especially since all of our funnel stuff, which is like the brand new shit is not in the book and that's our best stuff if you ask me. And the method has just come so much farther than when I wrote the book in 2019, which is now five years, almost exactly five years ago in November it came out. So if you want the most updated version of my method, you can go over to sariswears.com and get a copy of the H2H Fundamentals Course or you can get on our waitlist at sariswears.com/play, P-L-A-Y, to join the playground the next time that we are open. Because if you're listening to this, you just missed it. You're basic. So you want to make sure you get in on that.

All right, so today we're talking about designing with your judge and this came up in a session that I had with the most brilliant, Christy Crowe Childers. She's a master trucking lawyer, I don't think that's the word for it. Board certified, I think is what they said, trucking lawyer, she's in Georgia and she's got that beautiful accent, I don't know how anyone could ever say no to her and I know I'm doing the accent wrong. But Triple C, Triple Threat is a coach on our faculty here at H2H. And she and I were doing, and another H2H Crewbie, were doing a trial consult and we came up with this concept and I wanted to share it with you.

And if I had done my due diligence, and went and thought about things in my brain like I should have, I should have had her on the podcast. But I will have her on the podcast to be talking about her most brilliant damages house. Kevin, remind me to do that because we need to do that with Christy.

All right, all that said, is that we were talking about our design in the jury selection and how it can assist you with laying the groundwork for getting over any objections. So before we talk about that, let's talk about what a design is in general.

So a design is a conversation. That's really what it is, and it's a very specific type of conversation. It's a conversation that you have with anyone or a group that gives equal ownership in most cases. It's not always 50/50, but it shares the ownership of whatever experience you are about to have.

So I learned about designing conversations when I went through my co-active coaching certification. Actually, I learned about it just actually even in the classes before I got certified because we always have a design conversation when we start coaching a brand new client.

For example, we will talk about, "Well, how do you want me to hold you accountable to the coaching assignments that I give you? How would you like us to handle it when you come in and you haven't done it? How would you like us to handle missed sessions?"

And it's a process where it's not top-down because co-active coaching is always equal. We come together, together we're better.

It's kind of like what we do here at H2H. And that's where I learned about designing conversations. And so now the H2H crew, we've taught them how to design basically everywhere. People will come to me and they'll say, "Well, I co-counseled in this one case and we won, but I didn't get as much as I wanted out of it," and my question is always, "Well, what was your design?" And they'll be like, "We didn't have one." I'm like, "Well, there's your problem right? If you design ahead of time, okay, I will co-counsel with you. But how do we plan on splitting up the trial activities? How do we plan on splitting the fee," all of the things. If you don't have that conversation, then you're going to have a ton of miscommunications at the end of the line if not during.

You can design with your clients. I just did a podcast on that a few months ago where when your clients come in the door, you design with them how the process is going to go, how often they're going to hear from you, what they need. And you start that out at the beginning so that you don't anger clients throughout the entire process.

Malorie Peacock, who's fantastic, another fantastic trucking lawyer, she does designing with her clients around whether or not she gives her cell phone number to them. Here's the secret - she doesn't. And she says to them, which I just think is brilliant, "I don't give out my cell phone or I don't answer calls unless they're scheduled at my office because I don't want someone calling when I'm working say, on your file. Would you want me taking a phone call from another client when I'm working on your file? And likewise, I offer that same thing to all my other clients that when I'm working on their file, I'm only working on their file and I'm not taking phone calls or getting distracted by other matters." And their clients totally get it and it's brilliant and she has a life outside of the office because people aren't bugging her all the time on her phone. That's a design. She designs ahead of time. Brilliant.

So again, a design is a conversation you have ahead of time and it doesn't have to be just with work stuff. I remember when we went to Disneyland, the last time we went with my daughter, we designed ahead of time how we were going to handle every possible thing that could lead to a tantrum, both for me and my daughter because I'm also apt to have a tantrum when... I'm very impatient. I don't know if you know that about me. You probably could have guessed that about me.

But we were like, "What are we going to do as a family if we get separated on the plane and we have to sit in different seats?" There's no reason that that was going to happen. But what if it did? "What if our plane is delayed and we missed the first day? What if we don't get the hotel room that we wanted? What if the lines are really long? What if it's really warm?" And we had this whole conversation before we even got to Disneyland and designed ahead of time so that we could remind ourselves, i.e., Kevin could remind me what we decided ahead of time so we didn't have the moments that ruin vacations. Worked beautifully.

So when I first got into trial consulting, and when I was writing my book, I was going through my coaches training at that point, because I wasn't always a certified coach. In fact, if you've heard me say this before here I'm saying it again. It's not until I brought mindset coaching into my career, that my career really took off because I believe mindset coaching is everything. I have always had a coach. I will always have a coach. There are people who coach with Kevin who have coached with him for years. That doesn't mean that they're needing that hand holding, "I have to have a coach with me at all times". No. All it means is that it's a person that can help you see things that you may not be able to see because they're on the outside. It's just like what we talked in the collaboration podcast that came out a few weeks ago.

There's so much that can be done with people, whether that's one person, a coach, or with a group of people, that collaboration is utterly magical.

And that's honestly what coaching is. It's really collaborating on your life, getting another set of eyes on your life and helping you see the things that you don't see. But when I was writing the book and I was going through the coaches training and we were talking about all these design conversations, I thought, what is the most disenfranchised group in a courtroom? What is the group that has the least amount of power, the least amount of buy-in, the most top-down relationship? And I thought the jurors, the jurors are the most least informed, the group that doesn't want to be there. And so is it possible that we could have a design conversation with our jurors like we do with our clients in coaching calls where we bring them in and it doesn't feel top-down, "Here's how it's going to go and you're going to like it whether you do or not, you're going to have to do it."

That's when I designed the design for working with juries. It's the first thing that all of our H2H'ers do with a group of jurors. Before they start jury selection they say, "How many of you here have ever been a part of jury selection or seen it on TV or know someone, whatever it is?" Everybody raises their hand and they say, "How does this work? What is your concept of how this works?" And the jurors will say, "Well, you're going to ask us a bunch of questions." And the lawyer says, "And why do you think we ask you those questions?" And the jury says, "Because you want to know whether we're biased for you or against you." And the attorney says, "That's right. And once we find out the answer to those questions, what happens?" And they'll say things like, "Well, then you pick jurors that are for you."

Most jurors don't understand it's a deselection process. They think we literally can go in there and pick actual jurors. And the attorney says, "That's right. That's how it normally works. I would like to do it differently. What I would like to do is have a conversation with you about some of the principles in this case and based on that conversation, you tell me if you would like to be a juror on this case. How many of you would be willing to have that conversation?" Now every single juror raises their hand because they're like, "This is my way out of here." It's like dangling the carrot.

And then the next thing we say is, "Now there are two caveats. The first caveat is this isn't trial yet. So I can't talk about details and evidence. We can talk about some things, but we can't get into a lot of details. And that can be frustrating because as a juror, you know the least amount of anybody in the room and we're asking you questions about things that are in the case that we can't really tell you exactly why we're asking. And so that can be a very frustrating conversation. Knowing that, are you still willing to have conversation?" And most jurors raise their hand and say yes.

Second caveat, "If at the end of this conversation you tell me, I do not want to be a juror on this case, or I do want to be a juror on this case, then I have to tell you, I only get six preemptories or whatever it is in your jurisdiction and if there's more than six of you that want to go..." And by the way, this is an addition from Michael Cowen, which I love this edition, "Then I'm not going to be able to let all of you go. Or if you say you want to be here, the other side may decide they don't want you here. They get to make some decisions too. So knowing I don't have full control over who gets to stay and who gets to go, who's still willing to have the conversation?"

And we always have nearly the entire jury, if not the entire jury, I would say 99% of the time, the entire jury raises their hand. So that's the design.

And the reason we do it is to give jurors some ownership of the process, but also give them a way out. If they know they have a way out, they'll engage with us.

And what normally happens is when they engage with us, then they find that they actually do want to be a juror on the case and they end up staying and doing the good work of a juror because as we say, you stand on the side of the right. Most jurors want to do the right thing, and most jurors are already biased for you because most jurors believe in principles and your case is based on principles.

Now, it was a very long introduction into what I wanted to talk about, which is how do you do a design with judges? Because I think a lot of you are not using the H2H design because you're worried that you're going to have an objection or that the judge isn't going to like this. So let's pause for a minute and talk about why judges won't like this. And there is a number one reason why they won't if they don't. I have found that at least 80% of places that this has been tried, it's gone off without a hitch, not even a problem at all, probably even 90%, but I'm saying 80 just in case I'm not thinking of everything.

The number one reason that a judge will not allow this if they don't, (and again, most do) is for one reason and one reason only - it's unfamiliar.

Judges, many of them as we know... And I have judge friends and I love you, so just please pause or forward so you don't have to hear what I'm about to say.

But many judges, not my friends and not the people that I know, are new, have never tried a case, are from the defense side, whatever it may be. And judges are supposed to know everything. Talk about imposter syndrome. We tend to look at judges and think they're these big assholes that just do all this shit to try to fuck with us when I honestly believe in most cases, judges have more imposter syndrome than anybody else, and they see something that's unfamiliar and it freaks them the fuck out.

So instead of trying to get into a gray area that may back up on them in some way, they're just going to shut it down. Now again, that rarely happens, but if it happens, I find that that is the case. That is most of the time the case. So when Christy and I and this other crew member were working on this case, one of the ways we tweaked the design that I just shared with you is to say something like this, instead of there are two caveats and one is I can't get into the evidence, here's what we thought we might change that to.

Now there are two caveats to talk about. "The first one is the judge," so now I'm going to defer to the judge, "is not going to allow me to get into a lot of evidence because we're not in trial yet. And when I ask a lot of personal questions, oftentimes jurors want to talk privately in the judge's chambers. And as you can imagine, that takes a lot of time.

And so in an interest to be more efficient and to play by the judge's rules, what I'd like to do is to talk about the principles in this case and have a conversation about that. You can still share personal stories with me should you choose to, but this way I have found is much more efficient and helpful to the judge because as you can imagine, slowing down jury selection really slows down everything."

Now, can you imagine how that just sings to a judge's heart? It's saying, "I'm doing this for you, judge," which in many ways we are.

Now, the other thing that I wanted to add to that is what I did earlier, just off the top of my head because I was thinking about it, which is something I saw Michael Cowen do when he was just out here for a trial lab a couple months ago where he said in the part of, "Now, the second caveat is if you tell me you don't want to be here or that you do want to be here, I only have six peremptory challenges. That means I only..." Well, he says, "I only have six strikes." He doesn't even say preemptories, "Meaning I can only let six people go."

So that makes it a little bit more concrete too, so that we're not scaring our judges going, "Well, I'm going to try all my best to let all of you go." We don't say that, but that's what they hear. So if we make that more concrete, "I only have three strikes. I only have six strikes," whatever it is in your jurisdiction, that's going to help with your judge too. Here's what I want to point out is that so much of this in terms of the design is mindset.

When you do a design and you're thinking that we're trying to get away with something, that's where you get into trouble. We're not trying to get away with anything, nor are we doing anything wrong by designing. I want to continue to remind you that you stand on the side of the right and that we have allowed the defense to scare us into not doing things that we are absolutely entitled to do.

When we talk about jury selection as being a vehicle for ferreting out bias, is it not biased to not want to be there? That is bias because we know that that does not work out well for the plaintiff.

When a juror does not want to be there and is angry about being there, and we don't let them go, they often make a decision that is quick and fast, and that is rarely in the plaintiff's favor. So all of these things are oftentimes reactions to what we've allowed the defense to scare us into, "Oh, I can't do that. Oh, I'm going to get an objection. Oh, the judge is going to get on my case."

Listen, it's true that you have a certain number of strikes. It's true that you want to know who wants to be there and who doesn't want to be there. It's true that your case is about principles. It's true that conversations about principles ferret out bias. So nothing about the design is going against anything or trying to get away with anything. So I just want to say your mindset has to be right first, but I hope these little tweaks that I'm adding today to the design will help you smooth it over with the judge, so to speak, because it is helpful to the judge.

And also remember that the design doesn't have to be my design. Rip it off if you want. Absolutely. That's why I'm here. But the design is fluid. It depends on your jurisdiction, it depends on you, and it should fit you. Do it the way that you want to do it. The only caveat I'll say is if you do a design where you promise to ask the jurors at the end of jury selection whether they want to be there or not, make sure you keep that promise.

All right. Talk soon, my friends. Hope that's helpful.

Have you ever wished 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. It’s called Three Powerful Strategies to Help You Read a Juror's Mind, and it will help you understand what the jury is thinking so you can feel confident and trust yourself in the courtroom.

Ready? Head to sariswears.com/jury and enjoy!