Did you know that Arizona no longer has preemptory challenges?
That means the only way for an attorney in Arizona to get someone off the jury is to go in for a cause challenge.
I know this because I was working with some Arizonan clients a couple months ago and the topic came up…
What we were going to DO about this? Should we really bring back the preponderance question?
Now, some of y’all might be wondering what I mean by “bring back” the preponderance question.
Here’s the thing: I don’t train attorneys to use the preponderance question in voir dire.
I have a few reasons for this, and I’ll be discussing them in today’s episode of the FHTH podcast.
Tune in to learn three myths and three truths about preponderance.
Mentioned in this episode:
EPISODE 221 TRANSCRIPTION
Well, hello everyone. Today, we're talking about preponderance and preemptory challenges, and how you don't need either. Oh yeah, I'm on fire today. Here's the thing. I was just with some in-person clients a couple of months ago, when this one drops, it was just a month ago when I'm doing this. We had our coaches here, and we had this great conversation, because we had a couple of Arizona attorneys, about how Arizona no longer has preemptory challenges. Have you heard this? No longer has preemptory challenges. So now, the only way to get a juror off the jury is to go in for a cause challenge, and so the conversations start rounding around whether or not we should really bring back the preponderance question.
Now, if you're saying, what do you mean by bring back? Well, I normally do not train my attorneys to use the preponderance question in voir dire for several reasons. Here's a couple, three myths and three truths. Three myths about preponderance.
First myth, preemptory challenges will get you the jury that you want. They won't. So often, you are spending your time trying to figure out which jurors are bad for you, and then using your challenges to get rid of them, that you do not spend your voir dire on what actually matters, which is creating the jury that you want. That is a problem. So we definitely want to make sure that we are using our voir dire to create the jury that we want, and preemptory challenges aren't going to get us there.
Myth number two, cause challenges will get me the jury that I want. Nope, same thing goes there. Unless you're doing a voir dire, that is creating a group, that is rallying around your principles, those two avenues are not going to get you the jury that you want.
Myth number three, jurors who say they can follow the law will. No, they won't. They won't follow the law. I love jurors, I love jurors more than anyone on earth. I think jurors are amazing. If you have not watched Jury Duty yet, amazing show. Ronald was real. I should do a whole podcast on how Ronald was real, quite frankly. But the point is that jurors won't follow the law because they're human. I'm going to talk a little bit more about that later, but what we're asking them to do is not an easy thing when it comes to preponderance. Stay with me.
Three truths. Jurors don't understand the preponderance standard. They don't get it. I've never seen it done well, they don't understand why it's different than criminal, they don't understand why you're talking about it in voir dire, they don't understand how it affects their lives at all, because we're not even in trial yet, and you're asking them how they're going to do this thing that they don't even know if they're going to do, and can you use the standard on this thing that you don't know you're going to... It's crazy, they don't understand it.
Truth number two, jurors think the preponderance standard is unfair, because we're saying, in most cases, "Look, we don't have to prove this that much. Are you okay with that?" And most of the jury's like, "No. That seems like you're trying to get away with something." Which is why I've never seen it done well.
And three, jurors will always, always, always require that you prove your case beyond a reasonable doubt, no matter how many times you tell them that that's not what the standard is. Why? We are asking the jurors to do a very difficult thing, make a decision, a big decision, a decision that we tell them is really important, and their job is really important, and as jurors, they're really important. You're so important. Now, would you please make this decision and not be that sure about it? It's cognitive dissonance, it's something that we ask them to do that they don't feel equipped to do. It's being on a game show where it's like, "Do you want to spin again or do you want to take the car and the new kitchen? You could get two million over here, but you could lose if you don't spin right, or you could walk away right now with the car and the remodeled kitchen."
They're like, "Oh, I don't know." They're both so equal. And now, we're talking about something that's even way more important, it's incredibly stressful. We're stressing them out with the preponderance question, which is why so many of them buck back at us, because they're like, "That's unfair." Mostly, yes, that's confusing, but mostly because they don't want to have to do it. So they just immediately go to, "That's unfair." This is why preponderance is a big, huge mess. And we're asking them to commit before they've heard anything, anything about whether they're on the case, what the case is about, any of it. We're saying, "Will you commit to using this tool for this job that you don't even know what the job is?" It's like, "Will you use this chainsaw?"
And you're like, "For what?"
"Well, I can't tell you that yet, but will you promise to use this chainsaw?"
"Yeah, what am I going to use it for?"
"I can't tell you yet. But the judge can tell you you have to use a chainsaw, and you can't use a hand saw or a chisel, you've got to use this. Are you okay with that?"
And they're like, "I guess. I don't know." They don't know anything.
Now, back to our clients that were here, we tried anyway, we kept trying. We brainstormed it, we wordsmithed it, and in the end, we realized it wouldn't work for one very important reason, besides all the reasons I just shared with you now. H2H is about how you stand on the side of the right, and how that most jurors are with you because you are principle based, and principles are something that 99% of people believe, and we believe because you stand on the right, and because your cases are principle based, that the jury will solve your problems if you let them. If you give them the empowerment and the trust, they will carry the day for you.
But your training is all about de-selection, it's all about voir dire is to go in there and find out which jurors cannot be fair and impartial. And on its face, that's true. That is what voir dire is technically for. We're reframing that. And so, with that comes a change that has to happen in your thinking and your brain. We're going in there and we're taking a process that doesn't work. Go back and listen to my podcast on trying to get a fair and impartial jury. It doesn't work. The process, the way it's designed, will never work, because we cannot ask people who know nothing about whether they can be fair and impartial, and then believe what they have to say. It doesn't work. And so, we're reframing that process. We're sharing the principles with the jury. In fact, they're sharing them with us, and we're getting that out in the air, and then finding out, yes, who doesn't belong in the group, but the group is now more empowered, starting in voir dire.
So why didn't it work when we were doing all of this? It didn't work because we were coming from fear, and that is not something that we do in H2H. I love an intellectual problem as much as the next person, but it didn't work because we were coming from fear. We were trying to take an intellectual exercise and it wasn't working because we were doing it out of fear. Oh my god, Arizona no longer has preemptaries. Oh my God, what are we going to do? How do I do cause challenges? All of the things. So when we calm down and we realized that, we came back to what we said, which is, "We don't need preponderance." We don't even need preemptory challenges, because what we are there to do is not deselect jurors, our job, as far as H2H, is concerned is to go in there and let the jury solve our problems by letting them give us the principles that we know in advance what they are, forming that group, and trusting them to become the heroes we know they can be.
So what do we do? We do a kick-ass voir dire. That is really the answer when you don't have preemptaries, and even if you do, we do a kick-ass voir dire. Preemptaries, to me, are a safety valve. They're a nice thing to have, but we don't need them, because we now have the fuck-to-do voir dire around here. Same with cause challenges. So many people think voir dire is all about how many people can I get off for cause, it's like this badge of honor. People ask me all the time, they're like, "Well, what's your method of doing cause challenges."
I'm like, "I don't have a method of doing cause challenges. How the fuck do I know how to do cause challenges? That's not part of my method. Y'all been trained how to do that, so go and do it." And I'm not saying you never use cause challenges. Sure, it's a great thing to have, it's a great tool to have, but we don't have to have it if you do a great voir dire. Now, unanimous verdicts in some crazy ass states, yes, it's much more than a nice thing to have. I'm talking in general where you don't need a unanimous verdict.
I was just asked to work with a trial team, and the fear was, they had won in the legislature on some great things for trial lawyers in general, but in that process, the media had done quite a number on the reputation of trial law and trial lawyers and the whole tort reform piece. And so, they wanted me to come in and, how do we now do voir dire knowing that all of the people out in our jury pools are believing and thinking that we are the reason why doctors are leaving the state? And so, I said, "Well, here's the thing to recognize. The jurors that you're worried about are not the jurors you should be worried about. The only jurors that we care about are the jurors on the day of trial, and the only thing that's going to matter with those jurors is the voir dire you do that day."
I started with a CTFAR model. So what's the circumstance? The media said X about trial lawyers. The media said trial lawyers are the reason why doctors are leaving the state. That's a fact, it's something that happened. All right, so what's our thought about that? Thought is, "Oh my god, the jury pools are all poisoned." So what feeling does that cause? Fear. And what action do we take when we have fear? We settle more cases. We don't go to trial. We're scared of our juries. And what result do we get? We're not going to trials. We're not getting any results. We're not holding people accountable. We're not doing the things that we know are important for trial lawyers to do. This is the first thing we did that day.
Second thing, what's our model we want to think? Circumstance is the same. Media said trial lawyers are the reason why, or trials are the reason why doctors are leaving the state. What do we want to think? That jurors want to live in safe communities. What feeling does that create, when we believe that there are jurors that want to live in safe communities? All jurors want to live in safe communities. That gives us a feeling of calm, of groundedness, of confidence. And when we feel that, what kind of actions do we take? We go to trial. And what results do we get? We get results because we're holding people accountable. It's a mindset, that's why you're trying so hard. That's why we tried so hard to make preponderance work until one of my coaches is like, "Here's why it's not working. We're coming from fear. We're trying to solve the problem of Arizona doesn't have preemptory challenges anymore." And that's when we realized, that's not a problem, it's never been a problem. The solve is always going to be to do a great kick-ass voir dire.
Now, if you insist on doing the preponderance question, I will share with you as far as we got, which is the language... You've heard me say this before, I have another podcast on preponderance, but the language is to use, in this case, who here has heard about beyond a reasonable doubt? Yes. Where'd you hear that? On TV. What kind of trial? Or if there's jurors there, what kind of trial was that? Criminal. Why do we use that in criminal? Because you're going to send someone to jail, you got to be damn sure. Here's the language you can use. In this case, you don't have to use something that hard. We're going to do it as a gift for juries. You're only going to have to decide which side makes more sense. That was the language that we came to, "Which side makes more sense?" And in that way, it's easier on you, because you don't have to be beyond a reasonable doubt. How many of you would be willing to judge this case based on that standard, which side makes more sense?
Now, at that point, I have cognitive distance, because the juror's like, "Why are you asking me if I'd be willing? It sounds easier." So it might just be something that you tell jurors. Again, we're not using it for cause, which is why I, again, like saving it for closing. Tell the jury in closing, when you tell them how to do their jobs, that here is the easy part, you don't have to be totally sure, you just have to decide. Because there, it makes sense, to tell them this is a standard. Here's the tool you're going to use to do this job that you now know what the job is. It makes so much more sense over there. You still want to use it as a gift you're giving to the jury versus something you're asking to get away with. We only have to prove versus you only have to decide based on this standard.
But I wanted to share with you that, whether you have preemptory challenges or not, whether or not the judge shut down your cause challenge, you don't need preponderance, you don't need preemptory. You don't even need cause challenges, in most cases. There's a caveat with that. What you need is a kick-ass voir dire. Focus your time there, and you'll find that most of your problems, if not all of them, the jury will solve for you.
All right, talk next week.
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