Voir Dire & Preponderance – Expert Strategies for Trial Attorneys

Let’s talk about the preponderance of the evidence.

You know, the thing that’s supposed to make your job easier but somehow ends up confusing the hell out of your jury? 🤯

In this week’s episode, you’ll learn how to STOP shooting yourself in the foot during voir dire.

🎙️ Tune in and fix your voir dire strategy today.

Xo,
Sari

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"So if what they want is to really be sure before they hand over this money—which again, yes, it’s not their money, but they’re in charge of it for all intents and purposes—and what they want to be able to spend it or allow it to be spent is to be sure, let’s do things that make them sure. Let’s remove their objections and their doubts. And as you know, if you follow me, the best place to do that is in voir dire."
sari de la motte

TRANSCRIPTION

Hello, everybody. Welcome to another episode of From Hostage to Hero.

Sari de la Motte with you today, and we're going to start with a reader shout-out. This is from Joe T. on Trial Guides' website. He titles his five-star review,

⭐⭐⭐⭐⭐
"Must read. Breathing, never even thought about it. Read it twice already, the first time quickly and the second time with my highlighter. Third time will be to grab the ideas so I can condense them for use."

Well, Joe, I hope that you are enjoying your third read-through of the From Hostage to Hero book. And if you have not given us a review yet, go to trialguides.com, and you can do that there, and/or go and review it wherever you listen to your podcast.

Alrighty, well, lovely to be with you today. Hopefully, your life is going great. I've been meaning to do this podcast for a while because this has been coming up quite a bit in the Crew and both with my private clients, and that is the question of whether or not you should talk about preponderance in voir dire. So let's talk about it, shall we? Because my own thoughts on this have evolved since I got started in this field, and I want to share with you where I've landed. And regardless of where you've landed, I hope to give you some pointers today on how to actually deal with this issue—the issue being that in civil cases, we have a lower burden of proof that we need to meet, a lower standard called preponderance of the evidence. Clear and convincing is another one, but today we're talking about preponderance.

We want to make sure that the jurors get this, don't we? So we try to build it into our voir dire, and then we try to go in and do the cause challenges. And you know what? It just is a dumpster fire from beginning to end.

I have never seen it work well. I have never seen anyone do it where the jurors actually understand it. In fact, so many of you have said to me, "I don't really even understand it." So this is going around.

Here's how I've dealt with it in the past. I've done things like suggest that we start by drawing the parallel between criminal standards and civil standards, so asking the jury things like, "Who here has ever heard of 'beyond a reasonable doubt,' and where have you heard that? What does it mean, and what types of cases does it apply to?" So you get them thinking, okay, it's criminal cases.

Then you say something like, "In civil cases, we have a different standard, and it's called preponderance of the evidence, which is basically just a fancy way of saying 'more likely than not.' Now, some people think that's unfair. They think that it makes it too easy on us. Some people think, 'Well, that's the rules, that's the rules.' So which way do you lean?"

That's how I've taught it in the past, and it's worked. But here's the reason why preponderance—regardless of how you've dealt with it in the past, whether you've done my method or your own method or some other way of doing it—no matter how we frame it, it appears to the jury as though we are trying to get away with something. And isn't that what we're saying? It's like, "Listen, we don't really need to prove this that much, and knowing that, can you follow that rule?"

Here's the thing you have to understand about juries: every juror, every person, before making a decision, wants to be sure. They want to know, and they want to be able to know that what they're doing is right, that they have evidence for what they're doing. This is why, when we're trying to make a decision about something in the future, if we don't know how it's going to turn out, it's very, very difficult.

Now, add to that the problem that what y'all are dealing in is money. So now we're asking jurors to make a decision about money, which is something that none of us want to part with. Even though it's not the jurors' money, they still have money stuff. So even though it's not their money, we're asking them to make a decision about money based on the least amount of possible knowingness or being able to be sure going forward, and that's very, very difficult for anyone to do.

So when you think about how you already come into trial being the underdog—being an attorney, first of all, not a good thing, but being a plaintiff attorney—they already think that you are an ambulance chaser or a shark. And now we come in with this part of the voir dire where we're like, "We're here to ask for money, and on top of that, we really don't even need to prove it that much. Who here has a problem with it?" It's just a non-starter.

So here's what I'm going to suggest to you—and this is going to be a short podcast today—but here's what I'm going to suggest: consider dropping it. I know, I know, I know. I know you want to say to the jurors and make sure they get it, but one, as we've discussed, you don't know how to do it so that they get it. And two, even if that was possible, even if we got them to understand the concept that we do not have to prove things beyond a reasonable doubt, guess what? They're still going to require it. They're still going to require that you prove it more than "more likely than not." That is just the human condition.

And we can sit here, and we can complain about that, and we can talk about how unfair that is. And I keep coming back to Rick Friedman, who says, "If the process were fair, you'd hardly be needed." So let me just validate you and say it is unfair. But let's stop shooting ourselves in the foot by trying to explain it to jurors when what they're hearing is the message that we are trying to get away with something.

So again, put up against the idea that we are already these ambulance chasers and sharks, and now we're trying to pull something—pull some wool over their eyes, try to get away with something—is just not a good look for any of y'all to have. All right? So knowing that it hurts us versus helps us, and even if we could get it across without hurting us, they still, in their heart of hearts, are going to require that you prove it beyond whatever the standard is in our cases.

What can we do instead? Here's what you can do instead: you can actually make them sure. So if what they want is to really be sure before they hand over this money—which again, yes, it's not their money, but they're in charge of it for all intents and purposes—and what they want to be able to spend it or allow it to be spent is to be sure, let's do things that make them sure. Let's remove their objections and their doubts.

And as you know, if you follow me, the best place to do that is in voir dire.

If we take the opportunity in voir dire to enroll jurors in our case and deal with their objections and have them solve our problems for us, then we start to make them sure. Then they start to believe that what we're saying is beyond a reasonable doubt, which is, in their mind, the standard that they're having us meet. See, we're wasting all of our time trying to tell them what the rules are and trying to show them that that's the actual just thing, when even if they agree with us, they're still going to require more.

That's the part we got to wrap our arms around: we got to recognize that they're still going to require more. So if they're requiring more, let's give it to them.

Now, you've heard me talk about the issue-oriented voir dire and the funnel method, and if you haven't gone and listened to either one of those, go back and just search through the podcast for "issue-oriented voir dire" or the four questions to have jurors give you the principle in your case. But the basic gist is, when you understand what your problems are in your case, you can ask questions that help the jury—or allow the jury—to solve that problem for you.

Let me give you an example. We were just working with a client this last week on a brain injury case, and one of our questions in voir dire was, "What are some of the things you'd want to hear about at trial to help determine the size of your verdict?"

So they went through and they said, "Well, I'd want to know if the person was able to work. I'd want to know what their physical limitations are. I'd want to know whether they were married. I'd want to know if they had kids." And so it started going down this road where we began to think the only way that juries would allow money in their verdict is if the person had a good job, was young, was married, and had kids. That would be the thing that would win the jurors over.

So instead of freaking out about that, we threw out what I call the "devil's advocate" question, and you can go back and listen—we've got some podcasts on that as well—which is, "So are you saying then that the brain is only valuable if you're married, have kids, and are a doctor, and you're young?"

And it was so amazing how the jury just said, "No, no, no, no, no. That's not what we're saying at all." It was so interesting to watch that happen. And this is what we can do if you really craft your voir dire well, because here's what I see you all doing: you're going in your voir dire, and you're wasting your time asking questions about hobbies.

You're wasting your time asking who's a manager at work. You're wasting your time talking about preponderance and who likes lawsuits and lawyers and who can give money—which, the answer to that is nobody. Nobody likes lawsuits or lawyers or likes to deal with money—instead of getting jurors enrolled in your case so that they're intimately connected to what the principles are, so that we get them over to the standard which they're going to require in the first place.

That's what I want you spending your very, very precious voir dire time on.

Now, if you are still wanting to attempt to talk about preponderance, I'm not going to stop you, but what I am going to tell you is that you can do it a little differently than what you've been doing. What I'm hearing most of you say when you talk about preponderance is, "We only have to prove. We only have to prove that it was more likely than not," or finish the sentence your way.

So if you still want to talk about preponderance, I'm going to suggest a way to reframe it: put it on the jury. "You're going to have to decide..." Notice the difference: "We only have to prove" versus "You're going to have to decide." Because when you put it that way, the first way sounds like we're trying to get away with something—we only have to prove, we don't have to prove that much—versus "You're going to have to decide," meaning your job is easy. So you're making it easier on the jury.

Notice how—and I've talked about this in previous podcast episodes—everything we do, we take from the jury. We just take, take, and take some more. So here's the same thing in preponderance. We're saying, "Listen, jury, here's your job: you have to stay; you have to answer my questions"—we just take, take, take. "Oh, and on top of that, you have to do this job and not really require that much of us. So who's in?" That's not anything that anybody wants to participate in.

So if we're going to talk about preponderance, why don't we give to the jury instead of taking from them? "Listen, your job is easy. You merely need to decide if it's more likely than not that this happened," or whatever it may be in your case. That's if you want to talk about preponderance at all.

Just notice, though, how we deal with jurors. Even in preponderance, we're taking from them. We're saying, "We don't want to give you enough proof." Even when you go in, you go, "And even though we're going to prove it beyond, we still don't have to..."—it doesn't help you. It still sounds like you're trying to get away with something.

Let's stop taking from jurors and either focus our voir dire on enrolling them in our case, or if you're going to talk about preponderance, make it a gift you give them versus something you're asking them to do without.

That's what I got for you on preponderance, my friends. I will talk to you again next week.