FHTH Encore - Are You Legitimizing Defense Arguments?

Are you unknowingly handing the defense the victory in court?

It's a common pitfall I've observed, but fear not—there's a way out! And you can thank me later. ????

Explore the strategies of the H2H method to shift the focus onto YOUR case, and encourage the jury to fight FOR you.

Ready to get your mind blown and redefine your approach? ????

Because my track record says I have a habit of doing that. #SariNotSorry

Xo, Sari

“You are unwittingly making the defense points important. How? You're focusing on them. Now, am I saying that we never focus on defense points? No, that's the point of my voir dire. My whole point is, as you go into voir dire, start with your fears list, start with the defense points. But reverse the shit out of that motherfucker and think to yourself, ‘Okay, if this is what the defense is going to say, what would my juror have to say or believe to rescue me? To fix this for me?’”
sari de la motte

ENCORE EPISODE TRANSCRIPTION

Hello, hello, hello. How are all of you on this very beautiful day? At least I hope it's beautiful where you are. Sari de la Motte here with you today. And we're going to start with a podcast shout out. This is from the Apple Podcasts, where I listen to my podcast and other podcasts. Yes, I do listen to my own podcast. In fact, I was sitting in the garage one day and I came in and Kevin said, "Why were you in the garage for so long?" I said, "I was listening to this amazing podcast episode," and he said, "Ooh, whose was it?" And I said, "Mine." I love myself. Do you love yourself? I sure hope so. I sure hope that's what I'm teaching you. I don't think that's arrogant to love yourself. Somewhere down the line, we bought into the bullshit that it's bad to think we're awesome. And we're not and I'm on a mission to show it to you.

All right. So, this says,

"Positive, practical, and personal. Five stars. I started listening to Sari before her book, From Hostage to Hero, was even available. I loved her practical advice and positive take on people, circumstances, and particularly her approach to juries and the practice of law. Of course, I love the book and continue to come back for the podcast for reminders and new perspective. However, I'd say now I probably stay engaged for the personal growth. I love Sari and her teaching is easy to follow, thought-provoking and can be absolutely-"

...and it cuts off. Man, I really wanted to know what it could be absolutely, but I'll take it. So, thank you so much for that review, PostCast Connoisseur is what it says, PostCast Connoisseur. All right. But we are so glad for that review. And if you haven't reviewed the podcast yet, please do so. We're still not at 100 there. We are at over 115 at Trial Guides for the book, but for the podcast, not at 100 yet. So I would like to change that, please, and thank you.

All right. So, today, ooh, I'm going to love this topic and you're going to love it, I guarantee you. Well, I don't guarantee you. I'm not going to give you money back. Because you know what? You haven't paid for the podcast. It's free. But are you unwittingly legitimizing defense arguments? There are three things that I'm seeing attorneys do that, unwittingly, I first wrote unwillingly, which I also think is true, but unwittingly means you don't know you're doing it, defense arguments. And so, I want to talk about those today, so that you can stop doing that and stop focusing the jury where they should not be focusing.

All right. So, that really brings us to the first thing. So, there's three things, there's probably more than three, but you know I love my rule of three. So, the first thing that I want to talk about in terms of how you're unwittingly doing this is in terms of your focus. So, you've been hearing me talk a lot about the funnel method.

So, the funnel method is where we decide in advance, go back to our last couple podcasts, like two podcasts ago, what our principles are that match our case, and then we go in with the intention of getting jurors to give that to us. Not because we're trying to convince or persuade them to believe these things, but because we already believe that they do believe these things and that if we ask the right questions that we can get that into the air, so to speak.

So, we do that by first, again, knowing what our principle is and then using a funnel to get down the principle. And the funnel tends to be three questions, it's not always. The reason we call it a funnel is because it's big at the top and narrow at the bottom and that's exactly how the questions should feel. They should feel very open-ended and broad to begin with, and then get more and more focused as you move down the funnel until you finally get to a question where the juror gives you the principle in your case, versus the other way around.

So, the three questions that we tend to use for the most part are, "What is your experience or who here has experience with?" That's your big open-ended question. Then, we start moving down the funnel to, "What are your expectations of said experience?" Down to, "What could happen if your expectations were not met?" But you could have different questions. Again, the point is to just get down the funnel. We also use three types of follow-up questions like, "What was that like?" Or, "Tell me more." Or, "What's important about that or how important is?", that being the same question, just worded differently. So, those are our three follow-up questions that you can pepper in as you go down the funnel and keep getting the jurors closer and closer to the principle until they finally give it to you.

So, here's what I want to say about focus being the one way that you are unwittingly legitimizing defense arguments is that now that you are all learning the funnel method for questions in voir dire what you will do is you will take a defense point and you will funnel it, you'll put it in a funnel. And so I want to be really careful that you understand that you never, ever, ever, ever put a defense point in a funnel, meaning something that you're trying to figure out whether the jury believes or not, that is defense focused.

Now a couple reasons for that. One is that what a funnel is formulated to do is have the jury give you the principle, the thing we want them to believe. So, what we don't want the jury to do is to give us something that the defense wants them to believe. Now, this thinking, and you putting it into a funnel, comes from your exclusionary voir dire training. You believe that you are there to ask questions, find your bad jurors, and get rid of them. That's what you believe, at least prior to H2H. What we're saying is, that that is not how we do things at H2H. At H2H we believe that the jury's there to help us, that you stand on the side of the right, that when you get clear on what the principles are in your case and you get the jurors talking about those principles, that if you can show them what they are and that what happened was avoidable and that money can help, that that's how you get to your verdict. That's pretty much what the last four or five podcast episodes have been on.

So therefore, we don't come in with that thought of, "How do I get rid of my bad jurors?", and "How do I find them?" But the minute you put a defense point in a funnel to try to see if a juror believes something defense oriented or defense focused, you're doing it wrong. We do not want to focus the jury on defense points. Here's the big thing that I want you to take from today's episode. If you get nothing else from today's episode, get this, which is defense points are always a side note. We're going to treat them like a side note, we're going to talk about them like a side note, through all the things that I'm going to show you today. We are not going to make them important. And that, by the way, is the way that you are unwittingly legitimizing defense arguments.

You are unwittingly making them important. Why? This is number one. You're focusing on them. Now, are you saying that we never focus on defense points? No, that's the point of my voir dire. My whole point of as you go into voir dire is start with your fears list, start with the defense points. But reverse the shit out of that motherfucker and think to yourself, "Okay, if this is what the defense is going to say, what would my juror have to say or believe to rescue me? To fix this for me?" By the way, we have a whole thing on the funnel method, brand new free course called Let The Jury Solve your Problems. Go to FromHostageHero.com/training, and you can get that free training.

All right, so when we focus a whole funnel, a whole line of questioning, on trying to figure out where our bad jurors are, we are now focusing our time and energy onto a defense point. No. We use the defense points to have us figure out what our principles are and then we focus our time there. Now, there is one thing that you can do in voir dire to deal with defense arguments. Once you get down the funnel and once you get the juror to give you your principle, and once the whole group is rallying around those principles in your case, then you can use what we call a devil's advocate question.

So, devil's advocate question is a defense point communicated in a very specific way. So, this brings us to the second thing is your tone of voice, but actually I'm going to pause here and talk about tone of voice in a minute, but let me just talk about the devil's advocate.

So, the devil's advocate question is, "Well, but shouldn't people do the thing the defense is going to say they should have done?" But you never use a devil's advocate question until and unless the jury has already given you the principle, and the majority of the people agree with the principle. You do not want to do it before that point. It's once everybody's rallying, then you throw out the devil's advocate question. I have a whole podcast on how to use the devil's advocate question. You can go back and look at it. But the point is that the devil's advocate question is the way to use or to deal with defense points, to see if there's any way to shake anybody out of their tree, if there's anybody hanging out in there that is not agreeing with the principle that you just had the jury give you.

So that's our first point is focus. We're focusing too much on defense points and whatever you focus on you create. You focus on defense shit, that's what you're going to focus the jury on. You talk about the defense, what they're going to say, and make your whole voir dire about that? You make this a defense case. We are going to make this a plaintiff case by talking about the principles, by talking about the side that is the right side, and we're going to, yes, use our devil's advocate question as needed, but we're going to focus the jury where they should be focused and that's not on the other person's case.

That brings us to the second thing, which is length. When we get to the opening statement and we get to our challenges section or David Ball calls it "the undermining" or Keith Minnick calls it the "putting it in context", whatever you want to call it, whenever you are in your opening statement and you are talking about what the defense is going to say when they get up, how long is that section? For most of you, that is the longest section in your opening statement. This is a mistake.

When you make talking about, this is very similar to the focusing in jury selection, when you make, in terms of length the longest part of your opening about their case, you've now made the case about their case. It's not about their case. That's the point you have to get here. When you focus on that, you make it about that. So, this part, what we call the challenges section in your opening where you talk about the defense points and you put them in context or you went and investigated or however you want to do that, that is going to be short and sweet. It's going to be a toss off. Because remember how we talked about this? It's a side note. "Oh, yeah. And the defense is going to say this bullshit thing." That's how we're dealing with it. We're not legitimizing it, because here's the third thing, which is what I wanted to say earlier, is tone of voice. This is probably the biggest way that you are unwittingly legitimizing defense arguments is that you are using the same tone of voice when you're talking about them when you talk about other things.

Now, I want you to know that human beings, maybe animals too, but I know for sure for humans, we are most in tune with the voice in terms of a non-verbal, meaning the sound of someone's voice. Not the words necessarily, the tone. What someone sounds like. So, when you are saying in let's say your challenges section, you say, "So one of the things we had to look at was did the doctor actually have to perform this maneuver?" Now, notice how I said it. I made it sound super legitimate. I made it sound like it's something that jurors should really consider. "Here's a point you really need to consider jury." That's what I just told them with my tone of voice.

Same thing, if I do the devil's advocate question in my voir dire, and I use that tone of voice and I say, "Well, let me ask you this. Shouldn't people look before they cross the street?" Or whatever devil's advocate question I'm going to use. That's not a great devil's advocate question because people should be looking before they cross the street. But I mean, "What if the person didn't mean to do it though? Doesn't intent matter?" Listen to my voice. I'm making it legitimate. I'm saying "Jury, this is something. Here's another question for you to consider." And you know what? When you do voir dire correctly and you're using the H2H method, because I've seen this happen all the time, the jury wants to help you. They want to get in there and be like, "Oh, okay, you want us to talk about that? Well, let's talk about that." And they'll start debating it. "Actually, that's a good point. Intent. Yeah, that does matter. Thank you attorney for bringing that up."

See your tone of voice communicated to them that this is a real thing that they need to consider. This is the biggest way you are unwittingly legitimizing defense arguments. Because what I'm going to suggest is when you use that devil's advocate question, you use a different tone of voice. One that communicates to the jury, "This isn't real. This isn't a real thing. But I got to talk about it anyway." So, you get them rallying around the principle, for example, that people need to be responsible when they harm someone. They need to take responsibility for that. And everyone's like, "Yes, that's for sure. I did that. My parents made sure of that. I made sure my kids take responsibility." Blah, blah, blah. They're all just totally with you.

Then you throw out the intent question, but you would do it like this. "Yeah, but, I mean, what if they didn't mean to do it? That lets them off the hook, right? I mean, if you didn't mean to do it, you shouldn't be held responsible." And you should see the jury. They get mad. Not at you. They know through your tone of voice that you're not for real. They know who to actually be mad at. And even if they are mad at you for a few minutes, let them be. They go, "No. Intent doesn't matter." And they'll start fighting for you. It's beautiful. It happens every single time we've used a devil's advocate question. Every time I've been in front of a jury with my client and they've used it the correct way, the jury comes back beautifully and starts fighting for us. But notice the tone of voice. If I just said, "Yeah, but how about intent? Does that matter?" They're going to be like, "Hmm, let me think about that." But if I go, "Yeah, but," and I use this kind of snarky, like "I mean, come on? Right?"

Now notice I'm going to take that same tone of voice and I'm going to use that also in the challenges section. So when I go to the challenges section, I say, "Now, one of the things you might be wondering or one of the things you're going to hear is, 'They didn't mean to. This wasn't something they did on purpose. Medicine is an art. It's not a science. I mean shit happens.' And here's what you're going to hear from our experts. They're going to tell you this totally could have been avoided." Notice the change in voice. Notice the change. So, you're going to use that same, I wouldn't go so far to say snarky, but you're going to use that same tone of voice when you are in opening when you're talking about defense points.

So here is how, a review, to stop legitimizing defense arguments. Take your focus off their case and put it on yours. Create your funnels that get the principles, and if you need to use those DVA questions, use them in voir dire, but they're a side note. Two, when you do your challenges/undermining section, make it short and sweet. Don't make it long because then that makes it important. Three, watch your tone of voice. Change it both when you're using the devil's advocate question and when you're talking about that same thing in opening, that makes a nice connection in jurors brains, by the way. They're like, "Ooh, we talked about that. We said that was pretty ridiculous. Cool. Here it is again." Use that tone of voice. Otherwise you legitimize their argument and you don't want to do that.

All right, well I hope that was helpful. Go check out the free course. Let me know what you think. Talk soon.

This is a great time to dig a little deeper and make sure my revolutionary H2H method before I come back in January with all new episodes. Join the thousands of others who are seeing transformation in how they practice law. Get started with my free training, 3 Powerful Strategies to Help You Read a Juror's Mind by going to sariswears.com/jury.

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