Sari Swears Podcast: The Top Topics You Should Avoid in Voir Dire

You’re spending your voir dire on the wrong thing, Friend.

And it’s not subtle.

You're trying to get ahead of the defense's argument—funneling defense points, repeating their story, mapping out everything wrong with what they might bring up.

Meanwhile, your jury is soaking up defense point after defense point.

That’s the problem.

Because what you give airtime to, they give weight to.

In this week’s podcast, I break down the 4 topics you should avoid in voir dire, because they quietly hand power to the other side (even when you think you’re doing it right).

Love,
Sari

P.S. If you want to go deeper on this, join me LIVE on May 28th for my Beyond the Book Webinar. I’ll walk you through the H2H Method™ and how it actually works in real cases and you can even bring your own case for live feedback.
Register NOW → sariswears.com/webinar

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“You are giving so much airtime to a defense case point that I’m like — how do you ever get out from underneath that? You have basically just said, ‘This is so important, I’m going to spend all this time talking about their case… not my case.’”
sari de la motte

Transcription

Sari de la Motte:

You are giving so much airtime to a defense case point that I'm like, holy shit, how do you ever get out from underneath that? You have basically just said, this is so important. I'm going to spend all this time that I have with you talking about their case, not my case, their case. I just think that's crazy. You're listening to Sari Swears on the Sari Squares podcast. Well, welcome everyone to another episode of Sari Swears. I'm so glad to be with you today. I'm wearing this kind of unique piece of jewelry for those of you who've never popped over to YouTube and I'm going to give you a reason to come to check it out. But this is called Kalavala, Kalavala Kuru. And this is actually my aunt's. And the Kalavala is like the epic poem of Finland. And if you're new to us, I'm 100% Finish.

And so this jewelry has all these cool old designs that they're using kind of in the fashion of the epic poem of Finland. So I'm wearing that today. You want to come over and take a look. Welcome, welcome, welcome. Today we are talking about the four topics you should avoid in voir dire. Now I probably should have said, probably should avoid because you know me. I don't like to say always or never. You are always the expert in your case. However, I'm finding that anytime I've seen people try to do this, it doesn't work. And so I wanted to talk to you about these today. Now, if you are new to us, you may or may not know that I am known as the voir dire queen. I love that title. Whoever gave it to me, thank you. I love talking about voir dire. And I came up upon this, honestly, because I didn't set out to be the voice of voir dire out in the legal field.

But when I first kind of got thrown into this field, somebody... You may have heard the story, but somebody called me because they did an article on me in the Oregonian here in Portland and it was an attorney and he said, "Can you come help me pick a jury Monday morning?" And I'd never even stepped foot into a courtroom. And I was like, and he goes, "I'll pay you $3,000." And I was like, "I'll be there and I'll figure it out." And so I was kind of pulled into this kind of against my will. I wouldn't say against my will because once I did step in, I was like, "Okay, what is this? I love this." So then of course I went and I dived in and I was reading everything I could get my hands on. Rick Friedman was one of my first mentors.

He sent me all the things that I should be reading. I would email him and ask him questions and he would mentor me, right? Totally blessed that he was one of my first mentors. And what I recognized as I was going through all of the literature that was out there and watching the DVDs and Reptile was really big when I first started, I realized that no one was really talking about voir dire. It was kind of an afterthought like, "Oh yeah." And then ask these few questions. And not only were they not talking about it, everything that did talk about it was how to maximize your cause challenges. That was the big thing, right? You only get a certain number of peremptories. So here's how you maximize your cause challenges. And it was just all about exclusionary voir dire. So I kind of get it.

There's not a lot to talk about when you are only doing exclusionary voir dire. Throw out some bad facts, see what they think, kick off the people who are bad for you. The end. So I wasn't surprised as I started to learn more about why there wasn't more out there because there's not a lot to talk about if that's all you're doing in voir dire. But immediately I saw that there was a problem. And the problem I saw was this was the one time that you got to choose your team. And I know it's a deselection process, but not only choose your team, but shape your team and really get things out in the air that are going to affect everything after it. We know a few things. We know that if people say something out loud, this is Seal Vani, they're committed to it because it now becomes a cognitive dissonance in that I said this thing, but then later I go back on it, that shows that I'm not very credible or I don't have integrity.

So we want jurors to be saying things out loud in jury selection so that they're more likely to hold to that when they're back in the verdict room. We know that primacy and recency, that whatever we talk about in voir dire at the beginning, that's going to shape their entire experience from their forward. I have so many of my masterminds who come through the program and we always go through voir dire in the first three months and they're in front of the mock jury and they're like, "What I am learning is that sequencing is everything." They keep saying that sequencing is everything. Yeah. Because once you say one thing, you've now colored the juror's perception moving forward. And it's very hard to undo that. So you want to be really careful about that. So all of that said is that voir dire I was seeing was this wasted opportunity. Now people have bought into this, right? I went and I started working with clients. I started experimenting with my ideas. I started gathering the following.

I wrote the book from Hostage Hero and people have bought in. They're loving it. They're like, "Oh my gosh, I never realized that there was so much that I could do with voir dire and how powerful that was." And they're getting great results. We've gotten tons and tons of eight figure and even nine figure verdicts. And even in cases where either smaller cases or we get a defense verdict, what I'm hearing is that the experience itself was so much more enjoyable. So I love that. I love you. I love that it's working, but that's why we're doing today's episode. But y'all are trying to take this method and use it to work in places it was never designed to work or that it doesn't work. And so today I'm talking about the top four places or topics that it's not going to work. The H2H method is not going to work.

Now, if you have the book and you're not in the crew, and maybe you're new to the podcast, then you may not realize that the voir dire method that I designed has come way farther than where we were in the book. So we now have what we call the funnel method, which is where we have a principle that we... And again, principles are something that 99% of people believe. This is why I always say you stand on the side of the right because all of your cases are based on principles. It's just up to you to find which principles. And we design a funnel. And the reason I use a funnel is because pointing down. The number one thing that I have found from watching hundreds now, if not thousands of actual mock voir dires, is that y'all will swirl and not go anywhere.

You'll ask questions just to ask questions and it's not getting us any real information. So the funnel is hopefully an easy way for you to remember that we're always driving somewhere. So in the H2H voir dire, we're always driving toward a principle. And not only are we driving there, we want the jury to give it to us. And so we have these questions that are designed as we drive to this principle that eventually the jurors will say to us some version of that. And why do we want the jurors to say it to us versus us saying it to them and asking if they agree? It's because it's much stronger if it actually comes from the jury. We already know that they agree. Why? Because it's a principle. 99% of people believe in these truths. So we already know they agree. We just want them to say it out loud.

So no gimmicks here. So that's how the funnel method or the new H2H voir dire method, it's not that new anymore, but new since the book is designed to work. So what I have found, and again, the reason why I'm doing today's episode is that you love it so much, and I'm so glad, but you're trying to use it in places where it doesn't work. So the first place that you are trying to use it, and it's not working, and so I want to caution you to stop using it in this way, is you're trying to funnel a defense point. Now, oftentimes there's two reasons for that. One is that you're not familiar enough with the method, you're not in the crew, which is where they're getting all my up-to-date information. And so you are just like, "This is great." And instead of funneling to a principle, you're funneling to something that the defense says, but then you're like making it a negative.

Don't you agree that people shouldn't do this thing or whatever it may be? The second reason why you're doing it is because you don't realize that you're doing it. So we never want to funnel a defense point, meaning we always want the jurors to give us something plaintiff friendly. Now, I know that's so backwards to those of you who are trained in exclusionary voir dire, but the reason for this is because it aligns the jurors with principles and makes it, again, the duh factor, if you listen to last week's podcast, it makes it so reasonable what you are asking them to do. Of course, that's the right thing to do. Of course. So we want these principles up and in the air and we want the jurors to be the ones that are giving it to us, but you are so focused. This is why you do it.

This is the third reason. You are so focused on the defense's argument that you put it everywhere. And again, this is why exclusionary voir dire, the other reason why I don't like it. First, it's a terrible way to choose a team. You don't choose a team that way. You just kick everybody off, that's not good for you. And then you're like, "Well, I guess the rest of you, here we go. Play ball." But the main reason I would say... I say the main? I don't know. The main reason, I'm going to go with it, that I'd say I hate exclusionary voir dire, is that it makes everything about the defense's case. Remember, what you focus on, you make important. So even if you go into your voir dire and you're bringing up all these defense points and you're kicking off these people, or even if you're trying to say, "Isn't that a stupid thing to think?"

Although most of you are not doing that, exclusionary voir dire, you're putting it out there to see who believes it and then kicking them off. You are giving so much airtime to a defense case point that I'm like, "Holy shit, how do you ever get out from underneath that?" You have basically just said, "This is so important. I'm going to spend all this time that I have with you talking about their case, not my case, their case." I just think that's crazy. So let me just say that you can't try to do it here either. You don't get to say, "But I'm using your funnel method, sorry." No, no, no, no. We never, ever, ever funnel a defense point, ever. Now I'll talk about where we do that, but we don't funnel them. We're making the defense important, and we don't want to do that.

In fact, let me talk about where we put it now. We have a whole thing called the devil's advocate question, which is once we get the principle from the jury, then we can say, "Yeah, but..." and then enter a defense point there. We have to use the crazy voice because we don't want to make it sound reasonable, but yeah, but when you go under surgery, it's a common thing that you get a brain injury afterwards, right? I mean, that's a known thing. That's possible, right? And people are like, "What? No, no. I mean, that's crazy." So whatever it is that the defense is saying, we try to put... It sounds ridiculous to the devil's advocate. So it's not like we never talk about defense points in voir dire, but whenever we do talk about them, they sound stupid because they are stupid and we don't highlight them as the main thing we're talking about.

I'm getting my principal then devil's advocate. I'm getting my principle of the devil's advocate. Remember that trial is all about the best story wins. And I don't mean just story and storytelling, but when you come out and the first thing out of your mouth is all about defense point this and defense point that, you're saying there is a better story. It's the more interesting story. So I'm going to talk about their stuff versus here's what this case is really about, things that you and I view as important. All right.

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Sari de la Motte:

Now, seats are limited. These are small group, high impact courtroom sessions, not an auditorium full of board attorneys and dull lectures. If you want to change the way you go to trial and turn your practice into progress, visit sariswears.com/masterclass to register for a 2026 class today. That's sariswears.com/masterclass. Number two, this one might be very, very... Not if you're in my crew, but if you are not, this one might be surprising. The second thing, second topic that I suggest you don't voir dire on is preponderance. Why? Because y'all just don't do it well, one, but even if you... It's not even about how you do it. The fact is that this is something jurors do not understand, and it is also something... So it takes a long time for you to explain it, which we don't want to be explaining in voir dire.

And two, it's something that they're not going to follow anyway. I'm just going to say it. Listen, jurors, people want to be sure. We all want to be sure. They are wanting to be beyond a reasonable doubt. Now, where I would use preponderance is in a cost challenge later in your voir dire. So use it as a way that you are going to get someone off. It's so funny. I had an assistant that always laughed when we said that, get someone off for cause, later. So let's say that they expressed an iffy viewpoint as you were getting your principles and you said, "I want to come back to you." You do your little cause challenge there. Now in this case, this civil case, we have a standard that's more likely than not. I'm getting the sense that you're going to want to be beyond a reasonable doubt sure.

Use it there. It's a tool, but to voir dire on it, what do you think about that? Would you be able to follow that standard? Most jurors are going to be like, "No, that's not fair." Even though it's the law and you can tell them it's the law and all of the things, whenever you try to voir dire on it, it sounds like you're trying to get away with something. And I don't want you to give that first impression that you're trying to get away from something. Now, if you are absolutely convinced that you need to talk about preponderance, at least do it as a gift to jurors. Instead of saying, "We only have to prove," which sounds like you're trying to get away with something, say, "You only have to decide." You'll only have to decide what's more likely than not. You won't have to be 100% sure or even 90% sure. It's just out of these two sides, which one's more likely true than not true?

I tend to want to save it. Well, use it to cause challenges, but I tend to want to save it for closing and there I will say, "Here's the good news." I'm arming them, I'm empowering them to do their job and I'm saying, "And look, even the standard of proof is working in your favor, meaning it makes your job easier. You don't have to be beyond a reasonable doubt for sure." I give it to them later as a gift. Okay? Number three, third thing, and this is a big one, is the concept of agency, right? So what do I mean by that? So when you have a case, which seems like a lot of the cases are now, where it's like this person was acting as an agent of this company and therefore the company is responsible and you are worried that the jury won't be able to find that because it doesn't make sense to them and it doesn't make sense to them.

And so you worry about this a lot, I'll say that. And so you want to voir dire on it. You always come in and go, "How do I voir dire on this?" And what we have found is that there is no good way to voir dire on this because it is just too complicated. And what we've also come to discover is that it is also a defense point. Every time we try to funnel this and we struggle, and by the way, you know that if you're struggling putting together a funnel, you're probably trying to funnel a defense point and you don't even know it. Because normally funnels, if you go back and listen to the duh factor last week, they should be fairly easy to put together because it's like, duh, this is duh. Of course we do that. So here with agency, it doesn't make sense to jurors.

And again, like preponderance, it feels unfair. Wait a minute, why would the company be responsible for this stupid ass driver who was high on meth and killed somebody when they didn't tell them to go smoke meth? It doesn't work that way. They don't get it, right? And nearly all jurors, I mean, all human beings on earth want to be beyond a reasonable doubt sure. They believe in the concept of fairness. And for better or for worse, this doesn't feel fair.

So if you're like, "Well, what do I do instead?" Well, one is I want you to find the link, right? How are they responsible? We will lose these cases that involve agency if we cannot prove that they have had some sort of control. So find it. You may not have to voir dire on it, but you're going to show... You've probably heard me say, "I believe most cases are systemic failure cases." There's your control. Somewhere down the line, they put things in motion so that this would eventually happen. And if you cannot show that, if it's just the law, listen, you don't have to prove that they had control.

It's just the law in your state that if somebody was an employee of somebody else when they committed this act and they're liable, then don't voir dire on it. Teach it. It's a law. It's a fact. Again, you could also use that if you need to in cause challenges, but again, because it feels unfair, anytime you voir dire on something that feels like it's unfair to jurors, preponderance, agency, and you voir dire on it, again feels like you're trying to get away with something. Is everybody okay with that? Is everybody okay following that rule? I hate that question, by the way. It's a terrible voir dire question. Is everybody okay with that? So what we've done is we just haven't voir dire on it. And in nearly all of the cases that have gone to trial, we prevailed. We didn't have to. We did not have to prevail.

I'm sorry. We did not have to voir dire on the agency issue. Okay. Fourth one that I want you to avoid, the fourth topic is facts. Now you're like, "Wait a minute, Sari. We can't talk about facts anyway. Why are you telling me to avoid facts?" You can't, but you do sometimes, even if it's not case specific facts. So what you want to avoid, and I see this happen enough times in the H2H method because we teach you how to have really great conversations. If anything, when somebody comes out of training with an H2H, they know how to have a great group conversation. And so the jurors are having this great group conversation, but then they start debating a fact and that can take you off your game. The example I always use is when you had someone out here in a bicycle case, and within the jury, they started debating about whether or not bicyclists could be on the road or if they had to be on the sidewalk.

It had nothing to do with the case, but they were debating it, right? And so what you want to make sure that you're not doing is setting up your jurors to debate facts by not giving them facts in the first place. When we keep things principle based, right? If a doctor doesn't monitor someone while they're under anesthesia, a patient could get hurt, right?

It focuses the conversation on the principle versus the little nitty-gritty pieces. And if you hear them start going into the nitty-gritty, even if you haven't brought in the facts, you're going to want to stop it, which is what he didn't do. And what I said later when I coached him, I said, "You need to stop them because once they get down that road and later they find out, wait, this has nothing to do with that, they're going to be mad at you that you let them talk about this for so long." So you say, "I'm going to stop you right there. This case has nothing to do about where they were. They were exactly where they needed to be. No one's going to dispute that, not even the defense and you just need to shut it down." But what I want you to be thinking about, and you may not even have an example ready right now, you're like, "I don't know where I would do this."

But if you see it happen in either a mock jury, which I hope you're doing, you need to be practicing, and you're like, "Whoa, it's probably because the question that you asked had too many facts, too many... You're asking them a question that kind of invites debate about it, and you want to make sure that you stay away from that, if at all possible." Here's the big gist from today's episode, is that you want to avoid funneling defense points. You want to avoid voir firing on preponderance and agency, and you want to stop with any kind of fact finding questions where they're debating those kinds of things, because that will always lead you down a wrong road. The funnel method works beautifully, so beautifully that these are the top four places that I have found. Those of you who are so die hard adherence to it are sometimes getting in trouble.

And I just want to stop you and stop your misery and say the reason why it's not working is because of the things we talked about today. It's not because you're a bad lawyer using it wrong. It's not designed to be used in these four areas. All right. I hope that's helpful. Subscribe to the podcast and I'll talk to you next week.

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