FHTH Ep. 268 - Beware of the Negative Teaching Section

Let’s get one thing straight: if your opening statement is just a list of “what shouldn’t have happened”, then you’re setting yourself up for FAILURE.

In this week’s episode, we’re breaking down HOW to captivate the jury’s attention from the start and teach them the right way to look at the facts — starting with the teaching section in your opening statement.

Here’s what you’ll learn:

⚖️ Why the “what not to do” approach doesn’t work and what to do instead.

⚖️ The strategy that makes the defense’s case look like an intentional mess.

⚖️ The secret to guiding jurors to see the defense’s actions for what they are — choices, not accidents.

Ready to own the courtroom from the very first word?

Ya know what to do. 😉

Xo,
Sari

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"When we tell the jury, ‘Here are the things to do,’ we can frame the defense’s actions as choices. They chose not to do this right, they chose to cut corners. But when we say, ‘Here are things to avoid,’ it feels like we’re suggesting the outcome was guaranteed unless they avoided these things. Showing the right way makes the defendant’s actions stand out even more."
sari de la motte

268 Transcription

Welcome! Thanks for being here. I know that I walk with several of you in the morning, and I’m glad that you’re on your walk and we’re walking and talking together. I wish I was there. We could hold hands. We could get corndogs. That’d be weird. I don’t like corndogs. Corndogs are weird. Kevin loves corndogs, and my daughter—he obviously passed that on to her. You all, email me and let me know if you like corndogs, because I’m going to say no to corndogs.

Anyway, I wish I was there. That’s the whole point. Today, we are talking about something important: Beware Of The Negative Teaching Section.

What am I talking about? Let’s dive into the H2H Opening Template. I won’t cover the whole thing, but I’ll go over the first three or four pieces.

The first piece, piece number one, is the Hook.

The hook is exactly what it sounds like. We need to hook the jury’s attention. This is often a rule, but other times it’s an impactful statement—what we call a compelling statement. It’s rarely ever longer than two sentences, and most of the time it’s one sentence. It really just functions to grab the jury’s attention.

The second piece is the Teaching Section.

This is the section we’re focusing on today. The teaching section shows the jury the right way to do something. It’s the "here’s what should have happened" part of your opening.

Next, we go into the Defendant’s Story.

I wish I had named this part differently because people often think I mean, “Let’s talk about what the defendant is going to say, their spin on the case.” That’s not what I mean. The defendant’s story is where you talk about what the defendant did—how they caused this.

This is the "what did happen" section. If you take the teaching section—"here’s what should have happened"—and line it up with the defendant’s story—"here’s what did happen"—the jurors can put two and two together. When you get to why we’re here, they can say, "I know why you’re here. You said this was the right way, but they did it the wrong way." This alignment is a great way to connect these two pieces in a trial. In fact, these are my favorite two pieces in the opening statement.

Now, I was working on a MedMal case where they were using the teaching section, and here’s what I want to share about it. The way you put your teaching section together is to start with what we call ‘danger in the air.’ After your hook, you say something like, "To do your jobs in this case, you’re going to have to learn about X."

Maybe X is birth injuries or how babies are born in hospitals. Most births go just fine, but sometimes—then you talk about the danger—a birth can go wrong. You’d likely give more examples depending on your case.

The point is that in your teaching section, you start by saying, "Here’s the danger." Then, I always like to use the rule of threes:

"Here are three things doctors do to avoid that danger."

Thing one: They do this.
Thing two: They do that.
Thing three: They do this other thing.

If you can make them all start with the same letter, great! But it doesn’t have to. It’s great because it’s sticky, but it’s not mandatory. These three things are what the jury will remember when they go back into the verdict room.

In this particular case, their teaching section included three things that all started with the same letter. It was super slick, sexy, and sticky, which might be why I didn’t notice what was wrong at first. Instead of saying, "Here’s the danger, and here are the three ways to avoid it," they said, "Here’s the danger, and here are the three things the doctor shouldn’t have done."

Now, hear me: this is what we don’t want to do.

"Here are the three things they shouldn’t have done" is very different from saying, "Here are the three things a doctor does to make sure this danger doesn’t happen."

Let’s talk about the difference. It’s a slight one, which is why I didn’t pick up on it immediately, but it’s actually huge in terms of impact.

Here in Oregon, you probably know it rains a lot—a lot, a lot. People often say, “I love it here; it’s beautiful, but I couldn’t handle the gray and the rain for nine months,” and yeah, it does rain a lot. I love it. I love being inside when it’s pouring, especially in the fall, with leaves falling, hot tea, and my hottie—my husband. It’s the best. Cuddles, tea... and whatever that leads to.

Anyway, I digress. Hydroplaning is a big thing in Oregon. The rain mixes with oil on the street, and accidents happen. Now, imagine if I wrote out how not to hydroplane, and my dad’s voice is in my head because he taught me this.

First, don’t slam on the brakes.
Second, don’t lock the steering wheel.
Third, don’t go too fast when it’s raining.

Notice how this is all about avoiding hydroplaning—not about driving safely on wet roads. That’s the issue.

The teaching section isn’t about avoiding danger; it’s about showing the right way to do something. Instead of “Here’s how to avoid hydroplaning,” we say, "Here’s how to drive safely on wet roads."

For example:

"Slow down."
"Tap the brakes, don’t slam them."
"If you skid, steer into it."

Notice how these are things to do versus things to avoid. That is always better in a teaching section.

Why? Because when we are telling the jury, 'Here are things to do,' we can now frame what the defense did as choices. They chose not to do that. They chose not to do the second thing, and they chose not to do the third thing.

But when we frame it as, "Here are the things to avoid," now it's almost like we're subconsciously saying, "The outcome is nearly guaranteed unless you avoid these things," versus when you choose to do things the right way, the bad outcome seems like a non-starter. It's like, "That's not going to happen."

Do you see what I'm saying? It's very slight, but one is like, 'This is probably going to happen. To make sure it doesn't happen, avoid these things,' versus the other one is like, 'Here's the right way to do this so that nothing bad happens.' It's a very, very different energy, I guess, is what I'm saying.

With kids, for example, we don't tell our kids to avoid lying. We tell our kids, "Tell the truth." We tell them what to do. It's important to tell the truth. We don't say, "Make sure to avoid lying. Make sure you don't accidentally lie." That's what that sounds like. We tell them the importance of telling the truth.

When we're dieting, it's much better to say—I don't even love dieting, but I'm saying when we're trying to eat better—we want to talk about what to eat, to eat a balanced diet. Make sure you get lots of fruits and vegetables and whole grains versus, "Don't eat Twinkies. Avoid Twinkies." Notice how that doesn't really tell me what to do; it just tells me what not to do. It doesn't help me eat better. I can stop eating Twinkies, but then if I'm still eating Ding Dongs, same problem.

When you're training somebody at work, we don't go, "Here are all the things we don't want you to do." We say, "Here is the way to do it right." It's a very big difference, can you imagine?

Right now we're in a process of putting all of our things in our world into a process, meaning everything at H2H—from uploading a podcast to booking a speaking event—is going to have a process attached to it, written and video. In that way, anybody can do anybody's job. If somebody leaves for maternity leave, or they are sick, or they've gone on to do something better—which that's not possible because working for me is so much fun; it's the best job in the world—but let's say that they went crazy and they left.

Anybody can come in and be trained. We have a process and a video describing the process for absolutely everything that we do in the business—everything. And that's a big project. We've been working on it for a year. It's still not done. It'll probably never get done. We're going to constantly be doing new things. We're going to constantly be updating our processes.

But can you imagine if we spent all this time creating a process on what not to do? When you're uploading a podcast, don't upload it here, and make sure you don't do this thing. And when you're talking to someone about a speaking event, don't do that. The person reading it would be like, "What am I supposed to do? You haven't told me what I'm supposed to do; you've just told me what I'm not supposed to do."

We also are thinking about this negative teaching section, so to speak, that you want to avoid. Also, think about the two questions that every plaintiff attorney that I talk to all the time needs to answer. There's two questions, and the first question is, how could this have been avoided? I do not want you to get stuck in your brain because we are using the word "avoided" to talk about—and that's maybe how this one person went down this road because they heard that they could avoid it by avoiding these things.

No. Hear me now: the ultimate avoidance, the ultimate way to avoid any wrongdoing, is to do it right. That's what our teaching section should be teaching. The way to avoid this from happening is to do it the right way, not by avoiding the wrong things.

If my kid leaves Legos all over the floor and Kevin's coming home from a concert—because he's a weirdo and he goes to concerts by himself; I don't want to ruin my hearing more than I already have ruined it. I don't know why—I haven't ruined it; I haven't gone to the concerts. Kevin's hearing is fine. I'm having tinnitus in my right ear. Thanks for asking. I know it's an issue.

Anyways, let's say he's coming home late at night. I can text him and be like, "Avoid stepping on the Legos when you come into the room." Or you know what else I could do? I could have my daughter pick up the Legos. That's the right way. The way we avoid foot injuries—Lego foot injuries—is by not having Legos on the floor in the first place. Yes, I can tell my husband, "Avoid them," but that's not going to solve the problem.

You're always, always, always in your teaching section talking about what should have happened the right way, not what shouldn't have happened. That's in the defense story. Check your openings now in that teaching section and make sure that you're telling the jury the ways to do it right versus, "Here's what they should have avoided doing wrong."

I hope this makes sense. It made sense in my brain. And of course, when it makes sense in my brain, I try to share it with you. Always feel free to email me and let me know if you have any ideas on the podcast or things you want me to talk about. You can do that at info@saridlm.com.

Talk soon, my friends.

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!