Season 8 – Episode 5: 7 Words or Phrases You're Using in Trial That are Damaging Your Case

Have you ever heard a phrase in court and cringe a little?

Not because it’s wrong, but because it’s so… overused.

We’ve all said them.

BUT.

The game has changed. Jurors are sharper. Attention is shorter.

And credibility is everything.

So in this week’s podcast, I’m breaking down 7 phrases that are killing your case and offering better ways to build connection and trust.

Tune in NOW! 🎧

Love,
Sari 💖

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“The reason we say things like ‘you must be fair and impartial’ is because we’re trying to sound lawyerly. But that language doesn’t move people. What moves people is truth. When you speak from principle — when you say things like ‘we hold people accountable when they hurt others’ — you connect with jurors on a human level. That’s where your power is.”
sari de la motte

transcription

Welcome to another episode of Sari Swears. Hey everybody, I am so glad for you to all be back and me being back is fun as well. And I'm wearing my Don't Mess with Mama t-shirt. I shouldn't have told you what the t-shirt was so you could come and watch it and if you're like, "What? Watch it? Why would I watch a podcast?" Join the cool kids. Apparently now podcasts are things that you can watch. I don't know why that's a thing, but it is. And so if you want to watch this podcast and see me gesticulating, I love that word, gesticulating, then you may do so. I give you permission at youtube.com/@SariDLM as in de la Motte @SariDLM. So you can go over there and you can watch. I'm still trying to figure out what to do with my hands so I'm not hitting the microphones and all of the things. But we're rolling and welcome again to the brand new Sari Swears podcast.

All right. Today we are talking about the seven words or phrases that you are using in trial that absolutely makes me cringe. No, that's the title I wanted to go with, but what we actually went with is, That Are Damaging Your Case. Because both are true, but I think it's more important that I not barf while I'm hearing these things come out of your mouth, don't you agree? Isn't that much more important than damaging or not damaging your case? I knew you would agree.

So these are phrases that I've heard enough times from the people who've come out and played with me in front of a mock jury, the things that are happening in the H2H playground that I was like, all right, I'm going to do a podcast on these seven phrases. In fact, I'm going to give you a freebie before we even get started because otherwise I would have to rewrite my notes and I thought of it after I wrote my notes. Or have eight things and that I like the odd numbers. Although our brand new lead magnet is called Eight Strategies for an Eight Figure Verdict. And if it's not already out at this recording, it will be out shortly and I'll let you know as soon as it is out, how to get that free beautiful lead magnet. I guess I'm not supposed to say lead magnet, right? But really it's like we want to have you have good things so that you will stay in contact with us. So that's why they called that, I guess.

Anyway, here's the freebie. The first one, I'm nervous. If I hear one more y'all say this to your jury, I'm going to have to slap your face myself because here's the thing. When you share, I'm nervous, to your jury, what you're doing is asking them to fix that for you. Now, I know you're not saying, fix that for me. But you're saying it for a reason, right? So you're saying it either to explain away the nervous stuttering or walking around or whatever you're afraid that they're going to see, you're going to give them a reason for why they're seeing it. And here's why that's a problem is because we don't want to see that shit. So I'll talk about that in just a minute. Or you're saying it in the hopes of being relatable and look, I'm just the average guy.

Here's what I'll say about this. If you are nervous, there's nothing wrong with being nervous. But you don't need to tell people you're nervous. You have got to have strategies to fix that yourself. Because here's what every audience in the known universe wants from their speaker. They want to know that you've got this. And you can ... got this. I guess, you can have this and still be nervous. Those two things are not mutually exclusive. But you don't want to put that on the jury. They don't want to hear that shit. So there's your freebie.

Okay, the next seven phrases I've tried to put in order of least cringey-ness or damaging to your case, to most damaging. I may decide differently later on an order, but this is what I think is the least cringey to the most. But I would hope that you stop doing all of these things.

All right, so the first one is, oh my god, so cringey, I can barely even say it. Where did y'all learn this? Because you all do it. I've heard it so many times and it is my privilege and honor to represent, insert plaintiff name. Okay, okay. First off, barf. Just barf. I hate when I hear that. And when I started thinking about why do I hate that? And/or why is it damaging to your case? Because I know that's actually what you care about is one, when you say it, it's one of the very first things you say normally. And you have zero credibility at that point. They have all of their thoughts and beliefs about who plaintiff trial lawyers are and what it is that you're there to do. And when you come out and say that, it feels gimmicky. It feels like you're saying, I know that you think I'm here just for the money. But I'm not because it's like a big privilege and honor to represent my client.

No, no, no, no, no, no, no, no, no, no, no. There is nothing that you are gaining from that. If you believe that that is somehow going to affect the jury in a way that they're like, oh my gosh, they really want to be here, they really love their client. It's not going to do that. It just won't do that. In fact, it has more potential to harm because it feels gimmicky than it is to help. So stop that shit.

Now what do you do instead? Well, if you're asking me, thank you for asking. What should I do instead, Sari? To start off, voir dire? What I always say is just start voir dire? Now we have what we call the Designed Alliance and you can go in on our website at SariSwears.com/podcast and put this in the search. It should come up with the Designed Alliance, I probably talked about it many times. But that is our way of getting buy-in from the jury before we get started, and it has nothing whatsoever to do about talking about being privileged and honored. Just take my word for it. It's just so cringey and so gross.

All right, number two. Number two, second thing. Very closely related but not as gross and barfy is my client. You guys will say this all the time, especially in voir dire. You know my client, I'm here representing my client, or my client has gone through this, or my client this, or my client that. You may even do it in opening, but I hear it a lot in voir dire. And the reason why I don't want you to say this one is I don't want you to be associated with the plaintiff just yet. Remember, the world thinks that you're a shark, that you're an ambulance chaser, that you just are there for the money. And we want to try to keep those cooties off of the plaintiff as long as possible, right? Let's build some credibility before we associate you with them.

And you may be thinking, but they're already going to know, we're going to be introduced, I'm going to be sitting at the table. All of the things. This is very much like when people say, why are we hiding this fact voir dire? We're not hiding. But why aren't we coming out with fact A in voir dire ... or not that we talk about facts. What's the better word? I don't know if this is a sex abuse case. Why are we waiting until our third funnel to talk about that? Sorry. They're going to know it's a sex abuse case because the judge is going to read the statement of the case.

And what I always say is, yeah, and that goes by really fast and they're not going to be in that space when you're standing in front. They're going to be paying attention to you. And yes, they may remember, but we still have so much power to unfold the voir dire ... and see, I'm already having trouble. Where do I put my arm? As we like it instead of going, well, we already talked about that so they remember. No, no, no, no, no. So same thing here. Yeah, they may already associate you with them, but we don't want to keep reinforcing that at the beginning. That's my client, my client this, my client that.

Now the second reason is we also want the client to kind of feel to the jury as this person that's just floating out there and needs help. If you're like my client, I've got them, I'm protecting them. Then there's no reason for the jury to do their job. It's a small thing that's why it's number two. It's not a big deal. And of course, I don't think you have cooties. At least not those kinds of cooties. I think you're amazing and the only thing that's standing between us and absolute corporate greed. But can we, at least at the beginning, try to keep that clean and just be there and not associate yourself with the plaintiff right away? Through privilege and honor or my client or any of that. Just let your client be floating out there, friendless and alone. And let the jury want to come in and fix that for them.

Okay. Number three. Number three, oh my God, you're so cringey. Number three is you jurors are the most important people in this entire room. All right. First off, that's cognitive dissonance. As you've heard me talk about before with the scarf model, remember the scarf model is a model that says based on these five factors, we're either going to reward the brain or we're going to punish the brain. And so those five factors are status, what kind of status do you have in the group? Certainty, how much certainty do you have? Autonomy, how much freedom do you have? Relatedness, how many people do you know? And fairness, does this process feel fair?

And I've talked before about how we dingers on each of those five factors. Their status is not high because they don't have the other things. They don't know what's going on, they have the least amount of information in the room, they don't have the autonomy, they don't know anybody, they feel like this is unfair. So they've been forced to come and sit and do and answer ... all the things that just scream, you don't have high status. So when you say, you guys are the most important people in the room, and in fact you're trying in some way to say you have status. Even though that's true, even though they are the most important people in the room. And actually it's not totally true because in jury selection, not all of them are. The twelve or eight or six people that get chosen will be. So actually it's not totally true.

But anyways, even if it was true, they don't feel it yet. And so you are creating cognitive dissonance and we don't want to do that for our jurors. Because they're like, What? Am I the most important? This guy's a liar. Do you want the jurors to think the first thing out of your mouth, even something as innocuous as that, is a lie? They already think you're a liar. They don't feel important, stop telling them they're important.

Now, can you ever tell them that? Yes. As in with most communication, it all comes down to timing. In closing, you can tell them they're the most important people in the room. But not in voir dire because they don't feel important, they didn't choose to be there. So stop saying that. Again, what do I do instead? Well, you can still say it, but later in closing.

All right, number four. Here's a word that I want you to stop using and that word is award. Again somehow, maybe it's because it's in jury instructions or it's on verdict forms, maybe not all of them. Or I don't know where you guys got this from. But I've heard so many of you, I think because you're not actually thinking about it, the word award, I want you to award, we're asking that you award the plaintiff, we're asking for an award in the amount of. And unfortunately, the word award, it sounds very close to an award or a prize. And that's not how we want our jurors thinking about the money that they're going to allow in their verdict, which is actually the way that I prefer you speak about it in two different ways. You can say ... Well, let me hold on to number five because it's connected with that one. But just say, just knowing that the award connotes the word prize, we want to avoid it.

It's very similar to, I just came out of voir dire circle this morning in the crew, which is where we get together to practice voir dire every month. And one of the attorneys said, "Who here has ever drunk water?" And it was a case about this bacteria in water, and so we wanted to start with a really easy funny question. But when you hear the word, I'm like drunk. And he's like, yeah, I thought it was drunk. But it's actually drunk. And I was like, okay, well whatever it is, we're not going to say that. Because you can't get over it. When we hear the word drunk, we think intoxicated. So same thing here, even though it doesn't mean prize, even though that's not what we're asking the jury for, it sounds like a prize. So stop using that word.

So what you do instead goes with number five because this is very connected to number four. And in that way I probably could have combined these and given you the first freebie as one of the seven. Anyway, what is that? Something's 2020 when you look back ... see, Kevin's not in the room so he can't even tell me. Anyway, Number five is asking you to give. When that comes out of your mouth, ooh, I cringe, right? When you say to the jury, "And so what we will be asking you to give is $50 million." Or, "We are asking in this case for you to give $100 million." Asking you to give. You're not asking the jury to give. What that connotes is, it's coming out of your pocket.

Now I think the jury knows it's not coming out of their pocket and I think you know it's not coming out of the jury's pocket. But a lot of what we work on here in H2H, I mean there are absolutely nuts and bolts skills that absolutely boots on the ground. But a lot of the things that we share with you, especially in the crew, are nuanced. And you'll recognize that ... and sometimes people come out and they'll be like, oh my god, now you showed me a hundred different ways that I can fuck my case over. And we say, no, no, no. I want you to think about these are a hundred different toys you can play with. Here's one of them.

So it's nuanced. They know it's not coming out of their pockets, but there's a subconscious uncomfortableness with, I'm asking you to give. I want you to give this. It feels uncomfortable, even though cognitively and logically we understand that we're not asking them to actually write us a check for $50 million out of their bank account. I want you to stop using both awards and asking you to give. What I'm going to ask you to do instead is two things. One is, allow. I like that one.

For example, we put in context and what we are asking you is to allow a verdict of $50 million in this case. To me, it sounds like a door that just swings open. There's this door, maybe it's the door of a safe. If you want to think of an analogy, just for you, not for jurors. And there's money behind it and all the jurors have to do is open the door. Because that really is all they have to do. They just have to open the door. So I like to allow it. But another one that I like is just returning. We're asking you to return a verdict of $50 million. So stop asking them to give, even though they know that it's not them that's going to give it. It's uncomfortable, just the words we're asking you to give. That's number five.

All right, we're getting to some serious ones now. I mean those last two are pretty serious, I think, but number six is around preponderance. Maybe you've heard me talk about this before, but I got to say it again. This whole, we only have to prove. Every time I've asked or I've watched someone do preponderance in voir dire, talk about preponderance. And this applies even when you do it in closing, which is why I suggest you do it. Although I'm coming around to the idea of doing it in voir dire. More on that probably in a later podcast. But when you say it, whether it's in voir dire or closing or wherever, we only have to prove, more likely than not, what the jury hears is you're trying to get away with something. Every time, all the time.

Even if you explain, this is a law and the judges can tell you this is the law you have to follow and you have to follow it. And people are going to be like, I get that, but I couldn't. I couldn't make a decision based on more likely than not. Think about any decision that you want to make in your life. I mean, is it more likely than not? Is that the standard you use? No. Most of us want to be sure beyond a reasonable doubt, right? We want to be sure in our decisions and especially jurors that are doing a job for someone else. Yes, they are doing this for themselves too in their communities. But it's a plaintiff represented here. They want to do it right? I know we think that they don't, but they do.

And so often most jurors that would be good for us will talk themselves off the jury just on the preponderance thing alone. And you might think, well, that's great. Look at all those challenges. And I'm saying, we're losing good jurors who at the beginning want to do a really great job and hear this, we only have to prove business and talk ourselves off the jury. That had they actually gone through the process, they could follow the law and really understand it in the end. Again, I am percolating on how we do this in voir dire to not lose those jurors. But stop using that language.

So whether or not you say it in voir dire or you say it in closing. What I'm suggesting now until I do more research and thinking on this, is that you turn it around. So instead of, we don't have to prove, we're trying it away with something. You're going to say instead, you only have to decide. You're going to give it as a gift to the jury instead of something that you're trying to get away with. In this case, this is why I like doing it in closing, you are going to go through this verdict form. And what you're going to have to decide is whether or not they caused this injury. Let's say you're talking about the liability piece.

Now here's the good news, you don't have to be a hundred percent sure. You only have to decide based on something called preponderance. That just means, what's more likely? Is it more likely than not that they caused it? This versus any of the other things that they're talking about. And that makes it easier for you. So again, we offer it as a gift versus something we are trying to get away with. So instead, we only have to prove. It's, you only have to decide based on this. Look how much easier it is for you.

I think that's dangerous because I think credibility is always an issue. And especially if you just talk about preponderance and voir dire and you do the whole, we only have to prove, you ruin your credibility because it sounds like you're trying to get away with something. And you probably will get a lot of jurors off for cause if that's your thing, if that's your fetish, I'm going to start calling it that, that's your fetish. But here at H2H, we want to build a team. And of course, we want to get rid of people who can't follow the law. So of course I'm thinking through that. But we don't want to ruin credibility, which is something we only have to prove. As much as we tell them that's law, it still sounds like we're trying to get away with something.

Okay, number seven. I think this is the most dangerous thing that I hear y'all do. And that is especially with our price versus value, which is the way that we talk about damages in voir dire in H2H. Where we talk about there are certain things that come with a price tag. Those are your economic damages. So those are bills, receipts, those are the easy damages. Those are things that you can add up with the calculator, check our math. Those are the easier damages as a juror that you're going to have to decide.

But then there's a second type of damage that you're going to have to decide and that's called non-economic damages. And those are more difficult because they don't come with a price tag. And before I say that and we go on to say, but they have value. Just because they don't come with a price tag, they still hold value. So before we talk about how you might do that as a juror, can you share something with me in your own life that holds value that doesn't come with a price tag? Now notice I continue to say that doesn't come with a price tag. I never say, that's priceless. And I've actually heard that come out of your mouths. You don't want to say that because when you say, it's priceless. You're saying it can't be done. You're saying the jurors can't do their jobs. And their very job is to put a price tag on things that don't go with the price tag.

That's exactly what we say after that part of our resident conversation where we're like, yes, tell me something that you value. I value my family. What do you value about your family? Oh, I'd love to spend time together. We have this great conversation and we go, yes, all of these things have value, don't they? Now, here's the bad news, you're going to have to put a price tag on things like the things you shared with me, that don't come with a price tag. That's why it's difficult to be a juror because you're going to have to put a price tag on things that don't come with one.

Now, people are saying, why do you say it's hard? Because it is hard. It's hard for you to do it. We're not being honest if we don't say it's hard. What I find when we tell jurors that it's hard is that they hear it's important. And that they really feel like they're doing something important. Because the next thing out of my mouth is knowing that that's difficult, can I ask who here would be willing to try? Now add the, to try, because I want to make it sound like it's something they're going to attempt. And we have the most beautiful conversations of all these people, I'd be willing. Tell me why you're willing. I think it's really important. Or I'd want someone to do it for me. It's this beautiful conversation.

But notice that we never say, priceless. Now, sometimes jurors will say that. So they'll say, I want to try, but if I think about my daughter who I just told you is something I value that doesn't come with a price tag, she's priceless. There isn't a number I could put on her life. And so if a juror brings it up, then we respond with, well, that's exactly what you're going to have to do in a case like this. And again, that's why I said it's hard. So are you telling me that you wouldn't be able to? And boom, we go in for a cause challenge, right? But what I'm saying is we don't want that to come out of your mouth. Because that says it cannot be done. By the way, I've heard people say, telling them it's hard means it can't be done. No, no, no. That's not what says it can't be done. That just says it's hard. Telling them it's priceless, that there are things in life that are priceless, is one, lazy language, that's not what you mean. And two, that absolutely tells them it cannot be done.

So stop saying, it is my honor and privilege. Stop saying, my client. Stop telling them that they're the most important person in the room. Stop using the word, award. Stop asking them to give. Stop telling them, you only have to prove. And get the word priceless out of your vocabulary. And of course, don't tell them that you're nervous. Those are the things that we're going to make your Finnish mama cringe. But again, more importantly, really can do damage to your case in these small but insidious ways that again, we only have a few seconds to make a first impression. If that's what you're using right out of the gate and I've seen people do all of these things in a single voir dire, they add up. Hope that helps. Talk to you next week.

Last call for Command the Courtroom this year. We've got two left. One in October for damages, October 16th and 17th, and one in November for opening, November 13th and 14th. Go to SariSwears.com/damages to enroll for that one or SariSwears.com/opening for opening or come to both. See you there.