Episode #155 – A NEW Way to Look at Cases (With Guests Jody Moore & Dave Maxfield)

If you've been following me for a while, you know I teach the CTFAR "Self-Coaching" model*.

Here's the model:

C = Circumstance
T = Thought
F = Feeling
A = Action
R = Result

The basic gist being that you can choose the way you think about your circumstances and those thoughts will create a feeling which will fuel your actions which will get you your results.

But what if we applied the model to our cases? I did just that in a recent Case Workshop and it blew everyone's mind so I got Coach Jody and H2H Crew Member Dave Maxfield on Zoom to talk about all the ways we can use the model as we prep for trial.

YOU DO NOT WANT TO MISS THIS EPISODE!

*The Self-Coaching Model was developed by Brooke Castillo of the Life Coach School

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EPISODE 155 TRANSCRIPTION

When you're up against a hostile room of people who don't want to be there, you need real strategies that get results. Welcome to From Hostage to Hero, the show that gives you practical advice you can use right now in the courtroom, boardroom, or classroom. Learn how to move your unwilling audience to one that is invested in what you're saying, eager to participate, and engaged in the process. Learn from the attorney whisperer herself, your host, Sari de la Motte.

Sari de la Motte:

Well, welcome everyone to another episode of From Hostage to Hero. Sari de la Motte here with you and I am on Zoom with two very special guests, and we're going to play with some cool concepts today. So it's an unusual podcast in that we have an idea that came up in the crew and instead of keeping it in the crew, we're sharing it with all of you, because we think it's really amazing. And what's even more interesting is, we have no idea exactly how this works, and so we're going to work it out with you in real-time. Well, I guess it's not real-time when you're listening to it, but it's in real-time for us, right now. So with me today is coach Jody Moore, who is a coach in From Hostage to Hero, she's on the faculty at From Hostage to Hero. And with us also today is Dave Maxfield, who is a consumer rights attorney down in California, right, Dave? No, no. No.

Dave Maxfield:

South Carolina.

Sari de la Motte:

South Carolina. Totally wrong. I was thinking...

Dave Maxfield:

A lot of people, politically, get us really confused, so that's why.

Sari de la Motte:

I knew that as it was coming out of my mouth. Right. So Dave is here because he just geeked out on this and he is a terrific lawyer and we just thought, "Well, let's all play with this." So thanks for being with us today and you're going to hear more about Dave at the end of the podcast, because Dave actually has a book, not on this particular thing, but we also want you to know about Dave's book. So thanks for being here, you two.

Dave Maxfield:

First of all, let me tell you both, like Kathy Bates said to James Kahn, "I'm your number one fan." But this will hopefully go better than that, but yeah.

Sari de la Motte:

Yeah, here's hoping.

Dave Maxfield:

I'm thrilled to be here, so thank you for asking me.

Sari de la Motte:

Yeah, you're so welcome.

Jody Moore:

Yeah, me too. I'm always excited to talk about H2H method and this is a new part that we're playing with today, so I'm here to play.

Sari de la Motte:

Well, and that's what I think is so fun about today is that I think most people wait until they know exactly how something works to share it with the world, because they want to be seen as "the expert" and I think this is why I like doing this podcast, even outside of the H2H crew is to show everyone outside what the crew's like on the inside. Is that we're okay with playing with things and being wrong and trying things out and so we wanted to model that today as well, so that's why I love that we're doing this. Okay, so let's talk about how this came about. If you are listening, we're going to try to do our best to describe it to you. If you are in a place where you can watch, this podcast is also being shown on video and I'll go to the board, now actually, and talk about the model. So many of you have heard me talk about the model in podcast before. It's not my model, it's the self coaching model by Brooke Castillo.

Sari de la Motte:

And what it stands for is circumstance. That's something that has happened, usually has happened, and circumstances are always neutral. We don't tend to think that they are, but they are. Then we've got the thought. That is giving us the charge or the feeling which then fuels our actions and gets us a result. I'll come back here and chat with you for a minute before I'm back to that. Knowing that that is a model that we use for coaching on how to coach ourselves, meaning, "This thing happened, I have a choice about how I want to think about it and then that choice will then produce a certain feeling, which will then fuel my action, I'll get a result," we thought maybe we use this in trial. It happened organically in a PACE workshop and either Jody or Dave, why don't you share with our listeners what happened and why we got so excited about it?

Dave Maxfield:

Jody should, she knows what happened. I can tell you why I got excited. So Jody, do you want to go first?

Jody Moore:

Yeah. Well, we were working up a case and it happened to be a nursing home case. It wasn't my case, it was somebody else's case, and we knew that the outcome was that the woman had fallen and broken her neck and we were trying to get at what made that conduct really culpable. What was reprehensible about it? What produced malice, suppression or fraud to get at punitive damages? And so we reverse, sorry, spontaneously reverse engineered the model, because we were trying to figure out what the nursing home operator was thinking and feeling in operating the nursing home that produced the action that resulted in this woman being found on the floor with a broken neck. And it blew all of our minds at the moment, when we applied it to the model.

Sari de la Motte:

So let me spotlight here and let's actually do that for a minute and then Dave can talk about his excitement. So we started with the result being a woman is lying on the floor with a broken neck. Right?

Dave Maxfield:

Mm-hmm.

Sari de la Motte:

And help me out here if I forget details. So then we said, "What action got there?" And what action did we say got there?

Dave Maxfield:

I think in the workup, it was that the nursing home or the assisted living facility was really badly understaffed, so there was nobody to help her, nobody to supervise her and so as a result, she fell.

Sari de la Motte:

Understaffed. Yep, understaffed nursing home. Now, if we pause here for a moment, what is the circumstance that brought us here?

Jody Moore:

I think we had the circumstance was just the nursing home admission, like "Woman in nursing home."

Sari de la Motte:

Women in nursing home. Exactly. Right, a neutral fact on its own. She's either being admitted or she's there, but woman is in a nursing home. Great. So this is where things got really cool. Because then we thought, "For this to happen, what would a person need to be feeling or thinking?" So what was the thought that we came up with?

Dave Maxfield:

I mean, there were more than one. One of them was... You had multiple things. You had, there's a decision to under staff, which probably comes before that, but there's some greed potentially underlying that, but this, like I got and I don't remember exactly what we came up with, was this nonchalance or dismissiveness or like, "We like the money, but we don't like the work that much." There's a conscious decision that precedes the feeling, but the feeling that comes after that decision is kind of, it's almost nonchalance or something. I don't know.

Sari de la Motte:

Yeah. Because I think I put in there, now that you're reminding me, I think I put in there, "They don't care." But then somebody said, "Oh, they care. They just care about the money."

Dave Maxfield:

Care about the wrong things.

Jody Moore:

Right.

Sari de la Motte:

They care about the wrong things. Yeah.

Jody Moore:

Right.

Dave Maxfield:

Yeah.

Sari de la Motte:

So, Dave...

Jody Moore:

And one of the...

Sari de la Motte:

Go ahead.

Jody Moore:

One of the feelings that came out that was apathy.

Dave Maxfield:

Yeah. That's what we had.

Jody Moore:

We had greed, but we also had apathy.

Sari de la Motte:

So Dave, talk to us about how and why this is exciting.

Dave Maxfield:

Well, it was exciting because we struggle with things. In trial advocacy, and I'm an adjunct law professor too, so I mean, it's not easy to teach things, but you have concepts like theme to me, which has always been super slippery and how do you come up with that? And where do you come up with that? So what's CTFAR? When you first introduced it back in January, probably before then, but for me in the New Year's day thing, I was like, "What's that? I don't really know what that is." But when you popped it out the other day, I was like, all the diamonds start to just fall out of the sky because you're thinking, right away, you've got a very understandable story. Woman comes into a nursing home, hoping for the best. And I'll come back to this in a second, but I started to do, and did that day, I think like well, the right thought that she should have is like, "I'm going to be taken care of," but the wrong thought is that, "Geez, I hope they're going to take care of me here. I'm a little concerned about that."

Dave Maxfield:

And so you, except for the neutrals like the circumstance, you have a, "Well, it should have gone this way, but it went this way." You gave a right and a wrong for each element of CTFAR. So the reason I got excited was, once I started applying that in a couple of my own cases, all of these things that I didn't see before started to become really apparent. The story got really clear, the right way and the wrong way to do things got really clear. The state of mind of the actors gets really clear, which helps for both your defendant because the people are always going to, to really find reprehensible, they've got to impute a bad state of mind. It can't just be the conduct.

Sari de la Motte:

Right.

Dave Maxfield:

And then what your own client goes through, all of a sudden gets really visceral. For me, I didn't think from the standpoint of the people who bring this case, for example, probably the family, the fact that they're probably up late worrying about it all the time. They've been worried about this person. This person needs a lot of help. Let's put her here, this looks really good, and you think, "Okay, that's going to take me having to stay up all night worrying about her away." But it only makes it worse. And so you start to think about the feelings that these people are having too, that I think it's easy to gloss over if we don't go through some kind of process like this.

Sari de la Motte:

Oh, it's wonderful. Yeah. I mean, I can just see this applying to witness prep, to story creation, to all of the things and that's one of the reasons that you were sharing with me before we got on today, Dave that is so exciting about using this in trial, or trial prep I should say, is because you can explore all those different points of view. So you can say, "Okay, let's do a model from the point of view of the woman in the nursing home." "Let's do a model from the point of view of the people who put her there." Maybe her daughter or her son. "Let's do a model from the nursing home owner's point of view." And technically, when you're using this for self coaching, which is what this is called, the self coaching model, you're never supposed to get into someone else's model, but that's because you're trying to have a great relationship with that person and not be doing all the things that you shouldn't be doing.

Sari de la Motte:

But here, as we use it as an abstract concept of looking at it from the outside in, I think could be very helpful in terms of point of view.

Dave Maxfield:

Definitely. Yeah. I mean, and I'll let Jody talk, but for me it already has been. I mean, it's making a lot of things become clearer and just to get into that sense of play, once you start doing this really from the standpoint of each of the perspectives, your main characters maybe would be a good way to say it, your parties and the people who are the decision makers, you get all this good stuff and then you've got all of these really good nuggets and you're like, "Whoa, what am I going to do with this? Where do I put this?" And it is, one of the things that's a huge takeaway from H2H for me is like, "Hey, this can be pretty fun." And so it is like play. It's like, "Oh, how are we going to put this together?"

Sari de la Motte:

Yeah. Yeah. It's so fun. It's like the murder mystery. I think Jason Franklin was saying that in the actual case workshop, he's like, "Oh, what if we started with a woman is on the floor with a broken neck, dead. How did we get, here jury?"

Dave Maxfield:

Right.

Sari de la Motte:

And I just loved that and I'm not sure how we could play with that yet, except for that would be a great hook, I think in the opening as part of the impactful statement. Dave, before we go to Jody, tell me how you have used this just in the couple of weeks that we've been playing with this already?

Dave Maxfield:

Sure.

Sari de la Motte:

Without giving case details, of course.

Dave Maxfield:

Yeah. Without getting case specific. I've taken probably four depositions since then and I have used CTFAR as the basis of the preparation for each of them to generate the questions I want to ask and I've done it with the right way and the wrong way. And it's not explicit to the people I'm deposing that that's what's going on, because what it's doing is generating a bunch of questions that I'm sequencing, hopefully in a good way otherwise.

Sari de la Motte:

Give me an example, run me through that?

Dave Maxfield:

Okay, so let me think. I'm trying not to get too specific, but so we're always looking for rules and we always, you get them to admit to the rules or look crazy by not admitting to the rules.

Sari de la Motte:

Thank you, Rick Friedman.

Dave Maxfield:

Yeah. Thank you, Rick Friedman. So I have a case that involves, I do a lot of cases involving identity theft, and so I have a case where somebody has come into a car dealership pretending to be somebody else and they bought, essentially about $180,000 in vehicles in another person's name in about three days. And that caused my client, who's the person who was impersonated, all kinds of problems with their credit report and with...

Sari de la Motte:

Sure.

Dave Maxfield:

... just having just hundreds of hours, trying to sort out this mess that, had the dealer had a rule that said, "We better make sure we see the person's actual driver's license when they're in here, signing all this stuff," none of this would've ever happened. And so not to get too case specific, but that got me thinking, the right thing to do is, I'll just take you through the first three parts. The result is you have somebody coming in saying, "I'm so and so, and I'm going to buy all this stuff without negotiating and yeah, I'm here to deal, here to buy, here to spend money." And it's 100% financed, none of this person's own money is going into it. So the thought the dealership would have, the right thought would be, "Oh my God, that's kind of suspicious. Maybe we'd better be more careful with this person." It's COVID times too, everybody's wearing a mask, "Maybe we should be more careful." But the thought is, "It's the end of the year, it's incentives times. We're going to make a killing on this deal."

Dave Maxfield:

So the feeling that you want to have is caution, the feeling that you get is greed instead, and the action you get is this, "Let's just let this one ride. We're not going to check into anything too hard." And so the rule that you get is from that action arm, which is you should check to make sure the person is who they say they are by checking a physical ID. And that's just...

Sari de la Motte:

I love that. You said the result is the person coming in, but I think that's the circumstance.

Dave Maxfield:

Yeah. I'm sorry. The circumstance is the person coming in.

Sari de la Motte:

Yeah, so the circumstances a person comes in to buy a car, right? So far we're neutral.

Dave Maxfield:

Yeah. Nothing wrong with that.

Sari de la Motte:

Someone comes in to buy a car. Two ways this can go down. But it has some suspicious stuff in there. So first thought is, "Oh, let's make a killing. Let's make this easy as possible." And then that creates this action. The other one is, "Great. Let's take them through the proper channels. Make sure they are who they say they are."

Dave Maxfield:

Yeah.

Sari de la Motte:

And the action they take is they check the things. I love this because in your action line, that's where you find out that rule, which is what you just said. How fun.

Dave Maxfield:

Right.

Sari de la Motte:

Yeah. I agree with you on that.

Dave Maxfield:

And then the result... Thanks and I mean, it's all you and Jody, and the self coaching model, which is also valuable. But the result is you get a right result. If you do things the right way, none of this happens. Somebody gets denied, they get a minor inconvenience, my client's never harm. If you don't, you get what happens, where somebody all of a sudden, some innocent person's having to spend 100 hours trying to untangle this mess that you could have prevented in 30 seconds.

Sari de la Motte:

But what I think is also helpful with the model is that because we are not just talking about the actions, this is where the defense goes, "Well, it was an oversight. They didn't mean... Okay, they did it, but they didn't know or they were busy, or whatever." It gets us to motive. It backs us up a few steps to go, "Wait a minute. This wasn't just some thing that happened, some action that just happened. There was some intent here, there was some motive." And so I think that's where we can get to my question would be, as we're working this out, is how do we get them to either admit or how do we prove, we never get them to admit it, that they actually were in fact doing those things? Or do we have to? Where do we land on that?

Dave Maxfield:

I mean, I'm going to defer to Jody, but I'm going to say first, before I forget, I don't think we ever have to get to that. And Jody, what do you think?

Jody Moore:

I think the beauty of a model is that you're going to expose the lie or expose the truth. Because they're going to say, "Oh, I care a lot, or "I check everything, or, "Yes, it's really important to be thorough." They're going to say, they're going to adopt the rule. That's why the rules are so helpful in our cases, because we contrast the rule or the right way to the actual conduct that occurred in the case.

Dave Maxfield:

Right.

Jody Moore:

And so once you contrast, "Well, but would somebody who really cares, or would somebody who's really careful, or would somebody who's putting the interests of other people, the safety of others first really do these things?" And the jury draws the conclusion, "No, they would not."

Dave Maxfield:

Right.

Jody Moore:

But they're drawing that conclusion based upon all of the evidence we're putting into the record that shows that they actually didn't follow the rules. So it's the contrast of saying what they think they're supposed to say so that they're politically correct and giving you the rule because they know that's the right thing to do.

Sari de la Motte:

It's really the contrast between these two.

Jody Moore:

Between thought and action?

Sari de la Motte:

Yeah.

Jody Moore:

Yeah.

Sari de la Motte:

And I think what you're saying and this is what's so cool about this is that it's not even thought, it's actually words. We could take this out during trial and say, "This is what they've said and this is what they did."

Jody Moore:

Right.

Sari de la Motte:

"And this is the result we got." Now, if they had said this, what they would actually do is option B, which would've gotten us different results.

Jody Moore:

Right.

Dave Maxfield:

Right.

Sari de la Motte:

So we could really use it that way in trial. We don't have to call it the model or anything. We could just say, "Ladies and gentlemen, just take a look." Actions speak louder than words. Just using that and say, "Here's what they said, but what did they do?" Now, if they actually were believing this, then what would they do? What would you expect? We can take this all the way back into voir dire. If someone said X, what kind of behavior would you expect?

Jody Moore:

That's the question that came to mind Sari, for me was what would the person have to be thinking to result in this action? That's a inquiry in this exploration phase like what Dave's talking about before the deposition, what would they actually have to be thinking in order to take this action? And it's not necessarily you go into the depo expecting them to agree, that they, "Yes. I was thinking I'm a greedy son of a gun."

Sari de la Motte:

Right.

Jody Moore:

It's just, I know to produce this action, that the action is following from that motive, the greed or profit or doing it quicker or whatever it is. And then you contrast that to, to avoid this outcome, what would they have to be thinking? "Safety first, follow the rules."

Sari de la Motte:

Or what would they have to be feeling?

Jody Moore:

Yes.

Sari de la Motte:

Care and what's the opposite of apathy? I guess caring and..

Jody Moore:

Yeah. Compassion.

Sari de la Motte:

They don't need to be altruistic, but they need to be doing what's best for their client. Yeah, there's so many applications of how we can get to that and I agree with you. And I was asking that question because I know people are asking that question, "Well, but how do I get them to say they were thinking this?" We don't have to. We just have to show that this doesn't match this. There's cognitive dissonance here.

Dave Maxfield:

Yeah.

Sari de la Motte:

You can't get this result without them thinking this. You can't be thinking, "I care about people," and still do these things.

Dave Maxfield:

Right. I think you never get that Matlock moment. I don't think we need it, where it's, "I admit it, I did it. I buried the body here and I would've gotten away with it if it weren't for these meddling kids."

Sari de la Motte:

But you all became lawyers thinking you could get that.

Dave Maxfield:

We all thought that we were going to get those moments and they never happened. But you don't need it, because if the jury comes up with the thought and the feeling themselves, Jody asked a great question a second ago is, "Why do you think that they would do that? What do you think they were feeling when this happened or when they made the decision to do this?" And the jury, I think is going to supply their own motive, which is way better than anything we suggest to them because they came up...

Sari de la Motte:

Absolutely. Absolutely and we can start with that in voir dire, "If someone says this, what would you expect them to do?" And then we can, in closing, say, "They said this, but look at what they did." So there's our trial dialogue again.

Dave Maxfield:

That's great. Yeah.

Sari de la Motte:

Yeah, yeah. Jody, you had other ways that we could play with this. So far, we've talked about different ways of looking at different points of view, we've talked about it here in terms of contrasting it with what they said and what they did, we've talked about it getting at motive. So there's three or four things right there, but you also talked about it in one of the H2H concepts that we use a lot called the designed alliance.

Jody Moore:

Yes. When you first did this model and applied it to a trial skill, it occurred to me that this is a parallel or a sister principle to the designed alliance. So in the designed alliance in voir dire, we're standing up in front of the jury and we're saying, "You probably have your own ideas about how jury selection is going to go and you think I'm going to ask you a bunch of questions, and then I get to decide if you're the right fit for this case or if I want you here. And I don't like to do it that way." And it occurs to me that we can use the thought line of the CTFAR model to put ourselves in the point of view of the juror. So jurors who are coming, grumbling and dreading and resenting that they have to be there, one, we're meeting them where they're at.

Jody Moore:

But by the process of how we're conducting the voir dire with the designed alliance, we're hoping to create a different thought, which is by the end of talking about the principles in the case, we have some enrollment where the jury is saying, "No, this is the kind of case that I would be interested in. These principles are important to me. I do want to be here." And we've actually changed the thought line from dread and obligation to enthusiasm or excitement, or at least open-mindedness and curiosity.

Sari de la Motte:

Well, let's actually play that out. I love that. So when we've got the circumstance of jury selection, in both cases.

Jody Moore:

Sorry, one moment. I hate to interrupt, but we're still looking at your empty chair.

Sari de la Motte:

Oh, thank you. All right, jury selection. All right, so in the current thinking, when they come in the door, is what?

Jody Moore:

"I don't want to be here."

Sari de la Motte:

"I don't want to be here."

Jody Moore:

Yeah. Basically, that sums it up.

Sari de la Motte:

Okay. What's the feeling?

Dave Maxfield:

"I really don't want to be here."

Jody Moore:

Yeah. Just dread.

Dave Maxfield:

Yeah. Dread.

Jody Moore:

Annoyed, annoyance.

Dave Maxfield:

Uncertainty, maybe a little.

Sari de la Motte:

Yeah, of course uncertainty.

Dave Maxfield:

"What's going to happen?" Yeah.

Sari de la Motte:

Okay. And when they feel those things, what's the action?

Dave Maxfield:

Close up, get protective.

Sari de la Motte:

Close up or try to get out of it, right?

Dave Maxfield:

Try to get out it.

Sari de la Motte:

They're not going to talk or try too get out it.

Dave Maxfield:

Not talk.

Sari de la Motte:

This is what we see all the time, right?

Dave Maxfield:

Yep.

Sari de la Motte:

And what's the result?

Dave Maxfield:

You don't get... Go on, Jody, you say it.

Jody Moore:

It's ineffective voir dire. No one's talking, no resonant conversation. Bad jury ultimately.

Sari de la Motte:

Yep. Absolutely. All right, so the circumstance always stays the same when you do another model. So what we're hoping to change their thinking to is what? What do we want them to think when we use the designed alliance?

Jody Moore:

They're here by choice, they want to be here.

Sari de la Motte:

"I get to choose." So what feeling does that create?

Dave Maxfield:

Not autonomy exactly, but certainly some security that they're in control.

Sari de la Motte:

Yeah. I would say autonomy, but also I would say curiosity.

Dave Maxfield:

Yeah.

Sari de la Motte:

Like, "Oh, I get to decide. Well, let me hear a little more then. Let me see what this is about." There's a little bit more engagement there. So the action, I think is what? Talking, engaging.

Dave Maxfield:

Engagement. Yep.

Sari de la Motte:

And the result is a more effective voir dire and a better jury panel. Yes. Yes, for sure. So what's interesting about this is that, and we talk about this all the time in H2H is that we can rewire our brains. But here, we can also help change, literally, the chemistry of the juror's brain. We talk about, in jury selection, that SCARF is at play and their brain is under attack. So the minute that we do the design, the design is our action, actually, and it creates a thought of safety and security and that feeling of safety and security so that they will be talkative and engagement. So our design creates a different thought for them instead of coming in with the hokey jokes and all the things.

Jody Moore:

Yeah and I would say, I want to be clear, because this model can be tricky when you're first hearing about it or learning it like, "Well, how do I change a juror's thoughts?" I want to make sure that listeners aren't thinking, "Well, I'm going to go in and tell the jury what they should think or feel."

Sari de la Motte:

Right.

Jody Moore:

That is not the point.

Sari de la Motte:

Nope.

Jody Moore:

And so the beauty, I think of the exercise of the model and how Dave took it to the next level is, it's an instrument to empathize with whoever you're talking to. It's putting yourselves in the shoes so that you can come at this problem you're trying to solve, getting a jury to open up, getting a witness to be honest about the rules, whatever the problem might be, so you can have a deeper, more honest conversation about it. So it's really, again, it's still self coaching for me because it's telling me, how do I put myself in the shoes of the person that I'm about to talk to get the most out of this conversation, whether it's an adverse deposition, jury selection process. It might be communicating with a judge, it might be talking to opposing counsel, but it's this technique, I think that gets us to that empathy with what is the other person's point of view and from standing in that point of view, how do I drive the point that I'm trying to make right through it so that I'm embracing it and not resisting it?

Sari de la Motte:

Well, and I think too, because when you think about that, I keep having to pin this, sorry and then I keep forgetting, so hold on.

Dave Maxfield:

You're going to get your steps in though.

Sari de la Motte:

I am. Okay. But I'm thinking is I love that, if you do the model of where they are... I mean this could be cross exam and then your witness is thinking, "Shit, I hope I don't say anything that ruins the case." But then that creates a feeling. So for jurors, their feeling is dread, annoyed, and uncertainty, and fear. As we said, the jury selection creates a fear response. So not only does it help you see from that, where they are at, but it also gives you the remedy in many cases. If I know that jurors are scared, then I can do, I should have put it up there, something that I hope will alleviate that, in our cases, the designed alliance, and that may change their thinking. It may not, but I know that I'm at least speaking to what they're feeling. So I think in that way, that's how we don't change their mind, but we identify what they're feeling, where they're at emotionally, and then we try to remedy that if we can. Yes?

Dave Maxfield:

Yes. Can I throw out something crazy, or it might be crazy?

Sari de la Motte:

Yeah. Do it. This is what we're here for.

Dave Maxfield:

This is what we're here for. So I love repurposing things and trying to take things from one place and try to use them someplace else and so I think that's why what you guys did appealed to me so much. But I also wonder, and started to wonder as I use this for depo prep, if SCARF doesn't have some place there too, in that, since what you're really trying to do, sometimes... It just depends on the witness. I mean, some people have the philosophy, "We're trying to intimidate the daylights out of this witness," but I am a more-flies-with-honey, hopefully, person. And I think that, I wonder if SCARF could get a deponent, certainly a neutral one, more comfortable so that they open up more, using almost like a designed alliance in a way with a deponent.

Sari de la Motte:

Yeah. Yeah, absolutely. I think so. So again, we're talking about the SCARF model, which I think people started getting confused when we were doing this the other day and... Oh my God, you guys, I need to get up again. Here I go. All right. Good thing we've got...

Dave Maxfield:

Send more acronyms.

Sari de la Motte:

Yes, exactly. So the SCARF model is from David Rock. If you go back to the very early podcast, then I talk a lot about this there, but the basic gist is our brain is either rewarded or punished based on these five factors. So what our status is, our certainty, how much certainty we have, how much autonomy we have, how much relatedness we are feeling, and if we think the person or situation is fair. And so I totally agree with you, Dave, because if we have a person that we are interviewing or interrogating, however you want to say it in any way, we want them to feel like they're important, that this is how the process is going to go. They can maintain their dignity, their autonomy. We're not the bad guy, because we are more likely to get more out of them if that is the case. We start to antagonize them, just like jurors, they're going to shut down and we're not going to get anywhere.

Sari de la Motte:

And I'm not saying you should be manipulative and be all smarmy here, but I think that the more we treat them and their brains and get them out of the attack place so they're not in fight or flight, but more likely we're going to get what we need from them. Yes?

Dave Maxfield:

Yeah. I mean, part of what you're doing in a deposition sometimes, I take a lot of 30(b)(6)'s and a lot of it is like you're trying to get them to agree with certain rules, certainly.

Sari de la Motte:

Yes.

Dave Maxfield:

And so I don't know, I think there are people who can take a hostile deposition and be really effective at that, but I think certainly for neutral witnesses and most witnesses, not doing that is better. They answer more questions. They answer questions with paragraphs instead of yes's or no's.

Sari de la Motte:

It's better for you too. You're not feeling like you're in fight or flight. And when I read or when I teach on leadership, I always want to talk about power, which is basically what you just said, like a hostile take over situation. I said, "Here's the thing about leadership. Leaders can go to power, no problem. But they won't go there unless they need to."

Dave Maxfield:

That's great. Yeah.

Sari de la Motte:

They've got it in their arsenal, but they're not going to do it unless they have to do it.

Dave Maxfield:

Yeah.

Sari de la Motte:

So I feel like that's, and Randi McGinn would absolutely... she's just, she is a badass, but she is just buttery on cross. She's like, "The light was green, wasn't it?" And they're like, No, no, no." She's like, "The light..." And then they keep going, "No, no, no, no, no." Then she'll go, "Are you saying the light was red?" And they're like, "Well, no, I'm not saying it was red." I mean, she's just beautiful on cross. So I agree with you. The more we have somebody breathing and not in fight or flight and really just processing, I think it's better for us. Absolutely, absolutely.

Dave Maxfield:

And less stressful for us too, probably.

Sari de la Motte:

Absolutely. Much easier on you. Well, it's so funny, we just had our webinar today with John Bailey who won the $120 million verdict. It was such a great webinar because everyone's just like, "Okay, how did you come with that number?" He's like, "Hmm. It felt right." "Well, how did you communicate that to the jury?" "I just told them that it felt right." Basically. "Well, how was this trial for you?" "It was fun." I think we think to get something that big, we've got to be really working hard and really... And what I'm finding from all of the trial debrief webinars we've been doing is people finally, when they release and let go and have fun and trust, then the verdict just flies in.

Dave Maxfield:

I didn't mean to interrupt you, but I just want to say, you had a couple guys on, and I can't remember who it was, who did a debrief and they were talking about what was different when they went through what the method or the mindset, the right way of exactly what you're talking about and they're like, "What did you do?" "Oh, well, we didn't stay up until 2:00 AM. We went to bed normal times, we got up, we went to the gym the next morning and then we..."

Sari de la Motte:

Yep. Yep.

Dave Maxfield:

It was like, "We treated it like it was a normal thing and we didn't blow our routines crazy." So I, this is too much information, but I got one of these aura rings now, where you can start to see...

Sari de la Motte:

Yeah, I noticed that.

Dave Maxfield:

Oh my gosh. The effect of what that does to you, when you stay up until 2:00 AM, getting ready for something and you see what it looks like the next day, and you realize how much more effective you are if you are normal and chill and you stick to your routine and you do the things that, and that's another topic, but I can't agree more with that.

Sari de la Motte:

Thank you for that. Jody, any final thoughts, or either of you, any final thoughts on CTFAR?

Jody Moore:

Well, I just will chime in on this last part, which I think goes back to what was the original design of the model. The original design of the model was the self coaching and I think that when we're approaching trials or an adverse deposition, something that we think is going to be particularly contentious, holding onto the fear like, "What if I don't ask the right question? What if I don't get the hit? Or I'm going to trial, what if I don't win?" I think if we took a poll, an informal poll of every litigator's biggest fear, it's losing. And so the model, originally, at least for me, and I think for many people comes into play there, which is the outcome that I want, I can change the outcome by changing my thoughts. And so if my thought is, "I can't lose this trial. There's so much riding on it. What if I screw up this depo?" Whatever those thoughts might be, they're producing fear, angst, anxiety, worry and the action is hyper vigilance, overwork, staying up until two o'clock in the morning.

Jody Moore:

And the result is this frenetic, panicked depo, trial, whatever. Contrast that to, "I've got trial," and my thought is, "I'm excited. I'm excited, I'm engaged. I'm curious, I'm open. This is going to be fun." And now, my actions are going to come from, "What can I try? What can I play with? What's new for me here? What dance can I do with this witness?" And that surrender is producing the result, and the result, result is not necessarily the win, although we'd love to win, but it's getting through that trial without staying up until 2:00 in the morning and overeating or under exercising or feeling that frenetic anxiety throughout the process. So we've come full circle a little bit.

Sari de la Motte:

Absolutely.

Jody Moore:

But that's what I wanted to say.

Sari de la Motte:

No, I think that's wonderful. Well, if John Bailey can get $120 million on a wrongful death case, where the guy fell asleep behind the wheel, there's no malicious intent, in Texas, in a small little community, in a week and a half trial, and still go to sleep at normal times and still have other people handle parts of trial for him and just trust the jury, then anybody can. Anybody can. Dave, I would be remiss if I miss this opportunity to have you tell everyone listening, both that you have a book and what you think about the crew. So you can tell us either one.

Dave Maxfield:

Oh, sure. Well, I could go on for the second thing for a really long time, but I'll tell you about the book. So I wrote a book with my friend, Larry Port, who started a software company that lawyers use called Rocket Matter, and the book is called The Lean Law Firm. And what it's about is we've taken, people ask questions about, "Oh hey, you run a law firm. What are some good things to do?" And I mentioned, I like stealing good ideas from other places and so we took things like the total production system and the way that intel runs things, and we took lean and agile principles and brought them into the law firm as a way to run a really a plaintiff's practice primarily. The thing that's cool about it is, it's a novel in part. It tells a story, there's a character he's got to save this firm that's spiraling down, even though everybody's really talented. And it's also a graphic novel. ABA, who published it, let us do the first graphic novel for lawyers.

Sari de la Motte:

That's so cool.

Dave Maxfield:

So it's got a lot of comic book panels and stuff, it's really accessible and it's a pretty fun read. And it's on Trial Guides too, which is where you should get it if you're going to get it someplace, and it's on Audible. You could get an Audible, we've got a great voice actor that does all the voices and it's really cool and I just love stuff like that. So thank you for letting me plug that.

Sari de la Motte:

Yeah. We'll drop that in the show notes too. The Lean Law Firm.

Dave Maxfield:

Yeah. Thank you. And I'll let me plug the Hostage to Hero, crewbies, everything. When you get into it, well, it's not a lot of money in an absolute sense, but it's like, "Hope this works. I know Sari. I really like everything she does. I love the book, but I don't know what this is going to be like." And it quickly becomes the most no-brainer, best money you ever spend. I mean, it is like, "I'm doing all this and I have this community," which for a solo practitioner like me is especially amazing because it's like, "Oh, I've got these giant brains to bounce all these things off of." It's incredible. I mean, it has been life changing in a number of ways. One of them I think is that it just takes this thing that's stressful, that you worry about, Jody says we worry about the loss, but I think it's that we worry about how we're going to feel about ourselves if we lose. Because if you ever...

Sari de la Motte:

That's exactly it.

Dave Maxfield:

Yeah. You try a case, you leave everything in the field and you go, "I did a good job and I lost." I found when that happens, you don't feel bad about it, because it's like, "I did a pretty good job. I did everything that I could do." And if we're trying hard cases, sometimes that's got to happen. But just the shift of making things fun and playful, I've enjoyed every minute of it and I've enjoyed getting ready for trial because of it.

Sari de la Motte:

Oh, that's wonderful. Jody had said, "You come for the trial skills, you stay for the community."

Dave Maxfield:

Absolutely.

Sari de la Motte:

I love that.

Dave Maxfield:

And the coffee.

Sari de la Motte:

Yeah, and you can get some consulting. So get Dave's book and you can get some consulting with Coach Jody. That will be up on our website very soon, but I think as of today or tomorrow, Jody is available for half day and two day trial consults. The two day includes a virtual mock jury. So if you need some help, you can reach out to us and connect with Jody that way. Well, thank you two for being here and playing with this. I think even though we didn't know what the heck and where we were going with it, I think we came up with some really great stuff that people can start using right away.

Jody Moore:

Yes. Thanks for having us. This was fun.

Sari de la Motte:

Yeah. Great.

Dave Maxfield:

It's an honor. Thank you.

Sari de la Motte:

Yeah. Talk soon, everybody. Thanks for joining me today. If you benefited from what we talked about or just want to let me know you enjoyed 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 fromhostagetohero.com to order your copy of my book, From Hostage to Hero: Captivate the Jury by Setting Them Free, and 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.

“The model helps you answer the question, ‘What did the defendant have to be thinking in order for them to take the action that led to the result?’”

Coach Jody