Episode #214 – The Trial Dialogue: How Voir Dire and Opening Work in Tandem

I can’t believe this is Episode 214 and that until now I haven’t done a podcast about trial dialogue.

How is this possible? I fucking LOVE trial dialogue! 

So. That’s the topic for this week’s FHTH podcast.

Don’t know what the hell trial dialogue is? 

It’s all about the connection between voir dire, opening, closing, and beyond. And it helps get jurors invested so they’re motivated to do the right thing. 

I know that just piqued your interest, so get your notepad and a pen and tune in to the episode now! 

Enjoy!

-Sari

Mentioned in this episode: 

• Facebook Live on Trial Dialogue (March 19, 2021)

• FHTH Podcast Episode #30: How To Use The Devil’s Advocate Question

• Let The Jury Solve Your Problems In Three Easy Steps (Funnel Method Training)

• 3 Powerful Strategies To Help You Read A Juror’s Mind 

• H2H Fun-damentals™

"All of our problems get solved in voir dire because it starts the whole chain of events."

sari de la motte

EPISODE 214 TRANSCRIPTION

Well, welcome, everybody. We are going to start with a review and this is something that somebody changed and I now I feel kind of bad shaming this person about their shameless review podcast, but this is the new one from STP WHSPRISPRNG, and I love you for it. I love you whoever you are. It says, "Sari delivers can't-miss content for plaintiff attorneys willing to forget what they think they know and try something that sometimes feels counterintuitive. For those willing to take that risk, they'll be enriched with the knowledge of someone who has spent over a decade helping top tier attorneys hone skills that are essential to being a top-notch trial lawyer. The free content on her podcast is worth volumes of trial guides books. I never miss an episode. No doubt Sari's style isn't for everyone. She's bold, brash, and opinionated. She curses like a sailor and proudly plugs herself in her crew throughout the episodes. No doubt that can turn off some listeners who feel such self-promotion somehow undermines the value of her free podcast. Those poor misguided souls. Why shouldn't Sari promote herself? She has found the pot of gold at the end of the rainbow. The podcast shows you the rainbow. The crew gives you the gold."

Okay, well that's amazing, and I don't know whether my podcast app is combining two reviews and it's not the same person, or if the same person felt shamed, if you felt shame, don't feel shame. I was just using it as an example of wanting to be able to promote myself because I think that's totally normal. But I love you. I love you for writing it. Thank you so much. Really, really appreciate it.

All right, today we are talking about the trial dialogue. Now, I went back to look to see if I'd done a podcast on the trial dialogue and I'm like, "I must have done a podcast". I couldn't find one. It must be hidden in there somewhere. I know we have a Facebook Live episode if you want to go check that out on March 19th of 2021, but I thought I would do one on the actual trial dialogue because it's come a long way, my friends. If you don't know what the hell I'm talking about, the trial dialogue is where we talk about, in my work, the immense connection between voir dire and opening and then of course, closing and beyond. I'll talk a little bit more about closing in today's podcast than I have in the past in terms of the trial dialogue in that we ask questions in voir dire and we answer them in opening.

We listen in voir dire and we talk in opening. We form the group in voir dire and we lead the group in opening. So they're intrinsically connected and yet so many of you, hopefully not anymore, knowing that I'm the voir dire gal, but the night before trial will just jot out some questions and hope that's enough. It's not. We believe that voir dire will solve all of your problems. I was just talking today to a very well-known trial lawyer and she was telling me that in her state there was this big battle over CAPS, which that's happening everywhere, and they won some really great legislative sessions on that and some new laws were created around CAPS and they're very excited about that. But the media and the social media and all of the things that were happening around that time has, in her view, poisoned the jury pool to the point that med mal verdicts are now turning defense because jurors are actually saying that "I don't want to sue a doctor because they're leaving the state due to the medical malpractice cases."

She wants me to come and work with them. I'm going to do that, of course, and my first question is, first question out my mouth was "And what kind of voir dire do you have in your state? What limits are there? Because that's where we're going to solve this problem."

All of our problems get solved in voir dire because it starts the whole chain of events.

I mean, let's take a look at the first connection, the ask and the answer. We ask jurors questions in voir dire and we answer them in opening and you've heard me say before that we're not really answering an opening, we're giving the jurors answers back to them. But let's talk about this. What are some of the things that we are going to say in opening? In most plaintiff cases, we will definitely say some things about the danger of whatever it is at the reason why we're there.

We're going to talk about danger. Yep? We're also going to talk about how that danger could and should have been avoided, right? We're also going to talk about how, now that it wasn't avoided and the thing did happen, how we can fix the thing. Notice, if we know that that's what we're going to talk about and that is the order, by the way, that we should talk about it, things are dangerous to avoid that danger and here's what to do if the danger wasn't avoided, hold people responsible with money, duh, we can connect that to our voir dire. Just think about the three follow up questions that I teach y'all all the time. We talk about get rid of "Tell me more" for now. But the other two are, "What was that like?" What's important about that? When we have the money conversation, this isn't a follow-up question necessarily, but it's something I always teach you to talk about when you're talking about money is, "How can money help?"

Notice how those go directly with those three things that we want to talk about in opening. What was that like has to do with danger. In my method, when we start our voir dire, we get the danger in the air first and foremost. We say, "This case involves a semi-truck. Who here has ever shared the road with a semi-truck?" Now people are raising their hands because we know nearly everyone has. So then we say, "What was that like?" Notice when we're going to talk about the danger of semi trucks in opening, we've started that conversation in voir dire. There's the trial dialogue. Or take the how to avoid danger. We know we're going to talk in our opening... let's say it's a trucking case about the importance of training or hiring practices or monitoring or whatever else it is. We can ask in voir dire, what would you expect in terms of training in a trucking company and then we can say what's important about that?

Notice how that starts the conversation in voir dire that we're going to know is coming up in opening. When we're talking about how to fix the damage that occurred because they did not avoid doing the thing they should or could have avoided. We're going to ask in voir dire, "How can money help?" Because later in opening we're going to tell them that money can help. Notice that we start the conversation in voir dire and we... I wouldn't say end it, but we continue it in opening, we end it in closing actually. Now, here's the reason why this is so important because two things that I want to talk to you about. The first one is it makes it jury centered. When we start our case, and we're going to end our case too, making it about the jury.

What were their experiences like? What are their expectations? What do they think could happen if these rules aren't followed? We get investment. When we're talking about how to motivate anyone to act, the number one ingredient of motivation is investment. You got to be invested in whatever it is that somebody's asking you to do or you ain't going to do it. We get investment. By making it about them, we get investment. But the other thing that this does is that it creates familiarity. When we start in voir dire and we're bringing up what it's like, what it's like, it's dangerous, it's dangerous, and we talk about the same thing in opening, it's dangerous and dangerous and here's how we could have avoided that, and then in closing we say they should have avoided it because it's dangerous and dangerous, dangerous, we're using the same phrases and the same words all the way throughout trial, that creates familiarity.

What the brain does with that is it loves it. The brain does not like things that are different, complex, hard to follow, new phrasing, new words, complex terms. It creates this beautiful continuity that we start back in voir dire and we can pull it all the way through in closing. Let me give you an example. So in our nine part template, if you take out the three places where we deliver the hook and then the hook, that's kind of changed, and if you're an H2H crew member, you know what I'm talking about. We take those three pieces out, we've got these six pieces left. We have our teaching section, we have the defendant's story, we have the challenges section that's kind of like David Ball's undermining section. We have the cause and effect. That's where we're talking about causation. We have the plaintiff's story and we have the money can help section.

We take those six sections and we know that those are coming up in opening. There are things that we can be doing in voir dire that are going to prime the pump, so to speak, for when we get into opening. For example, in teaching, if in voir dire we are asking the jurors about their expectations, "What would you expect a trucking company to do when they're hiring a truck driver? What would you expect them to ask or check for?" or whatever it might be, and they give us their answer, we use that follow up, "What's important about that?" Now, notice we're going to make this beautiful brain connection because when we get to our teaching section in the opening statement, now we're going to say things like, "Trucking companies must do a background check on new drivers. This is important because ..."

Now notice, I asked them why it was important and now I'm telling why it's important. I'm making this beautiful brain connection. Thank you Roy, my beautiful friend, for pointing that out. I just think that's gorgeous that he even noticed that we were doing that. But it's true, there's the trial dialogue right there, in action. We ask them what's important, we tell them, "Oh, look how smart you were. It is very important." Take the story, the defendant's story, we're going to show and tell the story from the defendant's point of view about how we got to where we are today. When we're talking about the danger and we're asking jurors what it was like, "What's that like to be in a hospital? What's that like to share the road with a truck?", now when we go into the defendant's store, we're going to tell them what it was like for our plaintiff and they're going to make that connection.

What was that like? Here's what it's like. Take the challenges section. In our voir dire process, we have funnels based on a line of questioning and once we get our jurors, we're really warming up to our principles and really owning them. If you want to know how to do this, I have a 16-minute free video. Just go to my website, sariswears.com/training and you can get it. But we have these funnels and now they're all gelling around the principles and we're going to throw in what we call devil's advocate question and we're going to say... I have a whole podcast on that. We're going to say, "Yeah, but, I mean, they can't check all of the truck driver's credentials." I don't know. I'm trying to think of some defense point. That's a stupid defense point. But we say something the defense is going to say.

Now, what's gorgeous is when we go to the challenges section we're going to bring that back. We're going to say, "Now, you might be wondering, do they really have to check the credentials? All of them?" Notice how even using the same tone of voice, I'm making a connection on the juror's brain. We started it back there, now we're going to finish it here in opening. Cause and effect. You know you're going to have to prove your causation, so in voir dire, we're going to ask, "What kinds of things would you want to see? Who would you want to hear from? Would you rather hear from a treating doctor or doctor for hire? Why? Say more." We go to our cause and effects, we're going to say, "You are going to hear from expert so-and-so..." because we know they're going to say... or "You're going to hear from the treating doctor" because we know whatever they're going to say in voir dire, we're going to bring it back to them in opening. It's going to make this beautiful connection.

Plaintiff's story, how do we prime the pump there? Well, we have a great conversation in voir dire about what people value so that when we tell our plaintiff's story, we can talk about what our plaintiff values and how they can no longer do those things. Money can help. I'm going to straight up ask the jurors, "How do we hold people responsible?" Somebody's going to eventually say money and I'm going to say, "How can money help?" The jurors are going to tell me because they do every single time so that when I get to opening and we go into the how money can help section, I'm going to use every last bit I got from the jurors. Do you see how this makes this beautiful connection? It really makes... somebody said once, I think it was coach Jody, she said it's like the jurors are writing your opening for you. That's so beautiful because that's exactly what it's like.

Now, in actuality, you've already written your opening before you get to trial, of course, but that's because we know what the jurors are going to say and how do we know what the jurors are going to say? Because you stand on the side of the right and your cases are based on principles and so we know 99% of people believe in the things that we're going to be talking about, so that's how we know what jurors are going to say. Very few jurors are going to say it's okay to over serve somebody at a bar and that's not a big deal. Very few jurors are going to say it's okay for an anesthesiologist to molest patients while under anesthesia, if any. You guys are making this too hard.

Now, in terms of closing, I always say there are three things you must answer, three questions that are burning in a juror's mind. Two in their mind, and then third, we're going to bring in to really help them. But the first two is, what do I have to do and how do I do it? Notice how what do I have to do ties in with the important question. We can bring that back. "Here's what's really important in your job as jurors." How do I do it? We can bring back the DVAQ and the challenges piece. Right now, if somebody says, "Well, they don't need to check all their credentials", you tell them... can bring it back to closing there. Then we're going to do the third thing, which is what happens if I don't? We're going to answer that question even if they're not thinking of it. What happens, juror, if you decide not to help? That's where we go back to that what is this like and what do we value?

Now, there are different non-verbals that are involved in all of these things. For example, for the DVAQ, you always want to use a different type of voice. "Do they really need to" You don't want to make it sound reasonable. Again, I have a whole podcast episode on that. Whereas, "This is important because" You want to be highly authoritative. You're really meaning business versus when you're saying, "Well, what was that like?" You're going into a curious energy. The point is when you use the trial dialogue, you are really working to create your voir dire with your opening and all the way into closing. In fact, we had someone just in H2H that said she went back and she really made sure that everything connected and she got the most amazing result just playing with the trial dialogue.

When you do that, you center it and make it about the jurors and make them invested in the process, and that is why we love the trial dialogue. If you want to learn more about the trial dialogue, I have many, many, many, many videos on it and voir dire and opening and closing in our H2H Fun-damentals™ course. You can buy that right off our website. If you go to sariswears.com/fun, we'd love to hear what you think about that course. If you want to see a little bit more, peek behind the curtain a little bit, I have a whole training that you can watch on how to read a juror's mind. You can go to sariswears.com/jury and start there. All right, talk soon.

Have you ever wished that you knew what the jury was thinking? Well grab a pen and paper because I'm about to give you instant access to a free training I created for plaintiff trial attorneys called 3 Powerful Strategies To Help You Read a Juror's Mind. It's going to help you to understand what the jury is thinking so you'll feel confident to trust them and yourself in the courtroom. Ready for the address? Go to sariswears.com/jury. Enjoy.