FHTH Encore - Four Questions For Juror-Guided Principles

Let's get one thing straight—jurors should be handing YOU the principles, not the other way around.

You've got to ask the right questions, though.

In this episode, I give you the 4 questions to ask jurors, and I'll show you how social science supports this new approach. Spoiler: it's not what you've been taught in law school.

I’m telling you, I know what I’m talking about.

It’s about knowing your principles and making jurors serve them to you on a silver fucking platter.

-Sari

“This is where most voir dires go absolutely fucking off the rails. It's not a juror's experience that we're after. Listen and listen good, it's what beliefs they formed due to their experience. That's the point.”
sari de la motte

ENCORE EPISODE TRANSCRIPTION

Well, hello my people. Sari de la Motte with you. Today, another episode of From Hostage to Hero coming your way. And I apologize in advance if you can hear the fucking leaf blower outside. We just moved to lake Oswego back in March. And as much as I love the city, it's a suburb outside of Portland, and it's awesome. And our house is nestled literally in the woods, we've got a creek running through our property. But as much as I love this city, and I love our new house, the leaf blowers never stop. They're constantly going. Do you feel me? Anybody out there feel me? So annoying.

Ah okay. So now that I've gotten that out of my system, apologies if you can hear that. If you can't, then I just ranted for no reason whatsoever. And today, we are talking about four questions to help jurors give you the principles in your case. And it's awesome and amazing, so stick with me.

But before we do that, we're going to… Or I'm going to, read you a review of the book by Marcus C. And he titles it A Practical Master Work. He says,

"From Hostage to Hero deserves to be in the cannon of great trial advocacy literature. It is evolutionary in building on the work of Ball, Friedman, and others. It is revolutionary in proposing an issue oriented inclusionary approach to voir dire, and articulating how non-verbal communication with the jury can speak louder than lawyer words. It compliments be Bettinger's Twelve Heroes, One Voice hero-centric model in a way that trial lawyers may find is more practical to implement. It takes the reader on a journey that begins with self-examination and a perspective on the bigger win that all plaintiff," I'm sorry, "That all plaintiff lawyers should pursue. It then ties voir dire and opening statement together, illustrating their complementary purposes. It culminates with an approach to closing argument that brings all the theory full circle. I highly recommend this important book."

Well Marcus, thank you so much for that. I appreciate your review. And I hope that if you haven't purchased the book yet that you do so by going to trialguides.com. Or if you want to wait, I don't know why you would, but if you do we give you a free copy when you join the H2H crew and will be reopening in January 2022. Go to fromhostagetohero.com to get on the wait list.

All right so, I've been so excited to talk to you about this little gem that I kind of fell on. I've been talking about this, and pieces of it. And it finally kind of all came together when I was working with a couple of my private clients the last month. And so, I wanted to share this with you. And not only share it with you, but also give you some things to work with. So, if you head over to fromhostagetohero.com/4questions, four is not spelled out just use the number 4 questions. You will find a handy dandy cheat sheet to follow along, and use in your own courses… I'm sorry, in your own courses, in your own trials.

So, you might want to, if you are somewhere and you're not driving, pause the podcast now, head over to fromhostagehero.com/4questions download that so that you can follow along. I will do my best for those of you who are driving, or listening to this somewhere where you cannot take notes to describe what you will be seeing when you are looking at this as you go through it on your own for your particular cases. It's really, really awesome. Have I said how awesome it is? It's super awesome.

And so, let's get going on what the hell I am talking about.

As you know, I'm huge on the concept of having the jurors give you what you need versus doing it the other way around.

Meaning, we source from jurors in voir dire, for example, what we're gonna say in opening. Meaning, if we're going to say an opening, bars can prevent drunk driving, then we're gonna ask jurors in voir dire, can bars prevent drunk driving? So, that jurors say it first, before we get up and say it because social science shows us that people are more convinced by themselves than any other person, especially you, a plaintiff attorney.

So, if we can get the jurors to give us the information first, then we can give it back to them that's what we're attempting to do. And that's what the trial dialogue is all about. And I'll be developing a course here very shortly on the trial dialogue that you'll be able to access for free as a H2H member, or pay for it if you're not an H2H member. So why wouldn't you become an H2H member? I mean, come on.

Anyway, we've talked about that in depth when it comes to the relationship between voir dire, and opening. What we haven't talked so much about, and we have but not a lot, not in the detail I'm going to share with you today is how do you get jurors to give you the principles in your case, in voir dire? How do you do that in the voir dire process?

So, if you think about this, in this way, the first thing that we want to get at in our cases are the principles. Now, what is a principle? A principle is a fundamental truth.

This is why your job is so much easier than defense because y'all stand on the side of the right. So most, if not all of plaintiff cases are based in principles. Principles that everyone believes in. So, Stephen Covey in his book, 7 Habits for what? Oh my gosh, I'm forgetting. The 7 Habits for something. The 7 Habits I can still clean chemo brain, can't I? Anyways, he talks about how you can try to break a principle, but really you're only breaking yourself against a principal because they stand no matter what.

So, we're looking for principles in our cases. And so, for example, a principal could be people can get hurt if a store doesn't remove a tripping hazard. That's a principle. Or if hospitals don't carefully monitor patients, they could die. Now, principles are different than rules. For example, a rule prescribes action, and Rick Friedman goes into this in depth, in his Rules of the Road book. But he talks about how you had to prescribe action for it to be a rule. So, if we took those two principles and turned them into rules, they would sound like this, stores must remove tripping hazards so customers don't get hurt. Or hospitals must monitor patients carefully to keep patients safe. So, notice the difference.

Now, what I want you to understand is that you, for this exercise, can use either principles or rules. But if you're doing an opening statement, you definitely want to stick with rules. That's why Rick Friedman is so clear about that in the book; you want a rule, you want something that prescribes action. Here, it doesn't matter so much. Normally, we start with principles and then we turn them into rules. But the whole point is to at least get to a fundamental truth, that's the point that I want to make here.

Now, once you have those principles in your case, then what you want to do is ask yourself, how can I get the jury to give me these principles instead of me giving it to the jury? Because this is what I see so often in voir dire is that y'all are trying to tell jurors things, and then ask if they agree with you. This is ass backwards. That's not how you want to do this. You want to ask questions so that jurors give you the information.

And then, you can go ahead and confirm their sanity, yes. But what you want to do is get them to give it to you instead of the other way around. So, for example, many of you would be like, "Stores should do this, right?" That's not a great voir dire question. That's making a statement, and then asking if jurors agree with you.

So, let me kind of run you through how to do this. And, again, if you want to go and download this, and do it even after you've listened to the podcast, you can do so fromhostagetohero.com/4questions, 4 as in the number 4, 4 questions. And you don't have to type out the word four.

All right so, question number one. So, here's what's so great about this, is there four questions that you can use regardless of the case. Now, remember I'm not about formulas, so this may not work in every single case. And, in fact, in today's example that I'm gonna run you through, I'll show you the places where I had to kind of massage it to make it work. But, in general, here are the four questions.

One, "Who here has experience with…?"

Whatever it is your case is about.

Two, "What are, or what were your expectations of…?"

The thing you just asked them about.

Three, "What can happen if…?"

Again, with the thing you just asked.

And four, "What's important about that/how important is…?"

Question three and four can often be reversed it just depends on your line of questioning, which one works best. So, let me walk you through these now in detail. But those are the four questions that will get jurors to give you the principle in your case instead of the other way around.

So, question number one, who here has experience with…? Okay, so this is called the experiential question. And we always use them to get a line of questioning started. It's easy for jurors to answer experiential questions because it's about their experience. So, you might start by asking who here has ever been treated at a hospital, or knows someone who has? So, that's just a very easy question. I'm not asking about why they were there, or what was happening. Just have you ever been treated? Very easy question to answer. Now, two caveats I want to give you when you're using an experiential question. First, make sure you ask an experiential question that everyone, or nearly everyone can answer. For example, asking who here is a parent leaves all the non-parents out of the question. And those jurors just end up zoning out and thinking, "Well, this case has nothing to do with me, so I don't need to listen." So instead, if your question is around parenting, or something about parenting, you might ask who here is a parent, or has ever had parents?

Now, you might get a laugh. That's not necessarily a bad thing. Sometimes it's a good thing. But, more importantly, you'll have included everyone. So, be really careful with your experiential question that it really applies across the board. Now, for example, in the hospital question, maybe not everyone has been in the hospital, or known someone who has, but nearly everyone will probably be able to say they know someone who's been in the hospital, and can speak intelligently on that, what their expectations would be.

The second caveat for this question is don't swirl up in the experiential question. This is where most voir dires go absolutely fucking off the rails. It's not a juror's experience that we're after. Listen and listen good, it's what beliefs they formed due to their experience. That's the point. So many of you continually ask what was your experience, and who here has experience with this, and what date was that, and when did that happen? And then, what did you do? And then, what happened? I mean, that just doesn't give us any useful information.

That's why if you go and you download the cheat sheet, you'll see that we use a funnel. And the reason that we use a funnel is because we want you thinking about getting down to the principle based questions. So, it's starting with experiential, but then your goal is to funnel down to the questions we really want to get to. So, once you use this experiential question, you are done. It's a jump off point, nothing more. Move on to question number two.

All right question number two, what are, or what were your expectations of said thing that we just asked about? So, if you asked about a patient, or a person's experience, meaning who here's ever been treated at a hospital, or knows someone who's been treated at a hospital, you might ask them a question about those experiences. So you might ask, well, what were your expectations about the care you, or your loved one received? All right so, the first one is, what's your experience with…? The second question is what's your expectations of? All right so, you would hopefully get answers like, well that my safety was number one, or that the doctors were being careful, or that the nurses were monitoring, or whatever else it may be. But you want to hear what they would expect from said experience.

And here's a great reminder for those of you who read the book, or listened to it at a previous podcast on this. You never want to ask questions that start, or have the word should in them. What should doctors do? What should companies do? Because now, you're asking jurors to speak to the standard of care, or to the rules that they don't know about. It's not a juror's job to come up with rules. It's a juror's job to enforce the rules. It's not a juror's job to decide what the standard of care is, but to make sure that standard was met. And if not, what the punishment should be, or what the award should be, or the amount of money should be. So we're not asking jurors, what should a hospital do when you're there? But what are your expectations of the care that you receive when you're in a hospital? So, a caveat there as well.

All right so once you get them talking about that, they've had the experience and here's their expectation of the experience. You want to go to the third question, which is what can happen if…? So, for example, you want them thinking about what could happen if their expectations were not met. So, for example, if it's a monitoring case where the nurse wasn't monitoring what she, or he should have been monitoring, and one of your jurors said, "I would hope that they were monitoring me." You might say, "Well, what could happen if they don't monitor you?" So, you want to get jurors thinking about what could happen in those situations? What could happen if a driver isn't paying attention? What could happen if a company doesn't warn customers? What could happen if a store doesn't dry their floors after mopping or whatever it may be? So you want to get them thinking about the consequences of the action. So, again, to recap up to this point, we've said we wanted to know what their experience is with something. I want to know what their expectations are of that thing. And what could happen if…?

So, experience, expectation, what could happen if…? Question number four is what's important about that, or how important is…? So once they tell you, well, people could get hurt, or people could die, or whatever else they're telling you, this is where we start to get to the principle. So, if a juror says that a nurse not monitoring could lead to a patient being harmed, you want to know why that's important to that particular juror. Just be careful never to use the question, why? Stick with how or what? And again, at this point, it may be obvious as to why it's important, but I want you to ask anyway. Just ask. It further drives home the principle in your case. So, you're gonna say once they say, "Okay well, people can get hurt." You can go, "What's important about that?" Or, "How important is that?" "Oh, very important." "Tell me more." Get them to give you more. Do you see how we're getting them to give us the principle?

Now at this point, you should firmly have the principle within your grasp. So, the principle question, two things can happen here in terms of this question, I know this is question number five, but the reason I didn't include it in the four questions is because you're pretty much at the principle at this point. So, this is where you wrap it up, which is where you take back what they gave you, and give it back. So, there's a couple ways you can do this. One, you can ask a what I call a principle question by taking your principle and turning it into a question. So, for example, if your… Or your principle was, people can get hurt if a store doesn't remove a tripping hazard, you might ask at this point in your voir dire, "So let me ask, can people get hurt if a store doesn't remove a tripping hazard?"

Now the problem is, is that in some cases, and in most cases, it would simply be redundant to ask the jurors this question when they've already pretty much told you that. So, you might add the word responsibility. So, you might say what responsibility, or who is responsible when a customer trips and hurts themselves in a store? So, that gets you a little bit closer. Or if you're really sure that the jury's got it at this point, you can say… You can give them, I should say the principle back and then ask if they agree. So you can say something like this, it sounds like this group believes that tripping hazards are dangerous. And that it's a store's responsibility to remove those hazards. Does everyone here agree with that? Is there anyone that doesn't agree with that? It's just a great way to get them to really solidify it for you. And voila, we have gotten to the principle. And we have never said it unless it's at the very end, the jurors have said it and given it to us.

So, let me walk you through an example. This is an example taken from Hostage to Hero, a real case that I worked up that is a case about a doctor, an anesthesiologist who molested patients while they were under anesthesia, super gross. And yet, we won the highest recorded verdict ever in that county for this particular case. So the principles, I'm just taking a few, you may have many principles, and these are a little different than in the books. Since I wrote that almost four years… Or no two, almost three years ago. So here's the first principle that I'm going to share with you today as I look back on this case. Is a hospital's number one job is to keep patients safe, right? So, that's what I want jurors to give me, that's my goal.

So, my experiential question is going to be who here has ever received care at a hospital? So, we've talked about this already. Then I might say again, as you might already know, what were your expectations of that care? As they talk about that, then I'll say what can happen if, whatever they said, aren't met, those expectations aren't met? So what can happen if a nurse doesn't monitor? What can happen if doctors aren't watched carefully? What can happen? Whatever it may be, I'm going to ask them what could happen if whatever they told me doesn't happen. What's important about that? So, it digs a little deeper.

Then, my principal question would be what, in your opinion is a hospital's number one job? So, that would be an example of taking my principal and turning it into a question. It works there because we have gotten around it, maybe nobody had actually used that verbiage. Again, this is very fluid. I'd have to work with it in the moment to see what jurors were giving me.

Principle number two, patients are particularly vulnerable under anesthesia, a hospital must protect them. So, that's what I hope jurors will give me. So, in that case, my experiential question, or in that principle I should say was, or will be who here has ever received anesthesia, or knows anyone who has? Then I might ask, what were your expectations around how you would be cared for while under anesthesia? Because what I really want to start poking a hornet's nest, is this helplessness that people feel when they're under anesthesia. What can happen if that doesn't happen? Meaning if they said, well, I would hope that people would be monitoring me. I would hope that I would be kept safe. I would hope that my dignity would be kept intact. And that my body parts would be covered, or whatever they might say. And I'd say, "Well, what's important about that? Or what can happen if that doesn't happen?" And then, I can go to my what's important again. There's a great point is where those two things can be switched, those two questions, number three and four can be switched depending.

Then, my principle question, here's the responsibility example, what responsibility does a hospital have to protect patients while under anesthesia? Great question. And so, they're gonna say, well, they have full responsibility. And you can even can go into your yeah, why? What's important about that?

Okay, principle number three for this case, the damage from sexual abuse is real. Now, are we going to say who here has experience with sexual abuse? No, no we are not. So, this is a great example of not using this as a formula, and just as a pointer to what you might want to try. So here, instead of asking about their experiences, I might say something like this, instead of asking about your experience with sexual abuse, because that is private, I'd like to ask your thoughts about the impact of sexual abuse. So not quite a question, but a way to get into this line of questioning without going into their experiences.

So, then you might say, what impact does sexual abuse have on someone? So, that's different than the expectations. And that's, again, why I don't want you to use this as a template. I'm thinking, how would I get down the funnel? So, that's one way I could get down the funnel. And then, I might say, well, what can happen if a hospital doesn't protect patients against sexual abuse? Hmm. What's important about that, whatever they tell me. And then, my principle question is that third example I gave you, which is where I just tell the jury what I think I'm hearing and ask if they agree. It sounds like this group believes the damage from sexual abuse is real. Who here, disagrees with that?

Those are the four questions to help the jury give you the principles in your case. Do you need to know the principles first? Hells yeah, so you got to do your work first. Before you try this. Don't go in blind and going, "I hope they give me some principles." No, no, no, no, no. That's not how it works. You've got to know your principles, then design your questions to help the jurors give them back to you.

All right, talk next week.

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.

Let's work together to get you on a path toward mastery.