In this encore episode, I’ll teach you how to piss the jury off. But not in the way you might expect. 😉
By the way, if your opening is over 30 minutes long, then you're abso-fucking-lutely pissing them off. In a really bad (and wrong) way.
That's not what I'm talking about here. I'm talking about pissing them off to a point where you motivate them to act.
ENCORE EPISODE TRANSCRIPTION
Hello Darlings. Sari De La Motte here with you, the Attorney Whisperer, for another episode of From Hostage to Hero.
I'm so glad to be with you today. We're going to start with the reader shout out. And this one is from Jim L, five star review at Trial Guides and he says, "Excellent information. It should be in your arsenal to assist you at trial if you truly want to improve as a trial lawyer." Well thank you Jim, I appreciate your review. And if you have not reviewed the book or the podcast yet, please do so.
You can go to trialguides.com to review the book there. Or wherever you listen to your podcast, just hit the star review. Of course, if you write a comment, I read every single one of those. And you may just get a shout-out here on the podcast.
We're so glad that you're with us, and I am so glad to be talking to you today. Particularly about how to piss off the jury. Let me say that again, how to piss off the jury in opening.
So, what we don't want to do is piss them off in a bad way. Meaning we're not going to do things that are going to get under their skin, let me name a few of those. Like an opening that is over 30 minutes long. Yes, you heard me correctly. Anything over 30 minutes long, you're getting close to pissing off the jury. In the bad way.
Gimmicky things, using language they don't understand. Giving them information, too much information too quickly, speaking too quickly, not taking enough ownership, all of the things. Right? Those are the bad ways to piss off the jury in opening. But what we're talking about today is how to get to your piss-off point.
We know that the number one way to win trial is to get jurors to act, right? That's why what you do is so difficult. Is because it's easiest to do nothing. Your job as a plaintiff trial attorney is to get the jurors to actually take action, and we need to motivate them to act.
Now, we do that primarily in the H2H method by getting them to care. Meaning getting them enrolled and invested, and we do that in the voir dire process. But it's even better if we can get them pissed off.
Now I'm not saying that we're trying to manipulate, that we're trying to use a gimmick here, that we're trying to do something to get their emotions involved in a way that is unethical. That is not what I'm saying. I hope you know by now that that is not the way that I do things, and the way that I teach you to do things.
But what we are talking about today is how to get them upset at something that is actually upsetting. And we're going to talk about how to do that in my most favorite part of the opening template, which I call the teaching section. Yes, in the book, I call it the Educate The Jury section. I don't know why I had to get all fancy in the book, you hear me talk about it all the time. It's just the plain old teaching section.
And for those of you who don't have the book, the template begins with a hook, where we hook the jury into wanting to listen to what's to come. Then we go into the teaching section, and then we tell the defendant's story, and then so on and so forth. So we're really going to be talking about those second and third pieces.
I'm not going to talk about the hook today, I'm talking about the teaching section and the defendant's story section. But primarily the teaching section. Because that is where, in conjunction with the defendant's story, that we're going to get jurors to that piss-off point.
I really believe that there are two things that you need to really lock it in for jurors and get your verdict. To get them to act.
The first piece, or the first part of that, is that you need to show that what happened could have been avoided.
That is a huge piece for the jurors. They want to know that this action that was taken by the defendant, that caused the harm, could have been avoided. Normally through a choice. The more things we can frame in terms of choices, the better we are.
Because what jurors don't like doing is rendering a verdict where it's a situation that couldn't have been helped. That could have happened to anyone. I.E., could have happened to the jurors themselves. They don't want to find themselves in the seat of the defendant. As Rick Friedman says, "We used to look at the plaintiff and say, there but by the grace of God go I." Right? That could have been me getting hurt.
But now we look at the defendant and say, "There but by the grace of God go I." Meaning, I don't want to be sued for something that was a quote-unquote "mistake," or an accident.
So if we can show the jury that what happened was avoidable, we are so ahead of the game.
And the second piece is if we can show the jury how money can help fix or make up for, to use David Ball's language, the harm that happened, now you've got it locked in.
Those two things, in my mind, are what really get us our verdicts. This could have been avoided, and here's how money can help.
Right? Because we all know that we've been in the situation where you've done a great job on showing how this could have been avoided. But because you didn't show how money could help, then you didn't do what you needed to do to get the verdict. And the jurors will come back and say, look, we are with you, we just didn't understand what money could do.
Or vice versa. They understand that money can help and it's how we hold people responsible. However, they didn't really understand how this could have been avoidable, and they've just viewed it as an accident. So those two things together are what are really going to bring everything together in your case.
Now, let's talk about how we do that in the opening process, particularly in these number two and number three out of my nine-part template, and how we can get to the piss-off point. Because when jurors get angry over the fact, which they will, that this was unavoidable and yet someone chose not to do it, we are even more likely to get our verdict.
Because if somebody caused someone else harm through a choice they made, that is anger-producing. So it's not, again, not like we're trying to force an emotion on the jurors. They will get angry if you do this right, because it's something to get angry about.
All right, so this is what I talk about in terms of front-loading the danger. If you're an H2H crew member, you know that I talk about this quite a lot. So let me talk a little bit about what a teaching section is.
So a teaching section is the part that comes before you tell the jury what happened to bring us here today. So what happened to bring us here today, that's the defendant's story. That's what the defendant chose to do, so that we are now all here in this courtroom today. But the piece that comes before that is the teaching section.
And the reason for that, and I want you to write this down, is that jurors cannot properly judge conduct, which is what their job is to do, without context.
They cannot properly judge conduct without context. And so the teaching section gives them context for the story that's about to come.
It says, here is what should have happened, and then I'm going to tell you what did happen. So that they can put two and two together and go, ah, I see now why we're here. They should have done this, but they didn't do that. Or they did something else.
Okay? That's the point of the teaching section.
So when you're putting together your teaching section, what I want you to ask yourself is, what should have happened here? Because that's where we start. What was the right thing to do? What was the thing they chose not to do? What was the thing they bypassed? That's the question that you need to ask yourself.
I want you to think about this in terms of show and tell. We're reversing it here. We're saying, tell them what should have happened. Show them what did happen. Now, when we do the teaching section, this is the tell them what should have happened part, we're going to front load the danger. Meaning we're going to start that section with what the danger is. In whatever your case is.
So for example, if you are talking about a birth injury case, you might front-load your teaching section with the danger of, most births go just fine. But some don't. And when they don't go fine, the baby can get stuck. And the longer the baby is stuck, and the more stress that is put on the baby through those contractions, that can cause all kinds of issues, including lack of oxygen, which leads to brain death.
So you're going to front-load your teaching section with what the danger is. If it is a semi-truck case, or 18-wheeler-cases, you say in many parts of the country, you might front load with, "18 wheelers can do a lot of damage. Why? They're this big? They weigh this much compared to a car."
So you front-load the danger. They haven't even done anything yet, but this is what they could do. This is the potential for danger here. A baby could get stuck, a truck could crash into a car, right? A product could harm someone if not properly tested. A slippery floor could cause someone to trip and fall, right? So you're front-loading the danger.
Now, once you front load that danger and you tell the jury, here's this potential danger, then the second piece, it's really two pieces. What's the danger? Second piece is, how do we mitigate that danger?
Because this is a potential, because 18-wheelers can cause catastrophic crashes, because births can go wrong, because slippery floors can cause people to slip and fall. Whatever your danger is, there are three ways that store owners, there are three ways that doctors, there are three ways that trucking companies, whatever it may be, are trained, or have protocol, or whatever your words may be to mitigate that harm. Or to reduce that harm. Or to make sure that doesn't happen. Let's just use juror-friendly language.
All right? So just to review, again, your teaching section is going to have these two main parts. You're going to front-load with the danger, here's the danger. And then you're going to say, "And here's how we make sure that doesn't happen."
Now, you heard me say three things. You may have more than three things, but I'm going to suggest that you try to get it into the rule of threes. The rule of threes saying that people remember three things better than even two things or four things or 17 things. Three seems to be, research shows us, the magic number.
So what are the three things? I've rarely had a case where we had to go outside of three. You can look at all the things that they should have done right, all the choices they should have made to make sure this didn't happen, and you can combine some of them under each umbrella.
So in a recent case, the three things where a doctor needs to be ready, willing, and able. So under ready, we had a couple things. Under willing, we had a couple things. Under able, we had a couple things. So that's how you can kind of shove in more things, should you need them. Again, we always want it to be more simple than complex here at H2H.
But the point is that in this teaching section part, you're going to have, here are the clear ways to avoid this particular danger. Now, once we've got that, we are going to then tell the story, or show. We just told them how to do it, now we're going to show them what did happen by telling the defendant's story.
So this is the story of how we got where we are. Now, you can go back and listen to other podcasts on storytelling. The basic gist is, we want to tell it from the defendant's point of view. We want to try to keep the plaintiff out of it as much as possible until they arrive on the scene. We really want to take the jurors through what the defense is thinking, and what choices they're making. And anything that you can frame in terms of a choice is going to help you here.
Use that language. They chose not to, whatever you just said in the teaching section. They chose not to whatever you just said in the teaching section, right? So as you go through your story, you are outlining for jurors all of these choices that the defendant made, that you just told the jurors that they should have made to mitigate this harm.
So by the time we get to the fourth part of the template, which is why we're here, the jurors can stand up and say, I know why we're here. Because you said they were supposed to do this, and they chose not to do it. And ding, ding, ding. Now we've got the piss-off point.
Because what you've said is here's the danger, here's how to avoid the danger, and they didn't even try. And that's what pisses jurors off. When you front-load that danger, and you put it front and center in your opening, after your hook, after your rule, go, "Here is the danger."
And then you say, "Here's how to deal with that danger." And then you showed that they didn't even try. Or if they made other inexplicable decisions, when this was such a clear path to avoiding this danger, that's when you get jurors pissed off. Why? Because they can see that it was avoidable.
Now, later in the opening statement, we're going to talk about how money can help, and that money can help.
And in some future podcasts, I'm going to be talking about the money question. In fact, I'm going to have a podcast coming up in the next one or two, I'm not sure what the order is here, on the three things you need to talk about in voir dire if you have no time to talk about anything else. Guess what? They all have to do with money.
But the point is that this is where we show the juror this was unavoidable. Or, I'm sorry, that this was avoidable. So I hope this helps. Take this now and go into your own cases and ask yourself, what should have happened here? First ask yourself, what's the danger we're trying to avoid? What should have happened? IE, how can we avoid that? See if you can put it into three easy steps. Practice teaching that to a jury, to people around you, and then tell the story that then shows that they did not do those things.
That, my friends, is how to piss the jury off in opening. All right, talk next week.
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