Whenever a client loses a case (it happens!) I always ask,
“Did you talk to the jury?”
And in MOST cases my client sheepishly says, “No….”
Ma dudes. You’ve GOT to talk to the jury after a loss (or a win, for that matter) but the reason goes way beyond getting a critique of your performance.
Not talking to the jury costs you in more ways than one. Give this episode a listen.
EPISODE 179 TRANSCRIPTION
Sari de la Motte:
Hello, everybody, and welcome to another episode of From Hostage to Hero. Sari de la Motte here with you today. And we're talking about why you need to talk to the jury after losing. Yes, we are talking about that. So before we do that, let me read a review from the From Hostage to Hero podcast and it's titled, "Everyday" five-star review from NoogaLawyer. And this person says, "If I could start off every day with a new Sari podcast, I wouldn't have too many to listen to. Always on point and always brilliant." Well, thank you so much for your review. I really appreciate that. If you have not reviewed the podcast or the book yet, you can do that wherever you listen to your podcast and you can review the book at trialguides.com. Have you all seen the brand new website yet? It's awesome, if I may say so myself.
Sariswears.com. Go over and check it out. There's a couple Easter eggs on the about page that I want to see if you could figure out what they are. So go head over there and check it out. So much fun at our brand new website. But I want to talk about this concept of talking to the jury after you lose because so many of you don't. And you have all of the reasons why you don't. And today, I want to blow some of those reasons out of the water. So recently in the H2H Crew, that's our online community of our membership, we've had a string of losses. I think there's been four losses in the last couple weeks. Maybe a little bit more than that, which is totally par for the course. And, by the way, can I just say, where else do people post about their losses?
I don't see that on listservs very often, but our people consistently post whether they win or lose. And so many of those posts on losing are all about how they did the best job they could and they had the best time they possibly could have had. I mean, where do you see that? People losing and saying they had a great time while doing it? Look, my saboteur got a little activated. Sure. When I had four or five in a row, people were like, "Well, I lost." I'm like, "Oh, my God. Is there something wrong that I'm teaching them?" But you know what I recognized is that it is not my job to help you all win. I know. That might be shocking to those of you are not in the H2H Crew. You Crewbies know exactly what I'm talking about. Winning is the cherry on the sundae.
It's so great when it happens, but that's not the point. We are in this, and we put this on our website, to fucking change the world. We're changing the way that law is practiced. Listen, if you evaluate yourself on your win/loss record, you're going to have a long, tired, horrible career. But if, instead, you evaluate yourself on the job that you're doing and how well you're doing that job and having fun in the process and then counting those wins as this extra awesome thing, that's where it's at, my friend.
And that's what we're teaching back in the Crew. All right, so winning is the cherry on the sundae, meaning that we lose, many of us, more than we win. That's just the fact. Especially if you're doing MedMal, for example. I think the last time I looked it was 30% of those cases are won. I mean, 70%. More than... The majority of the time, more than half and half are being lost.
Why? Because people don't want to sue doctors. You all know this, right? The doctors are the people who we view as gods. And I actually think it's deeper than that. We were just having a conversation with a trial lawyer, two trial lawyers, that were here over the weekend about why that is. And it really comes down to defensive attribution. You've heard me talk about this before, but we don't want to believe that that would happen to us because we all put our lives in the hands of doctors and surgeons just being in the world. I mean, that's just part of the deal. We go to them when we're sick, we go to them when we need a surgery and we literally offer ourselves up. Most of us are not looking up to see how great of a doctor they are, where they graduated medical school. We're not looking over their shoulder as they're doing surgery.
It's literally a trust game. Yet, when we hear about these terrible things, they're too terrible for us to even understand could happen, so we immediately go and not blame the doctor because if we blame the doctor, it could also happen to us. But we want to have some semblance of control. So we blame the patient and we say, "Well, they did something wrong. They should have gotten a second opinion. They should have. They should have, they should have." And that's what we do when it comes to doctors. But I digress. The point is that we're going to lose cases. And if you are allowed to talk to the jury afterwards, then you fucking should do that. And yet so many of you don't. Now why don't we want to talk to the jury? Well, it's pretty obvious, isn't it? It's like going to someone who's broken up with you over text and showing up at their door and being like, "No, but I want the reason. Tell me all the ways that I failed."
It's a hard thing to do. It's an ultimate rejection and you're tired and you had all of this pent-up anxiety and, what's the word I'm looking for, adrenaline as you wait for the verdict and it comes out and it's against you and you just want to go home. You're just like, "Fuck everything. Fuck them. Fuck Sari. Fuck the whole world." Right? Everything's bad, at least in that moment because it sucks to lose. I totally get it. In fact, one of our H2H coaches recently lost and literally as the verdict came down, he was Facebook messaging me and he says, "It's defense verdict and that's all he said. And I said, "Did you talk to the jury?" And he said, "No, I'm not going to talk to the jury all mad." And I said, "You get your ass in there now."
And, of course, because I'm his boss, he went and he did that. And great stuff, which I'm going to share with you now, but the point is it's difficult, y'all. But is this news to you? I mean, your whole job is difficult. And you go, "Well, yeah, that's why Sari, at least this part, I can just slink away and not have to deal with all the shit that comes up from the jury. Can you least allow me that?" No, I can't because this is going to actually help you in your life. Here's why you need to talk to the jury.
First off is you're going to take that feedback and you're going to work on your craft. That's what this job is. It's all about consistently getting better over time. This is why I want you to talk to the jury. This is why I want you to be in the H2H practice community. So you get that feedback. This is why I don't want you giving your cases to other people because you're missing out on the learning opportunity. Now, I'm not talking about a case that comes to you that's MedMal and MedMal is not your thing because you do PI. Fine. Give those to a MedMal attorney. I love the referral system going on between all you all. That's great and wonderful. That's not what I'm talking about.
I'm talking about cases that you handle that a "big one" comes in, you think, "Well, I couldn't possibly handle this case, so I need to go give it to someone else." No. Your whole point in what you're doing is to get better at it, right? The better you get at doing that, the more people you can serve. So, yes, we are going to practice. Yes, we are going to do the best in our own cases. Yes, we're going to go and fucking talk to the jury because that is going to help you in your craft.
Now, so many of you will say, "Well, the jury is not going to give me the true answer. I mean, they're going to just give me justifications for their answer." And we know this happens, right? There's a study about, for example, this isn't even a how to analyze something like this, but it's very similar and I've talked about it on the podcast before, where they went and they looked at star athletes, star tennis players, star basketball players, and they asked them, "How do you have that winning serve or how do you make that basket?" Look at me with the sports metaphors. And the sports person would say, "Well, I bring my arm back and then I follow through and then I move my elbow this way" or whatever it may be. And then they hooked them up to all kinds of fancy equipment that I don't know the names of and videotaped it.
And they went and they actually analyzed what it was the person did. They totally had no idea what the heck they were actually doing. It was a muscle memory thing. They couldn't describe it in a way that actually squared with what the researchers were observing. So I think the same can be said for our jurors is that they made this decision and we know this is true. It's in the research. And when we describe why we made a decision, it's actually not the reason why we made the decision. So I know that is something that you're worried about and so you're like, "Why talk to them anyway because what they're going to give me is not the truth." Well, here's why you want to talk to them anyway. Because it's never what you think it is, right, for one. Most of the time when I have people go and talk to their jury, they're so surprised what the jury says, if they asked the right questions.
So they'll say, "Well, it was this thing in this case, or it was this part that we couldn't get over". And it was some piece of evidence that got stuck in their brain that you couldn't have even done anything about anyway. Now, why is that important? Why is that important? And why couldn't you have done it anyway? What I mean by that second piece is that oftentimes we don't know this is happening, most of the time. And it gets to the end of trial and we can do all the 20/20. We have vision or what is that? Looking back? 20/20 vision?
Hindsight is 20/20.
Sari de la Motte:
Thank you, Kevin, here in the background. Hindsight is 20/20 vision, right? We think we can do something about, but it gets in and we can't. So that's what I mean about that. But my point is that when we're talking to the jury and they're telling us all of these things and they're having this epiphany about why they think something happened, it's never what we think it is.
It's like, "What?" If we don't talk to the jury, because here's what I see as the danger. We won't go talk to the jury and we'll leave and then we'll make up all these stories about how it was our fault, right? "Well, I should've asked this question or I should have done this or if I had done this in voir dire, if I should have said this in opening" and we have no idea that it's some random ass thing. Because I've seen this happen over and over again that the jury got stuck on and it had nothing to do with you. So for one reason, I'm not saying that happens all the time, but one reason to go and talk to the jury is that oftentimes what they tell you is way less crazy than what you're making up in your mind.
And it gives you some sense of, "Okay, I did everything I could." Don't listen to your saboteur and go off on, "Oh, well then I could have fixed that thing." No, it's normally some random thing, but even if it isn't. Even if it is something that you could have fixed, well, isn't that what you want to know there, too? Don't you want to know whether or not you could fix something in your next trial? I mean, what kind of sense does it make to keep going into trial and losing and never hearing from the very people who are going to help you get verdicts for your clients? These people have really great information to give you if you learn how to take that information with a grain of salt, right, knowing that they try to justify their answers and their decision-making. I'll share with you a tip that we just got actually from a trial attorney that I think is fantastic on how to actually get to what jurors think.
So the other reason why I want you to talk to jurors... I mean, one is so that you stop making up all these stories in your brain about what you think happened and you either get clarification, may not be totally true, or I'm going to show you how to get to truer ones in a minute, or you find out that it's some random thing that you never would've thought of. That also gives you some peace of mind. The second reason is that it gives you practice in facing your fears. Losing trial isn't something that you want to go through. I understand that. But when you continually put yourself in the practice of facing that big fear of standing in front of those people who voted against you, that sting is going to become less and less as you lose trials, which you will, even with the H2H method. It just... You will. We don't win them all, right?
That's just not life. We don't win every case. So it gives you a great opportunity. We do so much mindset work back in the Crew of how to manage your brain around loss, right? Because here's the other thing I want you to be thinking of is that it takes the shame out of losing. When you slink away and you don't go and you face the jurors, again, if you can and not every jurisdiction they allow this, then you are perpetuating the very wrong idea that losing is shameful, that you did something wrong, that you should be tortured because you dare lose a trial and you should hang your head in shame and walk through the halls as people clang bells, right? This is not true. By going and facing the jury, you're saying, "There's no shame in losing." Right? "I did my best, so let's talk about it so I can keep working on my craft."
It also allows you to make the jury less scary. The more we continue to put a wall between us and them, the more scary they get to be and remain. Now H2H does a great job, I believe, in helping you change your mind about the jurors and get in a space where they're just people trying to do the right thing and that trial is a fucking shitshow, regardless of how well you're prepared, regardless of what methods you're using, it's a shitshow. Just talking with these trial lawyers that were here this weekend about how one thing can be said by an expert or a lay witness, somebody that you have prepped, and it sends the trial in a completely different direction. You all like to think you have control. You don't. I'm not going to ask you to give up control because you don't have it.
You never did. So trial is a shitshow, okay? You're going to lose for all kinds of stupid reasons. As I've said before, we win cases we should never have won and we lose cases we totally should have won. It's a shitshow and what we're trying to do with H2H is not control the process, but control our brain around the process. Somebody asked me on a podcast recently, "What's the biggest obstacle for trial attorneys?" I said, "Number one, their brain." Your brain is wired to keep you safe and trial lawyering is not a safe profession. Period. So this is another opportunity for you to go and manage your brain, not just around loss, but around the jurors themselves and understand that these people did the right thing in their brain. They are wrong. Fine. They're wrong. So go and be with that. Now, the tip that I got from Natalie Woodward, one of the trial lawyers who just got a $77 million verdict, highest recorded MedMal verdict ever in Georgia history. Previous verdict was $1 million.
She literally got the H2H book and started listening to the podcast. $77 million, y'all. If you haven't listened to that podcast, it's a special episode, go back and listen to it. Fantastic. She learned how to change her brain. You're going to go and listen to that and you're going to go, "Okay, what's the formula?" Have you not all learned? Have you not yet learned there is no fucking formula? It's about changing your mind about jurors. So she said one of the ways that she gets around this whole justification for decisions versus actual real information the jury gives you is, instead of asking them, "How did I do or why did we lose or why did we win", she asks them specific questions. "What did you think about this witness?" Or, "Do you have any questions for me?" Which I thought was brilliant because when she says, "Do you have any questions for me?", she can get into their mindset because they're going to reveal what they actually think through those questions.
It's kind of like what we do here in coaching. We coach our clients in addition to trial consulting, of course, because we're mindset coaches. And we have a exercise that we use with clients called peak experience. And so what we do is we have our clients go back in time to a time that they felt intensely alive. It could be five minutes ago, it could be five weeks ago, it could be five years ago. Just go back in their brain to a time that they were intensely alive. And we have them pick up the smells and the sights and the sounds and just really bring them there and then we have them share that experience with us. As they're sharing the experience, we're pulling out values that we hear. "Ooh, sounds like freedom's a big thing for you. Ooh, it sounds like adventure's a big thing for you."
And it always resonates with our clients. They're like, "Yeah, that is a big thing for me. Ooh, that's so true." Now, conversely, if we just go and we say, "What do you value?", people will go to their brain and they'll cognitively try to give you what they think they value. When we ask them for their peak experience, they actually go to a more heart center place. And then, as the coach, we reflect back what we're hearing. It's a completely different thing. So same thing here. If you go and you ask the jury, "Why did you decide the way you decided?", you're going to get a cognitive rationalization for decision type of thing, which research shows us is not always the case of actually why they made the decision.
But if you go more to a place of, "What questions do you have for me?" or "What did you think of this witness?", something that's a little bit more open-ended or something that's really pointed like, "What did you think of this witness?", taking off the why'd you make the decision, you're going to get a lot more fruitful answers in that case. The point that I hope you're getting from today's podcast is whether or not we learn from the jury how or why they made their decision, we may never learn that. For me, the big importance for you to go talk to the jury is to manage your brain around the fear. Manage your brain around, "There's no shame in losing" and manage your brain around, "The jurors are not scary." Because the more you put yourself in that position, the more natural it's going to be and the more you're going to take away the sting of it and the weirdness of it.
It's just going to be part of your practice. And that's where you can start managing your brain around what that actually means, which is nothing. We win some, we lose some. All right, my friends, I hope that helps. Talk soon. While you wait for next week's episode, how would you like instant access to exclusive trial skills training on my H2H funnel method for voir dire? Grab a pen and paper so you can jot down the website address for a 16-minute video that will help you win more cases. The free training is called Let the Jury Solve Your Problems in Three Easy Steps and I'm even going to send you a workbook to go with it. Now, are you ready for the address? Visit sariswears.com/training. You'll see me there. Enjoy.
If you liked this episode topic, check out these others:
- Episode #60 – Resonant Conversations
- Episode #6 – Prove Fairness
- Episode #124 – How to Find the Principle in Your Case
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