You’re scared of biased jurors, I get it.
But would you be as scared if jurors are biased FOR you?
Guess what. They are. They just don’t know it yet.
We can’t change juror’s minds, but we can change the conversation. And that, my friend, changes everything.
Give this podcast a listen to learn more.
EPISODE 152 TRANSCRIPTION
Sari de la Motte:
Well, hello, my people. Welcome to another episode of From Hostage To Hero. Sari de la Motte with you, The Attorney Whisperer. And today we are talking about how bias affects voir dire. But before that, we're going to do a reader shout-out. This is from Trial Guide's website and it is written by Thomas R. five star review. He titles it, "Life Changing Content." He says, "This book will help you win at trial because it changes the way attorneys view their purpose in life. Underlying this book is the premise that plaintiff attorneys need to be genuine in all parts of their life and career. We cannot just walk into a courtroom and fake our way through it or mimic some other trial method. I read this book when it first came out and it has made me a better person, son, dad, husband, friend, and attorney. It will change how you view everyday interactions and will encourage you to have the same identity inside and outside of the courtroom. I give this book a resounding five stars and encourage any plaintiff attorney looking to be their best self in life, not just their career."
Well, Thomas, thank you for that very glowing review. I so appreciate it. And I'm so glad that the book spoke to you. And if you haven't already either purchased the book, you can go to trialguides.com, or reviewed it, please do so. We are still the highest rated book ever in Trial Guide's history and we want to continue that trend. And please review the podcast wherever you listen to the podcast.
Well, Minnesota Association of Justice, or State Association of Justice or whatever they call themselves. I love my Minnesotans. Is that how you say it? Minnesotans? I think so. They asked me to come back and speak for them, virtually of course, in this crazy pandemic world that we live in. And I did so last month and they particularly asked me to speak on how bias affects voir dire.
And so I had to laugh because I knew that what they were looking for was not what they were going to get. But I do believe it was a success. And I thought this was so important that I am going to podcast on it today. And I most likely will even do a mini course on this for y'all, but here's the deal. When I ask who here, whether that's you here in the podcast audience or in my audience when I'm speaking, wants a fair and impartial jury, nearly every hand goes up. Because we think that's what we want. But you don't. And, and I go into this in depth in a previous podcast, I think it's called why you don't want a fair and impartial jury or something like that. You can find it. Again, I should always look these things up, but I never do before I start talking to y'all.
But the point is that we can't get a fair one, which is what we're going to talk about today, and we don't want an impartial one. And so just to review, I'm not going to go in depth because I have a whole podcast on this, in terms of the why we don't want an impartial one, we're going to talk in depth about the why we can't get a fair one, is that impartiality suggests that both sides have equal merit. And that the person judging has to judge on merit and both things being equal, at least to start. And that is not the case in your cases. Because the other side is not of equal merit. The other side is trying to get away with something. The other side is not following the rules. They're saying, "We hurt somebody and we don't think we need to make up for that." So you don't want an impartial jury, because that's not a fair fight to begin with.
So let's now move on to this concept of not getting or wanting a fair jury. See, when we talk about a fair jury, what we're saying is that we don't want anyone to bring in their bias and have that affect how they view the case. And that, my friends, is simply not possible. I mean, if we're going to kick people off for bias, then we might as well kick everybody off, because everyone is biased. I mean, we think, "Oh, but I want people who are able to put their bias aside." Those people don't exist. We're always going to have our biases. Just because Mr and Mrs. Lawyer doesn't want me to have it doesn't mean that I can put it aside.
And here's the other thing I want you to be thinking about. Even if we could have the jurors put their bias aside, we wouldn't want them to. Why? Because then it would be incredibly impersonal. We don't want a sanitized juror that is untouched by what our client went through. That's not what we want. The way that we drive up verdicts is to have jurors engaged in the process. And the way we get jurors engaged in the process is to have them bring them their full selves to the jury process. So we don't want this sanitized jury in the first place. Not to mention that we can't get them. And, see, here's the other thing, if I were to say to you, "The jurors love you, your side. They love lawsuits. They love lawyers." Would we be trying so hard to kick them off the jury? Yeah, I don't think we would. I don't think we would, until we discovering their bias.
So here's how bias affects voir dire. It affects you, because when you think, A, that it's possible to ferret out the jurors that have bias and have them set it aside, and or, believe that's what you want, then you start doing all kinds of weird shit, like asking them about pie judging contests, and asking them about the different colored suits and all the weird stuff that I have seen happen in jury selection in my time. So bias affects you in voir dire. And that's what I want to caution you against is going down this rabbit hole, trying to ferret out bias because you're so damn scared that you're going to have jurors that are biased against you.
Here's the thing, the only logical way to deal with bias, and you heard it here first, because I don't think anyone in the industry is going to say or has said or will ever say what I'm about to say, so buckle up. The only way to deal with bias is to embrace it.
You got to embrace bias. If jurors are going to be biased, and they will, then we need to embrace it and work with it instead of weeding it out.
So here's what I see all y'all doing wrong, is you're going into voir with this sense that bias is there and you've got to ferret it out and then once you find out who those people are kill them off. And so you are talking about lawsuits. "Do you think lawsuits are good or bad?" And then you talk about lawyers. "Do you like lawyers? Can you give us a fair shake?" And then you're talking about money and "Can you give money for pain and suffering?" You're framing like that, and when you frame it like that, you're always going to lose because, here's the news flash.
No one likes lawsuits. No one. I mean, what is a lawsuit? It's a fight. And not only is it a fight, it's a fight that you are putting the jury in the middle of. Nobody wants to be in the middle a fight. So you don't have to ask the jurors whether they like lawsuits or not. I can tell you right now they don't like lawsuits. So just don't waste your voir dire time on that.
No one likes lawyers. Why? Because you're the one forcing them to be in the middle of this fight. Now, never mind that it's the other side who's not taken responsibility and that's really why the jurors are here in the middle of this fight. They don't understand that. They don't get that. They believe that you are the reason that they're there because you filed the suit in the first place.
And nobody likes to talk about money. No one. And y'all deal in money. What are the things that we don't talk about in polite society? Money, religion, politics, sex. You're tainted. You're tainted because lawsuits are all about money. So you're asking the jurors to come in to this fight and mediate it and decide who's right. And the fight is over money. It's a winning proposition from the beginning because asking people what they think about these issues is always going to turn out bad, because you're hoping and praying for luck to find the people who might randomly loves lawsuits, lawyers, or talking about money.
Listen, if we cannot change their minds, which we cannot, they're coming in already believing that lawsuits, lawyers, and money are tainted and weird to talk about and nobody likes it. So we can't change their minds. What we have to do is then change the conversation. You're wasting all of this time talking about whether or not the jurors are biased and all this stuff. Guess what? The jurors are biased. They're biased for you. They just don't know it yet. They just don't know it yet.
As I continue to say, you stand on the side of the right. You stand on the side of right versus wrong. And that's the way that you need to frame when you're talking in voir dire to your jurors. Right and wrong, period. People are either okay with people hurting other people and getting away with it or they aren't. The jurors are either okay with holding people accountable or they aren't. You stand on the side of the right. The majority of people agree with you. Again, they just don't know it yet. Why? Because what you're asking them to agree with you on is that lawsuits are good, lawyers are good, and talking about money is fine. You're never going to win that argument.
But when you change the conversation to this is about writing a wrong, this is about holding somebody accountable, this is about responsibility, now that bias starts to work in our favor. Now, are there still going to be people in the jury pool that are going to not believe in those things? Sure. There'll be outliers. There's always outliers, people who were like, "Well, I just take care of myself. I don't need anybody telling me what the right thing to do is, and I'm not going to hold anybody else accountable." Right? What's that phrase? All men for themselves? Whatever it might be. So there's going to be jurors on your panel, potential jurors on your panel, that are not going to agree with holding people accountable or responsible. But the majority of people do agree with that.
And so when we change the conversation, that changes everything. If jurors are going to be biased, which they are, and if they're going to bring that bias into trial, which they will, let's use that to our advantage. So how can you get jurors to realize that they are biased for you? Well, you've got to make your voir dire all about principles, principles in your case. What are the things that you want, or not even that you want, that your case is about, that jurors are going to agree with? In most cases, that's very, very simple. So here's how we do it. In the H2H method, we create an issue oriented voir dire. There's several steps, but I'm going to narrow it down for you to three.
First step. What are the fears in your case? Fears meaning things that keep you up at night, things that the defense is going to argue. What are the problems and the issues in the case?
Second thing. What would a juror have to believe about that thing for them to be an ideal juror? For you to relax and go, "Oh, this juror's on my panel. I'm good." And then what questions would I have to ask to find out whether a juror believe those things? When you complete number two, which is what would a juror have to think for this no longer to be a problem for me, now we start getting closer to our principles in the case. So some principles in your case might be hospitals must put safety, patient safety, above anything else. There's a principle. Drivers must keep their eyes on the road. That's also a rule. But these are things that we want our jurors to believe in. And when we have those principles, then we can source them from the jury.
Here's the second place you go wrong. Even if you're using my method, you start telling jurors what the principle is and then asking if they agree. No, no, no, no. We want jurors to give us those principles. How do we do that? Well, we ask three specific questions. And I have a whole podcast on this. It's actually called the four questions. I've narrowed it down to three, since podcasting on that last fall.
The first question is your experiential question. Who here has experience with, let's say hospitals? You or a loved one has ever been in a hospital. You don't need details. The experiential question is just to get us the conversation started. That's it. Go back a few podcasts ago. When I talk about the two questions that stall out voir direct. You don't want to stay and swirl in experiential for very long.
Your second question. What were your expectations when at the hospital around safety or whatever your case is about, around monitoring, whatever it might be. So notice, first question is what experience do you have? Second question is what your expectations are? Third question's, what could happen if your expectations weren't met? So for example, in a hospital, who here has ever been hospitalized or has a family member who's been hospitalized? What were your expectations around monitoring while you were in the hospital? Well, I would expect that they would do it.
Now anywhere in these three questions, you can also use your three follow up questions, which you know if you follow me are what's important about that or how important it is? What is or what was that like? And tell me more. So once somebody says, "Well, I would expect this." You could say, "Well, what's important about that? Or tell me more." And then when you get to the third question, what could happen if they don't do the thing the juror just said? "Well, people could get hurt or die." Then you could throw in another one in. "And what's important about that?" "Well, a hospital should put safety number one." Boom. Now the jury has given me the principle instead of me giving it to them. You might think, "Well, why don't I just say it and ask if they agree?" Because that's not getting the investment that we want. It's much more powerful when the jury owns it and comes up with their own verbiage and we're just asking great questions.
And that's a skill that you have to learn, how to ask those great questions and get out of lawyer mode. So how does voir dire affect, or I'm sorry, how does bias affect voir dire? It affects you and your mindset about what you think you're there to do. And it has you framing the whole conversation incorrectly. Nobody likes lawyers, lawsuits, or talking about money. So stop playing in that field over there. People can talk all day long about right and wrong and what they believe is right and wrong. Frame the conversation over there, change the conversation, because we can't change their minds, and then source those principles from your jurors. That, my friends, is how bias affects voir dire.
Hope that was helpful. Talk soon.
Thanks for joining me today. If you benefited from what we talked about or just want to let me know you enjoy the podcast, go ahead and leave me a review on whichever platform you use to listen to From Hostage To Hero, add a comment. And I just might give you a shout on an upcoming episode. In the meantime, head over to from hostagetohero.com to order your copy of my book, From Hostage To Hero: Captivate The Jury By Setting Them Free, and to get on my mailing list. I send out trial tips and encouragement right to your inbox every single week. And while you're there, make sure you join the wait list to become an H2H crew member when we reopen. We only open a few times each year and you do not want to miss out. I look forward to our time together in next week's episode. Talk then.
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