If you missed our first ever live recording of the FHTH podcast last month, this is your lucky day. The episode is now ready for your listening pleasure.
Tune in to learn what I NEVER want you doing at trial, why I don’t want you doing it, and what to do instead.
(Plus I talk about my love of flip charts and why you should love them too.)
Go ahead and check it out!
Mentioned in this episode:
- Let The Jury Solve Your Problems in 3 Easy Steps (Free funnel method training)
EPISODE 216 TRANSCRIPTION
Hello, hello, hello. If you are here and watching let me know you're here by commenting or sending me a little emoji whatever it may be. We are live podcasting for the first time ever and this is something that I will be doing once monthly. I won't be here in July because I take July off but we'll be doing this again next month, I'll get you the date when I have it. But again, if you are here and watching go ahead and let me know where you are watching from and/or send me an emoji. Again, live podcasting for the first time ever and we will plan on doing this every month. So this podcast will go to the regular people who aren't here today about a month from today. So when you come in and you watch the live podcasting you get a sneak peek on a podcast that will be released later in the month.
Oh, Hi Anna from Denver, Rhonda from Phoenix, Marlo from San Diego. Literally the first time I ever watched a Facebook Live. Well, very cool, Anna. Ken from Pittsburgh. Fantastic, great to see you. All right, so here's how this is going to work. I'm going to podcast just like I normally do. As you have questions feel free to start loading them into the chat and I will answer them at the end of the podcast which we will include in the actual podcast episode. Again, thank you for being here. Kevin from Ohio as well. Good to see all of you.
All right. So today we are talking about never, ever, ever, ever, ever do this thing that I'm going to talk about today in trial. So much so that I just spit on my lip. All right. You know if you've been following me for a while that I rarely say never, ever do something because I'm not the formula gal, right? There's always a place for something. And maybe in some trial, in some courtroom somewhere there would be a time to do this thing I'm going to tell you never, ever to do. At this recording, I don't know if that place exists or where it exists.
So to give you a little background on what we're talking about. Over in the H2H crew which is part of the H2H Playground and if you're not in the Playground and you want to be in the Playground go to sariswears.com and click on the Playground. Or sariswears.com/play and get on the waitlist for when we open again. Or, you can go there and buy the H2H Fun-damentals course and you'll get a special invite to get in early. In the Playground we have our own Facebook group and people are constantly posting about upcoming trials, asking questions, getting help from me and the other coaches. And again, that's just a bonus of the membership, right, that's just a fun place to play.
And someone the other day asked, they said they're going to trial, they're going to try out their new writing skills, right? By the way, you know, or maybe you don't that I love using the flip charts. I love the flip charts. I have a whole podcast episode if Kristi can find it, I'm sure she can, on why flip charts are superior to all other things. We'll talk about some of that today. But what I get a lot of times back is, "Well, I don't use flip charts because my handwriting is so terrible." What I will say to that is "Fucking figure out how to write legibly." It's not an excuse. Figure that out, get it done.
So he said, "I'm going to try out my writing skills and I have a question. In addition to the plaintiff's version of events like a schematic, should I also write out the defendant's version of events?" Now, at first I had a question. Because if you know the template, the H2H template, which borrows heavily from David Ball's template, and Rick Friedman, and all the things. I'm not saying I totally came up with this out of my ass. But my nine-part template versus David Ball's 57-part. I'm making that up but mine is real simple.
First is your hook, two is your teaching session, and three is what we call the defendant's story. Now, when I say defendant's story I want to be really clear what we're talking about today. I am not talking about their version of events, what they say happened. When I use the term defendant's story I'm talking about the part of the opening where we tell the story of what happened from the defendant's point of view. Meaning, defendant driver is in their car, they're traveling down the road, they turn left, right? Not their version of events but what happened to get us where we are today. So I want to be really clear that that's different than what the defendant says happened. It's what we're saying the defendant did.
But this question from one of my crew members was, "Do I draw out the defendant's version of events?" Meaning what they said happened? And I said, "No, never, ever, ever, ever, ever draw, write, interpretive dance the defendant's version of events." And today I'm going to talk about why. And secondly, what to do instead. Now, here is why. When you draw, write anything, anything you are legitimizing it. I don't care if you're saying this is the wrong thing, this is what they say, this is ridiculous, you are legitimizing it. Why?
Think back to kindergarten when we saw things on the chalkboard. I had chalkboards growing up, I know they're all smart boards and all the other things now. But when we saw something written, that was fact. It is wired into our brains that when something is written down, especially big, that is true. Even if we verbally say this isn't true, we are legitimizing it by writing it down. I mean, Michael Cowen who's a crew member and great friend pointed out that the jurors and he's absolutely right in terms of brain science. The jurors will remember what they saw versus what they heard. So even if you say as you're writing, "This is what they say happened and it's wrong," they won't remember that, they'll just remember what was written.
And think about signs, just signs when we're driving. Signs don't tell us the wrong information. There's no information on signs that say, "If you turn left you're a dumb ass and you're going to die," right? It's turn right don't go left. It gives us the correct information. We immediately assume when we see something written down again, especially big, that it is the correct information. We are socialized and wired to do that. So you do not want to legitimize the defense.
Now, not only that, not only do we not want to legitimize defense arguments by writing them down, by blowing them up in a PowerPoint by whatever you're doing, we also don't want to talk too much. And this is where you really get into trouble because I don't see a lot of you using drawing. I mean, this was an H2H crew question specific because we draw everything back, I don't say everything. I don't want you drawing the spine, right? Use a spine, use the PowerPoint for that. But things that are easy that you draw. Let me just pause here and say, "Here's why I'm such a proponent of the flip chart." Again, that podcast that Kristi just posted will tell you more. It engenders trust with the jury when you use a flip chart. Why?
Because you look like a teacher. I mean, one of the reasons Rick Friedman is so successful, I mean, he's a brilliant, brilliant man and I'm so glad to call him friend. But he's also successful because he totally comes off like the professor. He's this unassuming professor. So when you stand up there with a pen and paper you give off teacher vibes. That's one. Two is that you communicate, non-verbally, this is so simple I could draw it easy. Again, if it is something simple. It's just this case is so simple. Now, all of our cases are simple. And if you haven't gotten your case to a point where it's simple yet you haven't done your work. It communicates, this is so easy I could draw it. It's so simple I could draw it. And that's the third thing is, I know this so well I could draw it, right? It's not something that I need all these notes and fancy things it's like I got this. It's a confidence thing. So that's why we're using the flip charts, right?
Not to mention that if you started in voir dire and you're grabbing things the jury is saying, now you're legitimizing their thoughts and feelings. And if you're doing voir dire the H2H way that are actual principles in your case, that's really hard for the defense to shake. Why? Again, back to what we started with. Anytime you write something down you legitimize it. That's why we like the flip chart. But on the flip side, the flip side, it's also so powerful you got to be careful about what you're writing down.
Now, talking too much is also the problem in terms of the defense. I mean, talking too much is a problem in general. But here's where we also get into trouble is that we will talk not about our case, we will talk about the defense's case all the live long day. When we get into trial we all make it about the defense and their case. And here's what I want you to write down right now. Take a picture of you writing it down on a post-it note and post that picture in the comments so I know you did it. Write this down. What you focus on you make important. I will say it again. What you focus on you make important.
The more we focus on the defense case, and what the defense has to say about everything, the more we tell jurors what they're thinking and saying. And what they're going to tell you jurors is important. You should really pay attention to this because I'm paying attention to it. In fact, most of my opening is about them. All of my voir dire is about them. So what they're saying is just super, super legitimate. That is what you are inadvertently doing and I see it happen all the time.
I'm going to do a podcast in fact, I'm going to podcast on that after this podcast on how we inadvertently those defense arguments start to even make their way into funnels. If you don't know what a funnel is that is the funnel method that I teach. There's a free video on sariswears.com if you want to go check it out free. A 16-minute video on what a funnel is and how to let the jury solve your problems, let them give you the principle in your case. Because we're so wired, I don't know how you all are wired this way. Maybe because we're always wired about our fears. To dive in after the defense's case. Sometimes they're even ending up in our funnels and we should never, ever funnel a defense point. I'll talk more about that in just a minute.
So let's talk about how you do this in voir dire, for example. So one of the most recent things I heard, I was a guest on a podcast, and we were talking about voir dire, and he said, "Well, in my most recent case this is how I started voir dire, I want to know what you think about this." And he said, "My client's a Muslim." So the first thing I said after good morning or whatnot was "My client's a Muslim, how many of you think she's a terrorist?" And he said, "What do you think about that?" And I said, "I think that is a terrible way to start voir dire, I just do." Well, you all know primacy and recency, right? What jurors will remember, people will remember, what we said first and last. If you come out and the very first thing out of your mouth is, "My client is Muslim, who thinks she's a terrorist," right, they don't even hear the who thinks she's a terrorist they hear my client's a Muslim and now that's what the case is about. You've just made the case about your client being a Muslim.
Now I know in this particular method it's all about well, I'm just going to share my fears with the jury and I'm going to let them solve that for me. Now, listen, Kristi just posted, let the jury solve your problems. Let the jury solve your problems does not mean let the jury solve your problems, your fears it means let them deal with the defense arguments, right? And we will deal with the Muslim thing, do not get me wrong, but I'm not going to come out of the gate with a defense point. Not even a defense point, it's something the defense is hoping happens. They're not going to come out and say, and that's the other thing. Well, let's see. I'm going to come out and say it because they're not going to. That's all fine and good until you do it the first thing out of your mouth and now you've made the case about that. That is not what we want to do.
Okay, here's my other note about that because I do want to say about this. In this particular method it's I'm scared of this. Should I be concerned? The Muslim thing. How many think she's a terrorist? I mean, I'm afraid that's what you think. Should I be concerned? That's just so dad energy. You're taking my daughter out tonight should I be concerned? It so is not playing with me. Now if it works for you, great, but I'm telling you the reason why I don't like it is twofold. One, you just made the case about that. And two, it's a defense-oriented thing.
See, for me, I want to make it all about the plaintiff and my case. My case is what's going to happen first always, always. I'm not going to come out and be talking about what they're worried about or what they're going to try to hint, I'm going to tell the jury what the case is about from my point of view, primacy/recency. Here's how you do it in opening is that you'll have this long-ass challenges section. We call it the challenges section in H2H, David Ball calls it the undermining the defenses. If you take a look at your opening, and we gave percentages, 50% or more is all about undermining the defense, it's all about talking about how the defense is wrong, and here's all the things the defense is going to tell you. What you focus on you make important. I don't see those post-its being loaded up in the comments so post them. You spend more than half your time in opening talking about defense points you've now made it about them and you've now said that's important, you've said that's important.
Here's how we do it in closing. We talk all about how the defense is wrong. We just make the whole thing about the defense. Why don't we just write a long love letter to the defense's case and send it with some roses and some chocolates instead of doing all the shit you all are doing? Because that is what you're doing is you're saying, This is so important I'm going to spend all my voir dire on it, I'm going to spend my opening on it, I'm going to spend my closing on it. Oh, and here's what we have to say about it. No, no, no, no, no. What you focus on you make important.
Let me give you a very, very bad analogy. Let's say that you represent a cracked egg, right? And the reason that it got cracked is that it was taken out of the carton and put in the fridge and something heavy was put on top of it. All right. So defense points are listen, using the carton is overkill, you can lie eggs on the shelf, that's not a big problem. You can put light things on top of the eggs that's not going to crack them. And you know what? If there's a crack in the egg you can still use it, you can scramble it. I mean, sure, you can't use it to dye the egg for Easter but you can still use it. There's no reason to get all up your panties in a bunch it's still usable, right?
So what do we do? Let's say we're representing the cracked egg. We're like okay, voir dire. Who here has ever taken their eggs out of the carton? Who here's ever had a really full fridge and they needed to make room? Who's used the cracked egg before? And then we go to the challenges and we bring in experts on egg cartons, and how full a fridge should be, and how to tell if the egg is damaged but still edible, right? We make it all about this crazy ass idea when most of the damn jury has never in their life taken an egg out of the carton because that's not what normal people do. Where we need to say, "Listen, eggs can break if you drop them, hit them, throw them, but they can also break if they aren't stored properly. So the way we avoid that is we keep them in the carton and we don't put anything on top," right? Let them talk about their weird ass, crazy, cockamamie story about how it's okay to be taking eggs out of the carton and laying them on the fridge shelf, right?
Here's the thing. Here's why this works. As I said, most everybody keeps their eggs in carton. And guess what? As plaintiff attorneys, you stand on the side of the right. Your case has so much going for it because you stand for reasonableness, you stand for safety, you stand for using the safest available option, you stand for people being held responsible for their behavior. That is all in your favor. Why? Because 99% of the human population agrees with you. That if you hurt someone you should make up for it, that if you break something you buy it, that if you have a safer option available you should avail yourself of it. They're with you. We're just diving in after the defense arguments when we've got them. It works if we focus our case because our case makes the most sense. It just does because everybody is wired that way. You're making this too hard.
People say, "You don't get it, Sari." And I'll tell you, I get it because I'm playing with mock juries all the God damn time. You all are coming out here and the juries are backing me up time and time again. You all come to me afterwards and go, "Oh my God, you're right, they'll solve all my problems. They said exactly what you said they were going to say." It's not because I'm a magician it's because I know that if you focus your case on principles they will align with you. But when we dive in into the defense bucket we make it all about the defense. Our voir dire, our opening, our closing. What you focus on you make important. Now we have a problem.
The question then becomes, how do we deal with defense points without focusing on defense points? Well, there are several ways to do that. We teach a lot of this in the H2H crew so crew members we've got lots of... If you're listening today we've got lots of training on this and you're going to recognize it when I mention it. Here's the gist, here's the energy of it is, it's an afterthought, it's a blip, it's just something like oh, let me just tell you the stupid thing that they're going to tell you, right? We don't say that but that's the attitude that we have about it.
In voir dire when we create our funnel, meaning we have a principle that we want jurors to believe. That people with brain injuries often look normal, for example. That's a principle that we want jurors to believe. We then have a funnel that gets jurors to tell us that thing, right? So we start with "Who here," that's our experiential question. Who here has ever. Any familiarity with brain injuries? You know someone, you've heard about it on the news, right? What's your experience?
In every single panel I've ever voir dired on this they'll say, "Well, they look normal. You wouldn't be able to tell that they had a brain injury." Ding, ding, ding, the jury just gave me my principal. That may take us some other questions to get there. Oh, tell me what happened. I might have to say, "Could you tell that they have a brain injury if you just looked at them?" "No." "What if you talk to them?" "Not really. Not if you didn't really know them you wouldn't really be able to tell. But if you talk to the wife or the son they'll tell you the person's completely different." They give it to us all the time. We're so used to giving it to them and asking if they agree instead of getting it from them which is so much stronger.
All right, so now they've given it to me. People with brain injuries can look normal. Now I'm going to bring in a defense point which is she doesn't look brain... She's not actually brain injured. And I'm going to say something like "Yeah, but if a person looks normal I mean, they can't be brain injured right?" Now notice what I've done, it's called our devil's advocate question. I've made it snarky and stupid sounding. I can't say that in a normal voice. Yeah, but if a person's not... Doesn't look brain injured then they probably aren't, right? They start to think it's normal when I use my normal voice, but if I go "Yeah, but come on, I mean, brain injured you should be able to tell, right?"
What happens is the jury will start fighting. They'll be like "No, I just told you that." A lot of attorneys are scared about this because they're like "I don't want to argue with the jury." They're not arguing with you, they get what you're doing. They get it. But you got to use that different point of voice. Devil's advocate with extra snark on it. That's right, Joey, exactly. We do it that way because we make it an afterthought. First notice I get my principal, then I go yeah, but what about this? Yeah, but shouldn't she have gotten a second opinion? I mean, your mom shouldn't she have got... I'll do that, I'll poke the hornets nest, and the person will go "No." "Well, why not?" "Because we trust our doctor. I mean, I be able to trust my doctor." "Thank you. Absolutely, you should," right? Notice my voice comes right back to normal. So I poke the hornet's nest with the... I start making the defense arguments sound ridiculous which they are, but I actually literally have to make them sound ridiculous with my voice pattern.
Another place that we do that is we have a short challenges section in our opening, right? We have a short challenges section where it's like okay, a couple things that we had to check out before we brought this to you. One is, isn't it possible that this happened? And I'll use that same voice. "Isn't it possible though that she's not brain injured and she's faking it? Here's what we found." Boom, voice is back to normal. No. And you're going to hear from Dr. so-and-so that says blah, blah, blah. I'm not going to spend 50-plus percent of my opening on that. It's like here's this little stupid thing I got to share with you. This is dumb but here it is.
The point is that I'm going to come in with my story first and foremost. This is what I want you to really be thinking about. How emotionally invested are you in the defense arguments? Because that is why you are so diving in after them. Constantly going after them, constantly going after them. I got to spend all my time over there. That's on you that's not on the jury. The jury doesn't know shit. And in most cases, unless you're in bum fuck backwards Missouri where the defense goes first... That's so weird. But most of the time you get to go first, they don't know anything.
So if you get to go first, there's our ultimate primacy. You're going to waste your time talking about defense arguments. Oh, hell no, you got to talk about what's important to you and your case, and then we'll deal with these stupid defense points in a devil's advocate or over here in short challenges section. I'm going to change my voice, change my face like I'm just doing right now. Okay, I just got to talk about this because it's dumb, right, that's what I'm non-verbally communicating. And then I go "No, and here's why. You're going to hear from expert so-and-so." Boom, now I'm back to being a credible attorney person. Focus where you want jurors to focus, firmly on your case. That's where we want the juror's energy because otherwise it's like you got this boat and there's all these holes and you're furiously trying to plug the holes but the defense isn't even gotten it in the water yet and you're just worried about the holes. Don't do that, don't do that. Focus your case on you.
What should you never, ever, ever, ever do in trial? We started with the writing out of the defense argument because what you write you make legitimate. But where we also went today is you do that even just in the amount of time you spend on defense arguments talking about them and voir diring on them. So it's not just the writing so never, ever write it down. But also, be very careful about how much time you spend on defense arguments. You have to have trust and faith in your case, and that carries my friends. The jury will know if you're scared of the defense arguments or you fully believe in your case and it makes a difference.
All right. Thank you. This was a gift from Kevin, the ring. All right, we're going to take some questions now. I am going to look through the comments. But if you have questions this is your time to ask them. Marlo's first time watched a Facebook live. Massachusetts in the house. Matthew's here. Ooh, sunny in Seattle. Hi, Rachel. I was wearing the same thing that I wore last time. I saw Rachel. Rachel, I seriously do have other clothes, this isn't just what I wear, although this is fabulous. I have my Fight Like a Girl shirt on today. What you focus on you make important. Yay, Albert. This ring does have superpowers and the superpowers is me. The body in the ring is the superpower. What you feel is what you make important, yes. Okay, can't post pics in the chat. I don't know, I'm not sure about that. All I'm hearing about is the ring.
Do you all have any questions? This is your chance to ask. I don't see any of the eggplant emojis either, which you all are supposed to do, we asked you to put those in there. If you all are wondering what's the deal with the eggplant emoji, it's the joke is that you all are so concerned with your voir dick size. Like size is everything ladies, right? It's not, it's what you do with it. So that's what the eggplant emoji is about if you're wondering why we keep playing with that in emails and so on. Just to remind you, you're more than your verdict size, okay? Questions, questions. I got to go podcast some more so this is your opportunity.
Again, if you want to learn more about our voir dire process there's a free training on the website you can go check it out there. If you want to get into the H2H crew, into the Playground, you can go get Fun-damentals right now it's for sale on the website and you'll get a special invite to get in early or get on the waitlist and join us when we open again. All right. Thank you, Joey. Joey is showing me his eggplant. You thought I was going to say something else. Don't tell your wife, Joey.
All right, Rob. How do you best decide what part of the defense case you do attack? There's a variety of ways, Rob. This is where I love focus groups, right, is this is what focus groups are for is to test out what's the hot-button issue for the jurors. From the H2H perspective, it's what is the one thing that is in direct opposition to our principle that they're going to bring up? So we decide what our principles are and then we go "Okay, what might shake these loose?" And that's where I want to plug the holes there if I'm plugging any holes at all, is what is in direct opposition to my main principles in the case.
Again, I think the reason you're asking is because there's 16 things that they're going to say, right? That's always the problem, right? There's 16 different defenses and points, and I don't want to have a challenges section that covers all them. Smart. So what happens most of the time is when I'm working with a client we'll look at those and we'll go "These really all fall into three main buckets, maybe four, and the rest of them are so stupid we don't even need to mention it. A lot of that is just deciding that they all fit under the same bucket and then you can handle them in your challenges section really quick.
Rachel, you are welcome. It looks like putting a pic in the comments isn't an option so sorry I told you to do something you couldn't do. Jurors remember what they read. Yes, yes, yes, even if it's wrong. Again, remember that jurors will have all this information coming at them. They're not going to have enough brain power to go "Okay, so that's what the plaintiff said and that was the right one. Oh, and this is what the defense said and that was the wrong one." No, they'll remember pictures, they'll remember words. That's why you don't want to put too many words up on your flip chart either. When I'm talking rules, three words maybe with some bullets underneath, right? That's what they'll remember so that's what we want to go after.
All right. I hope that was helpful. This podcast will drop in about a month but you all were here early and got to see it live. Let me know if this is something that you would like to see more of and we will do that. I plan to do that whether you want to see more of it or not, quite frankly, but it's always fun to know if this is something fun to see me live podcast. We'll catch you on the other side my friends. Love you, bye-bye.
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.
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