Y’all know I have a big ‘ol crush on plaintiff trial attorneys. That’s my area of expertise and the focus of all things H2H.
However, the H2H Method can be (and has been) successfully applied in criminal defense cases, too.
That’s what I’m talking about in today’s episode of the FHTH Podcast.
So. If you’ve been dying to know if you can take the H2H Method to your criminal defense trial, tune in for the answer.
Enjoy!
Sari
Mentioned in this episode:
"When your kid comes to you after you’ve found some evidence of wrongdoing, the more they explain why they're not guilty, the more guilty you know they fucking are, right? In criminal defense cases, the more you talk about why your person isn't guilty, the more guilty the jury will think they are."
sari de la motte
EPISODE 224 TRANSCRIPTION
Welcome everybody to another episode of From Hostage to Hero. Today we're talking about How to Apply the H2H Method to Criminal Cases.
So this question has come up quite a bit, both from people in the H2H crew asking how I would adapt the method, excuse me, people wanting to join the H2H Playground saying, "Do you have anything for criminal defense attorneys?" And so I wanted to do this podcast. It's obviously not going to be all end all on the subject for a couple of reasons.
One, I'm not going to get into all of the nuanced here in a 20 or so minute podcast. But two, this is not my area of expertise. I started in criminal law back when we had the four days of voir dire and now we get 90 minutes. But I didn't stay there. I quickly moved to plaintiff and I've pretty much been doing plaintiff work for the last 15 years.
There's been a criminal case in there, here and there, but not very often. And of course, my book is geared toward plaintiff attorneys and all my work is geared toward plaintiff attorneys. That said, we do have a lot of criminal defense attorneys in the crew and more asking every day. So here, this is for you. Now, I may go and develop something totally on this. Doubtful, I'm very busy. But I also, after doing this podcast, would love to hear from my criminal defense attorneys to tell me what I got right and what I got wrong. And so again, before we start, I do not know criminal law as well as I know plaintiff law. So take everything I say with a grain of salt. All right?
So in the current H2H method, we focus in three areas. We create compelling content, we learn how to command the courtroom, and through all of that, we're claiming our freedom, meaning our mindset, we're getting our minds right. We do all that so that we can take jurors on the hero's journey, which is in the book called The Method, but it is now called The Hero's Journey, which means we start out by creating safety, we get them engaged, we get commitment, and then they take action. All right. So that's the journey that they're going to go on in trial.
Now in plaintiff world, we talk about how there are two questions that you must answer to get a verdict in your favor. The first question is, how could this have been avoided? If jurors can't see that it could have been avoided, then they're just going to say, "Well, shit happens. What can you do?" And you won't get your verdict. But if you can show that it could have been avoided, but you can't show that money can help, which is the second question, how can money help? You also won't get a verdict, right? Because you need to show that the money's going to do something, mean something, help something fix something.
We talk a lot in The Method about the trial dialogue. The connection between the voir dire in opening, where the voir dire is where we ask questions, openings is where we answer, voir dire is where we listen, opening is where we talk, voir dire is where we form the group, opening is where we lead the group and beyond. We do an issue oriented voir dire, which means it's based on principles. We have our nine part opening template, in the closing we're pretty much telling jurors what they have to do and how to do it. So with that backdrop, let's talk about the differences and more importantly, the similarities between plaintiff cases and criminal cases. So the biggest difference is that in criminal cases, what y'all are after is the NFG, which I had no idea what that meant until one of my criminal defense clients in the H2H crew was in trial.
And this has happened twice back there actually. And he posted all caps, NFG, and I'm like, "Oh my God, what does that mean? Not fucking good?" And he said, "No, not fucking guilty." And I was like, "Oh okay." So in criminal cases, that's obviously the goal that acquittal, whatever terms you want to use, that's the goal. Where the goal in plaintiff cases is to get a money verdict for the plaintiff. Now, that's the biggest difference. But in other ways, they are very similar in that in criminal cases, you have this big burden. I don't mean the burden of proof, right? There's another place how they're different. In criminal cases, the other side has to prove it beyond a reasonable doubt. Where in plaintiff cases we use preponderance of the evidence or clear and commencing, so on and so forth. So there's another difference.
But in terms of what it is, in terms of the societal view of you, you are very, very up against it, just like our plaintiff attorneys. Meaning that if you're a criminal defense attorney, when the jury gets in and they see you and your client, they immediately think your client is guilty. The end. They don't even have to hear anything. The fact that this person got arrested, the fact that this person is there means guilt. That's what your burden is to overcome with your jurors. Where with plaintiffs, they are viewed as ambulance chasers or the sharks, or they're only in it for the money. That's the burden they have to overcome. If I give you a verdict, that means my insurance rates are going to go up, that doctors are going to be leaving the state, so on and so forth. So in many ways it's very similar in terms of how you are viewed by society and how you have to overcome that in the minds of the jurors.
It's also very similar in that it's the David versus Goliath, right? So with criminal cases, it's you against the government, the police, and the DA, all of the people who have more time and money and all the things where it's just you, one guy or gal. In plaintiffs, they're up against, one guy or gal, up against big firms, big insurance companies, people with a lot more money, right? More time, more sway. So that's also how it's similar. There's also a big fear factor here. If somebody came up to me when I was speaking in North Carolina and they said, because I was speaking again from the plaintiff point of view, and they said, "Well, I understand that you need to let go of winning to really focus on your job as a trial attorney. That makes sense as plaintiffs, but as criminal defense attorneys, how can we do that?"
I mean, it's not just money that's at stake, it's somebody's life. They might literally be killed if you have the death penalty where you are. But they could go to jail. Their freedom is at stake. And my answer to her was, "And how does that fucking change anything?" You still can't control the win. You still can't control what jurors think. You still have to give up your insistence that winning is the only acceptable option, because as crappy as that is, it doesn't change a damn thing. You still do not have control and thinking you do is going to take you off your game. So where criminal defense attorneys have this fear that their client is going to go to jail or be killed, horrible. Plaintiff attorneys have the fear that they put all this money in the case and they won't get it back and their person won't get the money they deserve so they can go on and heal and have the best life possible.
So there's another place where y'all are similar, but you know this, many of you are criminal defense attorneys and plaintiff attorneys. So, how does the H2H method then play with criminal offense like it does with plaintiff cases? Well, let's take a look at what the problem is. So the problem for plaintiffs is that jurors think that we're only here for the money, right? Insurance rates are going to go up, doctor's going to leave the state. So the response to that has been to try to convince jurors that we have a worthy case, that it's worth giving money to, that that money's going to solve this. And what we at H2H have said is that's the wrong thing to do. If you listened to my podcast a couple of weeks ago, I talked about this very thing, the one thing you're doing at trial that's going to tank your case.
We do not make it about the money. If jurors are like, "You're here for the money," and then we come in and all we talk about is money, then we're saying, "You're right. It's all about the money." So what we've done at H2H is change the conversation. Instead of talking about money, now we have a portion where we talk about money for sure, but we have, the crux of what we're doing, is about the principles that underlie the case. The things that all humans believe in, that bad actors should be held accountable, that irresponsible people should be held responsible, that life has value, that the things that don't come with the price tag often have the most value, like family, relationships, hobbies, the way you spend your free time, nature, animals, that those things and the ability to enjoy those things are really what life is made up of.
So we change the conversation. Instead of saying, "We're here for the money, who can give me money," and trying to convince them that that's the right thing to do, we don't make the case about money. We make the case about what it's really about, and then we tell the jurors, "The tool you're going to use to show your communities that you care about these very human things, is money. That's just the tool. That's not what we're here for. We're here for this. The way you're going to enforce that, the way you're going to say that means something is through money." That's how we deal with it, the problem of you're only here for money, in plaintiff cases. We talk about how the defendant violated the rules connected to those principles. So when I'm looking at the problem for criminal defense attorneys, and again, the problem as we just talked about is if you're there, that means you're guilty. That's just the stereotype. That's the bias that most jurors are coming in.
The question is how do we solve that problem? And here's the answer. Exactly the same way. I mean maybe not exactly in terms of what you're talking about is different, but the way we're going to do it is the same. Meaning instead of making it about money like plaintiff attorneys, same thing for you. Instead of making it about why your person is actually not guilty, we're going to make it about principles. We're going to make it about what it's really about, right? Because the more we talk about in criminal cases why your person isn't guilty, the more guilty the juror's going to think they are. How many of y'all have kids? When your kid comes to you after you found some evidence of wrongdoing, the more they explain why they're not guilty, the more guilty you know they fucking are, right?
Because they're focusing on all the reasons why this couldn't have been them, and it was probably the sister, but it wasn't me, for all of these reasons and you're thinking, "Ah-ha, the more they talk, they're guilty." Same goes here. We talked, in two podcasts ago, two live podcasts to go about how what you focus on, you make important. So you keep focusing on your client's guilt and how it's not true. Notice how you think you're not focusing on it, but by just focusing on it itself, you're making it about that. You're saying, look at all these things that they're saying about my client. Here's why they're not true. Same with plaintiff attorneys. Look at all the, we do want money, but it's really not about money, but let's keep talking about money. Same thing goes, you're going to make this about principles and you're going to make it about a violation of those principles.
So then my question to you is what are the principles in your case? You should follow the exact same structure that we use for plaintiff cases. First thing, fears list. Here's all the things I'm afraid about in my case, here's all the things that the DA is going to say. Here's all the evidence that they have or they think they have. This is what they're going to tell the jury. What do I want my jurors to believe about those things? In there, somewhere, will be some principles. We recently had a case about someone who had "kidnapped their child" to save them from danger, and I said to her, I said, "Well, parents will do anything to keep their kids safe." There's a principle right there. Notice how I'm not making it about what they said she did. I'm making it about what I'm saying it is, right?
So I'm still going to be going to look, even in criminal cases, for my principles. What is true here, I mean, there's some general ones, just like there are general ones in plaintiff cases, right? Money hold people responsible. If you break something, you buy it, right? There's ones like that in criminal cases as well. Innocent until proven guilty, police shouldn't be able to entrap people. And there's principles, you know what it's like to be accused of something you haven't done. Very, very visceral principles that you can find in criminal defense cases that you put out to your jury. I mean, when I'm thinking about, for example, our opening template, how would I adapt that? Well, your hook is going to be the same as a plaintiff hook, it's the thing that hooks the audience. You might say something like, "Parents will do anything to keep their children safe."
That might be your hook, because all the parents are going to be like, "Hell yeah, that's true." Immediately they're on your side. Then we go to the teaching section. Now, again, here's where I'm not sure what is allowed in criminal cases. In our teaching section in the plaintiff case, we talk about how to do the thing right that the defendant obviously did wrong. How do you do it right? So in your case, if you're allowed to do this, you might talk about how police should conduct an investigation if in fact they did it wrong and that's part of your defense. Talk about what police should do. When police get a notice about X, Y, Z, this is how they should investigate it. They do these three things. When you go to the story, you're not going to be talking about your client. It's the same thing in plaintiff cases. We don't talk about the plaintiff. Why? The minute I start telling the story from the plaintiff's point of view, now everybody listening is thinking, "I wouldn't have done that. I would've looked more. I would've gotten the second opinion." It doesn't matter if they would or not, it's something we do to keep ourselves safe. Same thing goes for criminal cases. You start telling the story from your client's point of view.
When I clicked on this thing and it was accidentally child porn or whatever, jury's going to be like, "Oh, I would never do that. They're obviously guilty." In fact, I had somebody say this to me in a seminar once. They're like, "Well, how do I tell the story? Because when I start telling the story about my guy and how they found child porn on his work computer, it just sounds awful." I said, "You don't tell the story from your guys' point of view. Who are the people that are bringing the case? The police, the DA, tell from their point of view. How they set up this sting, how they broke these rules that they weren't supposed to break, how they found this thing."
If that is in fact the case, so try, if at all possible, to tell it from the person who's prosecuting, their point of view and how they broke these rules that you just talked about, that they shouldn't break. Even if they didn't "totally break" them, but they pushed them too far. They did too much. There are other things they could have done. Let's say it's an excessive use of force, right? So yeah, they have the right to do X, Y, Z, but they didn't have to escalate it. They could have done X, Y, Z instead of A, B, C. When you get to why we're here, you talk about how the prosecution went too far. When you talk about undermining or the challenges section you talk about, now, you might be wondering, well, why would any innocent person have porn on their computer? Well, there's lots of reasons, and you talk about it there.
You don't lead with that. When you get to the causation section, you can then really connect. When the police broke this rule, it led to this, and now we're here. When you get to the plaintiff's story part, talk about your client and what it's been like for them since they've been in jail or been accused or how they lost their job. When you talk about how money can help, you talk about how honoring the freedoms that we all have as Americans to be presumed innocent or whatever your little spiel is, that's where that would go. So in other words, there's not a lot that would change between a plaintiff opening and a criminal defense opening. I think the big thing that you have to keep in mind is that you do not want to fall into the trap of doing what the other side wants you to do, right?
The other side in plaintiff cases want to talk about how you're just making it up and it's all about money. And so what do we do? We just jump into that hole. We talk about money. We talk about why money's warranted. We make the conversation about money. In criminal defense case or a criminal case the DA, the government, wants to say how this person is guilty and what do we do? We jump in and we say they're not guilty, but we're still having the conversation about guilt or not. Change the conversation. That is the H2H method in a nutshell. We're not going to talk about what they want to talk about. We're going to talk about, we want to talk. We're going to take control. Now, I know with criminal defense, you often go second. Still, this still can work. It's just you're telling it from your point of view, and I think that's why you get into such a defensive, I mean, it's right into the name of what you do, position, because they've gone first and they've laid this all out and then you go, and then you try to poke holes in their balloon.
But I think, I could be wrong, I mean, the NFGs were getting back there and the crew telling me I'm not. I think there is a lot to be said about changing the conversation and just getting out of that bucket altogether, right? You're not going to get in it in the first place. You ain't getting dirty by it. There might be some splatter, but not as much as you're actually in the bucket. So that's what I got to say about how to use H2H in criminal cases, it's pretty much the same thing. What are the principles that underlie your case that you can connect with the jury? Because the jury is not going to connect with criminals, so you have to get out of that. They're going to connect with innocent people or people who've been wrongly accused or people who didn't do as bad of things as they've been said that they have done. That's where the win is going to be in your cases.
Let me know how I did and I'll talk to you next week.
Simon says, stop working so hard. Simon says, book yourself a vacation. Simon says, listen to Sari. I am thrilled to once again invite y'all to join us in the H2H Playground. Come and be a part of the only online working group where plaintiff attorneys learn and practice proven trial skills in a safe place while having fun. Simon says, become the lawyer you were born to be. Visit sariswears.com/play and join the waitlist. Ready, set, go. Wait, I didn't say Simon says. Just checking to see if you're paying attention, but for real, go to sariswears.com/play now.
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