The last thing you want in your funnel is a defense point.
But they can sneak in there very innocently.
In today’s episode of the FHTH Podcast, I’m going to address this issue so that you’re only funneling plaintiff points.
And, as a bonus, you’ll learn how to make sure your principles stand on their own.
Enjoy!
Sari
"Here's what I want you to think about. What would you say about issue X–whatever it may be in your case—if no one was arguing with you? That's the place I want you to come from. That's what I want you to ask yourself."
sari de la motte
EPISODE 227 TRANSCRIPTION
Well, hello everybody. We are opening soon in the crew, so make sure you get on the waitlist at sariswears.com/play. You definitely want to come and play in the H2H Playground.
All right, today we're talking about the sneaky way defense points show up in your funnels. And if you're like, "What the hell is a funnel?", then you've not yet gone to sariswears.com and taken our free course. Or you can go straight to, in case it's not on there, sariswears.com/training, because I know sometimes they change things when we're about to launch the H2H Playground. And there you'll find a 16-minute video that will walk you through what a funnel is. It is a way for you to get the jury to give you the principles in your case rather than the other way around, which is what we normally do, right? Even if we're talking about principals, which we normally aren't. But we're saying things and then asking whether a jury believes it or doesn't. And all the social science will tell us that that is no way to motivate a group to do anything. There's no personal investment in that.
So what the funnel does is it helps you, our whole voir dire process I should say, helps you identify what your principles are. And then once you have your principles, you put it at the bottom of a funnel. And the meaning of the funnel is we start with bigger questions at the beginning. We funnel down by asking a series of questions until finally the juror gives us the principle.
Now, one of the things that we say in the funneling process is that you never wanted to funnel a defense point, meaning we never want to get the jury to tell us something that a defense-oriented juror would say or the defense would say and then somehow go, "And that's wrong," right? We always want to funnel only plaintiff points. And I think most of you understand that.
But here is the issue, is that they're still getting in there. I've been noticing this with the crew in the Playground is that we're getting what I call these kind of defense oriented or tinge funnels where they're not so easy to play with. And when I started looking at why, why are we having so much trouble trying to create this funnel, I realized that what we were doing is funneling a defense point, at least kind of somewhat energetically.
Now, here's why this is so important. What we focus on, we make important. So the reason why I'm doing today's podcast is I want to be really, really careful to not instruct you, or to inadvertently instruct you I should say, to follow our voir dire process and then you end up with a defense oriented funnel. What do I mean by that? Well, in our process, what we have you do is we have you start with your fears list, right? What are all the things that are problems in your case?
Now, most of those things are things the defense are going to say, right? Preexisting conditions, brain injury should have healed by now, car didn't have that much damage. All the things we see in plaintiff cases all the time, plus whatever else your other fears are. But you have this big long fears list, and then we say, go with every fear and ask yourself a particular question. And here's the question, what would a juror have to believe our ideal juror, the one that we create in our mind, for this no longer to be a fear for us? It negates or nullifies that fear. Meaning if this flew out of their mouth, I'd be like, "All right, that's a good juror for me."
Now, in that process, I think that there is a way that the defense tentacles still kind of are touching our plaintiff principle, and you'll be like, "What the fuck are you trying to say, Sari? Just get to the point." Okay, I'm going to get to the point. So here's an example. So let's say in your case, a defense point is this person looks normal so they don't have a brain injury. Maybe that's even a defense point because normally they don't have enough balls to come out and say that, but they're going to hint, they're going to suggest all the things, right? If anything, your jurors are going to maybe think that when they see a brain injured person and they look normal, and so it's just on your fears list, for example. And it of course helps the defense if the jurors believe this.
So what I've seen happen is when you're trying to come up with the principle, you are doing things like, "People can look normal if they have a brain injury." Now, I want to draw your attention to the specific word there. It's "can." Just notice the energetic tinge there. It has a slight tinge of argument, and that's what I really want you to draw your attention to in this podcast. Are your principles attempting to argue with a defense point? Because the minute that we have a principle that is argumentative, what we've done is energetically given juice to the defense point.
Here's what I mean. Again, going back to the principle of what we focus on, we make important. One of the reasons why we don't want to spend, for example, in our opening a big long time on the challenges section, or as David Ball calls it, the undermining the defenses section, is if that is our longest, biggest section, we have now told the jury just by how long that section is that that is really important and that they should spend a lot of time thinking about the things that defense is going to tell them, right? We've inadvertently said, "Look here. This is so important." We took all this time in the opening to talk about why it's not true. It does the opposite for us, just the way our brains are wired. The more time we spend on something, the more tension we give something, the more we think is important. That's just across the board. Look up brain science. It backs me up on this.
So the minute that we have a principle that sounds argumentative, we are inviting this kind of like two magnets, this pole of I'm arguing with something, meaning I'm legitimizing this thing by arguing with it, right? I know we don't want this to be true. Those of us who argue with people on Facebook who are stupid idiots. But it's true, and I have to listen to Kevin and just stop doing that because I'm not going to change anybody's mind. But I legitimize inadvertently the stupid ass awful arguments that I see on Facebook by engaging with them. Why? I'm saying, "This is worth my time. This is worth my intellect." And it's not. Same thing goes here.
So you have to look, as you're creating your plaintiff principles, are they firmly able to stand on their own or are they coming from an argumentative place? Because if they're coming from an argumentative place, then it is giving, even if it's just a little, that's too much, it's giving credence to the defense point in the first place. For example, one of the ones I hear all the time in brain injury cases are, "Brain injuries are real." Like, yeah. Well, who the fuck's saying they're not? "Oh, the defense in this case," right? It sounds argument. It sounds like a five-year-old. That's not a true plaintiff principle.
So for example, in this one, "The person looks normal," people can look normal, they have a brain injury. No. Right? That's kind of the sense I'm getting, and I would rewrite that to, "People with brain injuries often look normal." Notice how that just stands on its own. There isn't a hint of, I'm not arguing with anyone. I have merely made a statement that literally no one could argue with no one. No one. Nobody could argue with that. "People with brain injuries often look normal." Notice just that little word "can" and the phrasing made it sound argumentative.
Here's another example. So let's stay on brain injuries. Let's say defense point is, "Most brain injuries resolve," right? So that's what they're going to say, and the fact that the plaintiff is saying this one hasn't and she's malingering all the things, right? So you might be tempted to create a principle that says, "A TBI can be a lifelong debilitating injury." Notice the word "can" again. It's kind of an energetic word of argument. "It can be lifelong." It has this tinge of, "I'm trying to argue or make a point" where a true plaintiff principle... Again, I've said this to you many, many times. You stand on the side of the right. You do not need to argue your point. You do not need to persuade. You do not need to influence. There are things that you need to do. Listen next week when I talk about why the jury isn't properly outraged. There are things you can do to motivate them to act, but your plan of principles standalone because they're true and they're amazing. They do not need to be simply an argument to what the defense is saying.
Yes, in the H2H voir dire method we have, you start there to get you thinking, right? "Here's what they're going to say. Here's what our perfect juror would say." But you have more work to do than just plucking those out of your, what we call ideal juror profile and saying, "Here's my new principle." You have to go through this extra step, which yes, I've just discovered we need, so sorry. But I'm going to tell you when I discovered the things, you have to go through this extra step to make sure it's not an argumentative principle, that it can stand on its own.
Here's another one. Defense point might be, "This is due," whatever you're talking about, "to preexisting injury," whatever it might be in your case, right? That's what they're going to point out. That's what they're going to talk about. So you might be tempted to write a plaintiff principle or an answer to that is, "A person can be injured again even if they were injured before or in the same place." Okay, now we have two energetic words in there. Can you identify them? Shout them out at me even though I'm not here listening, but I am. I'm listening. Really. If you're in the car, just shout them out. What are the two words?
You're so right. You are so smart. The first one is can, and the second one is even. Listen to it, "A person can be injured again even if they were injured before in the same place." If you try to read something snarky and it works, that's kind of a clue to you that it's got too much of an argumentative edge. So I might rewrite it this way. This isn't great. This was the last thing I wrote before I came and podcasted. If I thought about this more, I would do a better one, but here's the basic gist. "If someone has been injured years ago, the damage is often greater when they're injured again," right? I'm not arguing. I'm just saying, "Listen. Yeah, if somebody was injured years ago and you injure that spot again, it could even be even worse." Not argumentative. I'm standing on the truth.
Here's what I want you to think about. What would you say about issue X, whatever it may be in your case, if no one was arguing with you? That's what the place I want you to come from. That's what I want you to ask yourself, right? What would I say about brain injuries if I wasn't trying to create an opposing argument to what they're going to say? That's the space you need to get out of. We start there with H2H, what your method, yes. But then you got to kind of shake off all that argumentative energy around it and just create a principle that stands on its own. It's the thing. It's argumental... No, what's the word? Argumental. You know when you say a word and it doesn't look like it's the right word? Anyways, I'm reading that, argumental energy. That's what we're looking for. That's the sneaky way a defense point can end up either in a funnel or tinging the funnel. And we want to have clear, foundational, strong plaintiff principles that stand on their own. I hope that's helpful. Talk to you next week.
If you're looking to master your craft and win at trial, I created an intensive training just for you at a special all-day event where you'll learn how to find the jurors who will solve your problems and help you win without resorting to gimmicks or manipulation. Join me live if you want to level up with your voir dire skills. Go sign up at sariswears.com/vd. I know you have a million things on your plate so do it now. You'll thank me later, I swear.
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