Do you ever worry about what to do when you get a “bad juror answer"?
Well… I don’t believe there’s any such thing as a “bad” juror answer.
But there sure as shit are “scary” juror answers.
Lucky for you, you have a Finnish Mama here to tell you how scary juror answers can work in your favor.
And I will explain how in today’s mind-fucking-blowing episode of the FHTH Podcast.
Grab a notepad and a pen because this one is chock full of gold. I swear.
Join us in the From Hostage To Hero Facebook Group!
EPISODE 202 TRANSCRIPTION
Welcome, welcome to another episode of From Hostage to Hero with Sari de la Motte, the attorney whisperer. So glad to be with you today. I hope you're having a fantastic week, and if you're listening to this on Friday, going into a fantastic weekend.
Today we're talking about how to make any juror answer work in your favor. There comes a point in every voir dire circle, and what I mean by that is back in the H2H Playground™, every month we get together and do what we call voir dire, where there are four hot seats and one person gets to conduct their voir dire with the other people playing jurors, and the person will get a bad, "bad" answer and they don't know what to do with it. So I thought I would do a podcast on this, and in fact, I posted in the From Hostage to Hero Facebook group asking y'all to tell me some of the answers you get in voir dire that stump you or that are "bad", and thank you for doing that.
We're going to talk about some of those today. By the way, if you're not in our From Hostage to Hero Facebook group, you can do that by just going to Facebook and searching for that and asking to be admitted. You do have to be a plaintiff or criminal defense attorney to join, but we have nearly 2000 members in there now. You want to get in there because we're going to be doing what I call live podcasting once a month, starting next month, where I will be in there live, doing a podcast and then taking questions afterwards. So I know that some of you listen to the podcast and have questions, so what a better opportunity to come in and actually interact with me. So definitely go and check that out.
Now, there are three common responses that I see to a bad juror answer when I'm watching our mock voir dires or actual voir dires.
One, which is very popular, is to ignore it. You have the deer in the headlights, like oh my god, what the hell do I do with that? And then you just don't do anything with it and you move on.
The second one, I think that's even a little bit more dangerous, is you try to persuade or convince. So you get into this argument with the juror about how wrong they are, and that is not a good thing to do.
The third thing that I see in how you respond to this is that you just automatically write off that juror and you're just like, "All right, cause challenge." And you don't use the bad answer in your favor.
Any juror answer, bad or good, can be worked in your favor because you stand on the side of the right. There aren't two valid points in trial that jurors are trying to decide between, because if there were, that's when you try to persuade.
For example, if I'm talking to my husband. Hey, we've got a week in March that's free, Elin is on spring break, do you want to go to the beach or do you want to go to the mountains? And maybe I want to go to the beach and he wants to go to the mountains. Now I'm going to try to persuade him to go to the beach because they're two valid options, or maybe you're trying to decide between buying a fixer upper or a new house. The fixer upper is cheaper, at least initially, but the new house doesn't have any problems, even though it's more expensive.
Again, there's no right side or wrong side, that's when you use persuasion. But jurors do not need persuasion, they need clarity. They need a really clear pointer, pointers to what is true, because that's how we lose cases.
We lose cases when the truth gets lost. We don't lose cases when we are unable to persuade, because the truth needs no persuasion. If it's raining outside, you don't need to persuade someone that it's raining outside, you just open the fucking drapes. That's what I'm talking about. But sometimes those drapes never get opened in trial, and that's why we lose cases. All right, I'm off on a tangent. So when you get a bad juror answer or comment, I'm going to teach you today how to use it.
Now, there are three ways bad juror answers work in your favor.
One, bad juror answers out bad jurors. Duh, right? We want to know where they are. I'm always so, what's the word, humored? I think it's funny, I guess is what I want to say. When we get a bad juror answer and y'all freak out, and I'm like, isn't that exactly what we're here to find out? Especially in your all's method that you've been trained in, an exclusionary voir dire. How are you going to find your bad jurors if they don't speak up, right? We don't do that in the H2H method. I mean, we recognize the bad jurors and we get rid of them, but that's not our focus. But it's supposedly your focus or how you've gotten to H2H, that's what everybody's doing, and yet when you get the bad answer, you freak the fuck out and I don't get that. So it tells us where the bad jurors are. That's the big working in your favor.
But two, when a juror gives you a bad answer, what it requires of you is honesty and vulnerability. So when you go there, when you're forced to go there with a juror or a jury, that's actually a beautiful thing if you allow it to happen, and I'm going to talk about that today as well.
The third reason, there's probably even more, but you know I love my threes, that a bad juror answer can work in your favor is it forms the group. So if the group is gelling around your principles and then you have some juror say some random ass weird thing that's "bad", that further solidifies your group of us versus them situation, and that's good for you in nearly all cases.
Now, here's what you have to understand. There is no such thing as a bad juror answer, as much as I have said that in the last, I don't know, 10 minutes or so, five minutes or so, there are scary juror answers. How we label things is important. None of this is bad. It's all just information and we're going to work today to make it so that you're not so scared either, but let's just switch over from bad to scary.
Now, let's talk about that before we go into some examples. What makes a juror answer scary? Well, one answer to that is you don't know what to do with it, right? It's so random, or it's pointed, or it's negative and you don't know what to do with it, so that's scary. That is primarily all jury answers. I think most of you don't know what to do with jury answers, if what I'm seeing is any indication. I think you're scared of the jurors, that's why we work so hard to change that, but you don't know what to do with it. That's one reason a juror answer could be scary.
Two, it's a personal attack, and I've seen that happen too, where the juror wants to come at you and that's scary, obviously.
Three, you are worried that their answer has now poisoned or could poison the jury.
And four, which I think is really important in today's conversation, is that whatever the juror just said is true and you don't know how to overcome that because you're like damn, that is true and it's not really great for my case.
So let's talk about how to deal with this. First, let's talk about this whole idea of the poisoning the jury. You've heard me say that that's not something you need to worry about, and I still believe that, but I will say here that poisoning the jury is possible under three conditions.
One, if the group is formed and you don't know how to facilitate and it goes off the rails, and now they're gelling around an idea that you don't want them to gel around. This is why we don't fuck around back there in the H2H crew when we're talking about group formation or facilitation skills, because you can't just go, like I said last week in last week's podcast, and listen to my 15 or 20 minute podcast and then go try these things and fail.
I'm not saying you're always going to fail, but there's a method to the madness, and I can't possibly get into that in a 15 or 20 minute podcast. What this podcast is for you to do is to yes, get some ideas, hopefully get some inspiration, and hopefully join the crew. I mean, let's be honest. That's what I want you to do because that's where you're really going to become the trial lawyer I know that you can be. All right.
Second thing that could potentially poison the jury is if you have a high status individual who says the poisonous thing. Now, this is one of the reasons why we don't often ask for jurors to tell us what their occupation is, because when you have someone in your jury pool who is a doctor, for example, and everyone knows they're a doctor and they say something that is contrary to your med mal principles, now we have a problem.
Now, there's not much you can do if, for example, the judge forces them to do this or they themselves identify themselves. But again, this all comes down to managing group dynamics and facilitating a conversation.
The third thing, third reason it is possible poison the jury is time. So if you allow things to go too long, again, this comes back to that facilitation and those ideas are in the air for a long amount of time, this is kind of similar to what I talked about, oh I don't know, several podcasts ago, maybe I didn't talk about, maybe I said this in the crew, where you get what you need, you get your principle, and then you keep asking and the jurors because they want to help you are like, "Well, maybe it's this." And they start giving you defense points because they've already given you what you want and now you still want more.
So there's another way that you can poison the jury, but poisoning can go both ways, can it not? And we don't call it poisoning when we show them the truth and they align with it. But these aren't things that I think you necessarily need to worry about. Again, it's higher level.
Today what I want to talk to you about is how to use these answers in your favor. So in order to have any juror answer work for you, you need to have confidence in the fact that you stand on the side of the right and you stand for truth. That is where all of this begins. Now, if your case is righteous, and if it isn't, then stop taking that shit to trial. No answer is scary because it's all about the truth. If a juror says something true, you're going to highlight it and elevate it.
If a juror says something that's not true, you're going to highlight it and pivot. Sometimes you won't highlight it, but what you're not going to do is bury it or argue with it, right? Because then it's there and you haven't dealt with it. Any negative answer, especially at the beginning before the group is formed, you're going to deal with. Now, if you have a person who's consistently being negative, there are some group dynamic things we do later in voir dire where we don't hear from them, we shut them down, right? But I'm talking about at the beginning when all the things are starting to gel, we're going to have to deal with all of those "bad," we're going to call them scary answers. Listen, the truth is not afraid of the light. You cannot be afraid of things showing a light on the truth. Bad answers will show that truth is truth. Good answers will show that truth is truth. They're both the same. That's what you have to understand. All of it is true.
So your first question I want you thinking about when you get a bad juror answer, a scary juror answer, is is that true? That's going to determine what you do next. Here's what I mean. So let's start with you get a scary but true answer, right? So maybe you're talking in jury selection about your ask, or if people are willing to give millions of dollars, or if jurors are willing to allow money in their verdict for pain and suffering. One of the answers that you get, and I've seen this happen, is a juror says, "You're just asking that because you get paid, you're going to get money from this." Now, what happens is this goes under the personal attack, right? So immediately we get triggered, like oh my God, this juror's out to get me, but I want you to stop when you're in that moment and ask yourself, is that true?
Now, it's not true that you're only doing it for the money, at least I hope not, but we're just going to sidestep that because that's not important to this conversation. What is true is that you get paid. Yeah, yeah, you get paid. So now that you've answered the question in your own mind is what this juror just said true, now you're going to own it. So you're going to say in your own words, this is just an example, absolutely I get paid, absolutely. I love my job, I love fighting for people who've been injured through no fault of their own. Absolutely, I get paid.
Pause, mic drop. What that does is shows the juror who's trying to attack you, you can't do anything to scare me. And what it shows to the rest of the jury who are still evaluating you and making up their mind about what this whole thing is about is dude, you got balls, or a woman, right? So it is really credibility building for you to own the truth, even if it is delivered in a negative way. All right, let's take one that's a scary answer that is not true. Okay, so the McDonald's verdict. I doubt this comes up anywhere. I mean, does it? I haven't heard it recently. I know it used to come up a lot, but let's say that you're in jury selection and somebody brings up the McDonald's verdict. I don't want to be on a case like that one with the woman with the coffee where she got billions of dollars and like, oh my God, coffee's too hot. Like, duh, coffee's hot, right?
So we know that she didn't get billions of dollars. We know that McDonald's was negligent because the coffee was way hotter than it needed to be, and we know all of these things, and thankfully because of that one documentary I think people are starting to figure this out too. But what I see happen and where I think you're going to want to go because you're human is, well, actually, that's not true. She didn't get a lot of money and the coffee was too hot, which just makes it not great. Okay, so what I'm going to suggest, and again, you might do something different, but what I want you to be thinking about is I am not going to argue. It's like the Jedi. Is it the Jedi? Is it the.. what's the one? A keto or one of those ones where you work with the energy of the other person. If they're coming at you, you use their force against them. Kevin is nodding, I'm somehow on the right track.
So this is what you're going to do with any of those kind of answers. You're going to say, "The McDonald's verdict, did anybody hear about that?" And people are going to raise their hands. Did anybody hear anything different than she got billions of dollars just because coffee's hot? A juror may rescue you, okay? If they don't, you can say, "That was infuriating for a lot of people." Because it was, again, we are back to the truth. That was infuriating. So what's the fear? Let me come back to you, juror, because you said, "I don't want to be on a jury like that." Tell me about the fear there. Tell me about, you may not use the word fear because that might be too personal, tell me about your concern. No one listens to jurors' concerns, by the way, but they are scared and they are concerned.
So listen, what's the concern there? Talk to me about that. And then you're going to compare it to the truth. I don't want to be a part of a lawsuit that's frivolous. Absolutely, I don't want to be a part of a lawsuit that's frivolous either. Then immediately they're like, "Oh, you don't." And you're like, "No, I don't." Now, this case isn't about coffee, right? So this case is about, and you might say one of your context statements if you're using the issue in your voir dire, this case is about a doctor who didn't blah, blah, blah, without details, or this is about safety in a hospital.
So let me ask you, juror, how would you go about determining whether this is or is not a frivolous case? What are some of the kinds of things you'd want to hear about? Do you see what you're doing here? Nothing is scary. Anything the jurors say is fine because you know you stand on the side of the truth, right? What is true? You might go into medical costs. Who here has had medical treatment recently? They raise their hand. How affordable was that? Right? Not at all. Yeah. So that's one of the reasons we're going to be asking for a lot of money, there's a lot of medical bills in this case. You owned the truth, you don't try to avoid it.
All right, let's do another one. So scary but true. So someone says, "Well, he should have watched where he was going." Somebody walking somewhere, or he should have driven more defensively, those kinds of things. So again, here's where you want to be really careful when you're using the expectations question in the funnel, if you're familiar with that, where you say, "Well, what did you expect?" You might want to be a little bit more careful so that you don't get that answer, but if you do, you can say, "That's true. We should look where we walk and we should drive defensively. How can we prevent?" And then something that is true in your case, right? Where it gets to the cornerstone of your case, because what the juror is saying is true, we're going to use it and then we're going to pivot. We're going to say, "Yes, that's true. And how would you then expect, or what would you want to happen in this scenario if something was spilled and we are trained to look at eye level?" Or you might have even ask, does anyone know why advertisers put the kids cereal at kids' level? Because that's where their eyes are, right? What about the stuff that adults buy, right?
What you're using, you're never going to argue, but you're always going to pivot it to what's the truth. So you're always asking yourself, what's true in my case and how can I connect that to what this juror said that is also true? You agree with them. Absolutely, we should look where we are walking. Let me ask this. Who here in the group looks at the ground when they're shopping? Right, so you agree, and who looks at the ground? Because we should look where we're walking, that's not what your case is about, though. Your case is about something that where we normally don't look, we look ahead of us, we don't look at our feet. Now, it's more important that you get the jurors to say these things than you say these things. That's what the whole H2H Method is about, having the jury solve your problems.
So you're always putting it back on the jury, you agree with the juror, and then you let the jury solve your problem. That is so true. Let me ask the group, what about this? Oh, that is true. Absolutely, we need to drive defensively. Let me ask the group, what about this? You let the jury come in and solve that for you.
All right, here's another one, scary but not true. So let's say the juror says, "I just think that your client is lying. I'm sorry. Most people that come into these cases and they're wearing the neck braces, I mean, I've seen this on TV. Just off the bat I think they're lying." Now, what you don't want to do is argue and go, "No, no, no, they're not lying." It's not going to do anything for you. You'd say, "Okay, what would you need to see over trial to determine whether or not my client is lying? And furthermore, would you be willing to go into this with an open mind?" Now, you may not want to go there. Maybe you do want to cause challenge, but what do you want to see is a great question because that will tell you. They'll be like, "Well, I would want to see X, Y, Z test." And you know you don't have that test. So this is obviously not a good juror for you. They're going to require that you give more proof than what you have.
Here's another one that is true, scary but true. So my uncle lost a leg in the Vietnam War and nobody gave him anything. That's true, right? So you're going to agree with that and you're not going to make it a competition. You're going to say, "That is terrible. Isn't it terrible the way that we take care of or don't take care of our veterans in this country? I'm so sorry for your uncle. How is he doing?" It just takes people off guard. So let me ask the group, and then you pivot. When someone loses a leg and it's nothing that they did, nothing that they did to cause this, what do you think we should do as a society? How do you think we should handle this, in light of the fact that we don't do these things for veterans? And someone may say, "Well, they chose to go to war, or just because they don't get paid for that doesn't mean we shouldn't allow other people." Like the jury's going to save you in nearly every case. I hope you're getting the point here that you're always looking to turn jurors toward the truth. You're agreeing with what is true and then using it to your benefit.
Let's talk about amount of money. So you say in this case, we're going to ask for $10 million. People say, "Should I say that the number in voir dire?" Yes, if you can, yes. Why? I want to know what they think about it. I want to know how hard I have to work over trial to justify that. So we train you in the crew to watch what happens when you say that. Now, if they freak, they hold their breath, they deep inhale, you're going to say, "Now that's a lot of money." Because they think it's a lot of money. What's the truth? Again, the amount of money, that's subjective. So there you have to go with what the jury thinks, not what you think. What if they say something like, "If you want money, you're really going to have to prove your case." You just get curious. Say more, say more. Or what's the concern there? Well, I'm concerned that you're going to try to just get by with the littlest amount possible. Yeah, tell me what you'd like to see, say more. And then if you need to, you go into a cause challenge, right?
We're not going to solve all these problems. I think that's where y'all go wrong, is you think to yourself, there's got to be a way to turn this juror. That is not your job. Your job is to find your people. So making a juror answer work for you may simply be, oh, there's my bad juror, right? You can take that into the preponderance situation, but that rarely bodes well, as you've heard me talk about before. Whenever we talk about preponderance, people immediately think, people meaning jurors, they're trying to get away with something. They're trying to get off doing less than they need to. So it's pretty much a dead end for me, but when somebody says that, you can get curious about it and just know and make a note, this is not a juror for me. We're not going to fix every problem.
I just need more facts. I can't answer if I don't have facts. So I've heard this a lot, and the reason why I hear this one a lot is because you haven't asked the right question. This is on you, lawyer. So when you say something like, "Well," and I've seen people do this, "Okay, let's say that you were in a parking garage and there was a puddle on the ground, what would you think?" And they're like, "Huh? What do you mean what would I think? Well, why was the puddle?" Well, I can't give you facts. Okay, so we're not there to ask them fact-based questions. So if you are doing this "right," the H2H way, you're going to be asking about principles, right? What's your expectation about how a parking garage should be maintained? Should it be maintained? Who should be doing that? Who do you expect is going to do that?
Rarely we get the question, well, I need to know more. We say, "Okay, who else wants to talk to me? Just in general, just in general. Do you expect it to be maintained and by who?" Right? And they're like, "Well, I don't want to know." If they keep pressing you can say, "What kinds of things we want to know?" Now, this is why we use the designed alliance, because ahead of time we've said we can't get into facts, we can't get into evidence, we're going to be talking about the principles. So you design that ahead of time so that you don't get this question. So again, three ways to get out of this one. Design ahead of time, ask the right principle-based questions, and if they still press you, throw it back on them. Tell me what kinds of things would you want to know that could help you answer this question? I won't be able to answer them, but I'm curious what kinds of things you need to know. Well, I'd want to know this, and this, and this. That gives you information right there.
What if somebody says, "Well, I don't believe in suing people." I love this one because nobody likes suing people. You might even say that. I think you represent a lot of people. Most people don't like to get lawyers involved in a situation. Would you all agree? And everyone raised their hand. Yeah, my client didn't want to get me involved in this. Sometimes people don't agree on what should happen and we have to come and ask people like you to sort it out for us. So again, what's true? I don't believe in suing people. I don't like suing people. Say, "I think a lot of people believe that." You engender trust with the jury when you are real and you continually turn people toward the truth.
Last one that I got was chiropractic care is unscientific. Okay, so that's not true. So right there, again, we know that a juror, that juror's not going to be great for us. So you can say, "Who agrees with that?" Your jury is going to save you. If I was in that jury, if anyone who's had chiropractic care in that jury would say, "I don't believe that's true." Oh, say more. Scientific or not, I went and it totally helped me. So you may not even say who thinks that's true, you can say, "That's so interesting. Let me ask the group. Is there anyone here who has had benefit from chiropractic treatment?" I can guarantee you somebody has, right?
Now, as you hear these things, I just want to remind you that what you're after is truth. So you're either going to hear truth from a juror and you're going to agree with it and then pivot to something in your case, or you're going to hear something from the jury that is not true and you're going to pivot. You're just going to get curious and you're going to use it for your case. So in the scientific one, I'm curious, who here has had it? Oh, all these people. Okay, great. Now your problem is solved.
Now, if any of this sounds scary, and a lot of it should because it requires, again, that vulnerability and that honesty, this is why I continually say that mindset training is everything. It is a cornerstone in the H2H Method. If you do not have mindset training, if you believe that jurors are your enemy, if you believe that they're just out to get you, you won't be able to be vulnerable, you won't be able to be honest, you won't be able to own the truth. You will be defensive, you will try to argue. That's why I keep singing this tune, mindset training is everything. It is the beginning and end of the H2H method because you have to be in the right mindset to go in and say, "I stand for truth."
The truth is so fine, in fact, it wants to be shown in the light. So anything that's coming at me that's true is great, and things that are not coming at me or that are coming at me that are not true are also great because it shows me who's inflexible. It allows me an opportunity to let the jury solve that for me and strengthen the group, and therefore I don't need to be scared of anything.
Well, I hope that helps. If it did, send me back an email when you get the email about this podcast coming out, and I'd love to hear your thoughts. Talk next week.
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 #201 – Why I Take On My Detractors
- Episode #200 – 7 Ways I Built a 7-figure Business
- Episode #199 – How to Wire Your Brain for Risk
3 pOWERFUL STRATEGIES TO HELP YOU READ A JUROR'S MIND
Let the Jury Solve Your Problems in 3 Easy Steps
Join me for a free training to understand what the jury is thinking so you have the confidence to trust them - and yourself - in the courtroom.
Use the H2H Funnel Method so that jurors tell YOU the principles of the case instead of you telling THEM.
Subscribe to the Podcast
Tune in weekly as Sari shares tips that will help you up your game at trial, connect with jurors, and build confidence in your abilities so that you’ll never worry about winning again.
Sign up for trial tips, mindset shifts, and whatever else is on Sari’s brilliant fucking mind.