In this episode, I’m serving up a reality check on a habit many of you are fucking guilty of.
And that is… Drumroll please… 🥁
Trying the other side's case without even realizing it. (#lightbulbmoment💡)
Grab your coffee, tune into this episode, and let's turn the tables in your favor.
EPISODE 235 TRANSCRIPTION
Welcome, welcome. We are back with another episode. Are you trying the other side's case? Here's how to know. Before we get started. I don't know if I ever called out this review. If I did, I apologize, but it's such a great one that I wanted to make sure that I called it out, and it's from Kim F., it's on the Trial Guide's website.
"'Great Information for Criminal Defense Attorneys As Well'
While this book is written for the personal injury attorney, I'm a criminal defense attorney and used a lot of the information to inform how I structured my last voir dire in a very serious criminal case. I think it helped me pick the winning jurors for the case."
- Kim F.
Kim, I am so glad that it made sense In terms of criminal defense, we have a handful of criminal defense attorneys back in the crew who are echoing what your thoughts are, finding it very helpful, and I'm so glad that it was helpful.
All righty. Well, today, this has been coming up a lot, even though I haven't been podcasting in the last two months, this has been coming up a lot now that I'm back podcasting this January. I was saving to talk to you about, I'm finding more and more often that you all are trying the other side's case but it's getting in there in a sneaky way. Now, I know I had a podcast episode titled, "The Sneaky Ways Defense Points Show Up In Your Funnels".
But in that podcast I talked about how when you're creating funnels, and if you don't know what a funnel is, it is basically the metaphor that we're using. We actually use an actual picture of a funnel when we're playing with them, but it's the metaphor of we start big with experiential questions and we get down to a principle. Oftentimes, or all the time I should say, I will tell clients we never funnel a defense point. We never want the jury to give us a principle, because in my method the juries always give us the principles, not the other way around. We never want the jury to give us something that is defense-oriented, even if it's to say something against the defense. We just don't want to be playing in that realm at all.
We want all of our principles to be firmly planted in plaintiff territory.
You can go back and listen to that one where I discuss that in more depth, I'm going to bring a little bit of that back today, but now I'm seeing this come through in terms of opening statements as well. Now, before I tell you how this is all happening and whether to know it's happening in your case, because here's the thing...
I don't think you know it's happening because you are so conditioned to think in this way that I'm going to talk about today, that you don't see it anymore.
So I'm going to give you one simple way to know, but I'm going to give you a bunch of examples before we get there of what I'm trying to get at.
So why is this important? That's what I'm talk about before we talk about how to know whether or not you're doing it. Three things. There's probably more, but here are the three that I really want to highlight.
The first one is, jurors have no information.
Now if you're like, "What the heck does that have to do with trying the other side's case?" Here's why this is important.
Anything that you say, they're going to take it and they're going to run with it. Anything. Because they know they're there to do a job and they don't know what that job is or how to do it, which creates the very hostages, which my book is based on.
It creates a brain attack because they don't know why they're there, they don't know how to do it, they don't have any certainty, they don't have any status, they don't have any autonomy, all of the things, and so their brain is under attack. So the minute that any information shows up, they're going to take it and start trying to file it away in their brain so that they can create some safety for themselves. It's literally what their brain is trained to do.
It's kind of like if you have a bunch of people who are starving and you bring out a plastic pork chop, they're not going to know it's not a real pork chop because they're starving and they're just going to go for it, because it's food. That's what they think, it's food. So knowing that the jurors' brains are in attack mode, and that they are in fight-or-flight, and that any little piece of information, they're going to take and gobble up. We better damn well not be trying the other side's case because that's not going to go well for us. So that's the first one, why this is so important that you get what I'm saying today.
The second reason is, you go first.
In most jurisdictions. There's some weird-ass jurisdictions out there where you don't, but if you're a plaintiff attorney, in most jurisdictions in the United States of America, you go first.
This is a huge advantage. It is also a huge disadvantage if you don't take an opportunity to use this to your advantage. So, whatever you talk about, especially the very first thing you say, that's what the case is about. Boom, the end. So if your hook, and I'm going to give you an example today, meaning the first thing out of your mouth in your opening statement, is defense-oriented, that means that's what the case is about, right there and then.
And that leads us to the third thing, which is first impressions are everything.
We've heard that all the time in a variety of scenarios in life. You never have a second chance to make a first impression, blah, blah, blah. The reason why that's so important is that first impressions are hard to undo and sometimes completely impossible to undo. Because of the jury being in this state where their brains are like, "Oh my God, I don't know why I'm here. I don't know what to do," they're just looking for anything, any kind of guidance because their brains are so primed, more than other brains really in other situations. It's a very unique situation.
And if you come out and you say something defense-oriented, and that's their first impression and they're absolutely wanting information, we are either going to have an incredible uphill battle to try to turn that around and/or we won't be able to. So that is why it is so important that you are not inadvertently trying the other side's case.
Now, let me define for you what I mean by trying the other side's case, because I'm not sure that we all agree on what that is. Here's how I see it. For example, let's say we're sitting in a trial consult with you and me, and I will ask, "Okay, so what happened?" So you'll say, "X happened," and I'll say, "Well, why did that happen?" And you'll say, "It happened because of Y," X and Y. And then I'll say, "Well, what do they say happened?" And you'll say, "Well, they say this." And then we'll get to trial. Well, we won't because I won't let you do this, but for most people, you'll go to trial and then you will defend what they say happened, instead of starting where we began, which is it happened because of Y.
Let me say that again, X happened. We say it happened because of Y. They say Z is why it happened. And we go to trial trying to defend or tell the juries why Z is wrong, when we should be focusing on why. Why is where it's at. That is what our case is about. But most of you go in trying to prove to the jury why they're wrong about Z. Who gives a fuck about Z? Now I know you're like, "I need to give a fuck about Z." And yes you do, and I'm going to get to that in just a minute.
But my point is, and this is the big, big thing I want you to get from this podcast episode.
Whatever you spend time on, you make important. Whatever you say first, you make important. Whatever the jurors hear first, they make important.
So yes, we are going to have to deal with their stupid bullshit Z reason of why this happened, but that is not what we are going to hang our hat on. We're going to consistently come back to X happened because of Y. Now they're going to try to tell you it's Z, we're going to deal with that later, but it happened because of Y. It happened because of Y. It happened because of Y.
Let me give you some examples. And again, there is nuance for sure, because oftentimes the way you put your cases together, is you are defending the defense. That's part of it, you have to undermine their defenses. That's why David Ball calls it that in his opening statement template, and I call it the challenges section. It's like, here's what they're saying basically, but here's why this is a problem. So, real-world example from H2H.
We have a case where a dog, and I'm not going to give you details because it's an active case, but a dog attacked someone. So that's me asking what happened. Dog attacked someone. And so then I'll say, "Why?" Which again, when I ask why, that should be your Y in terms of our little algebra equation here. X happened and next I want to fill in the Y. Why, why did it happen? Well, because an aggressive dog was not securely kept away from people. All right. Now, what do they say about this? What's their Z? Well, they say they had an invisible fence, invisible collar, that whole thing around a dog.
So, when this person came in to play with this in the membership, and I did ask permission to talk about this before, that's why I'm not giving you details about who it is or where this is being tried or any other details, the hook right out of their mouth had to do with invisible fences. And it kept hitting me wrong... Because by the way, I don't actually ask when they come into the membership, "What happened and what are they saying and what are you saying," I just say, "Okay, go. Opening," so I can kind of hear it like a jury would hear it. And the first thing this attorney said was something about invisible fences, so immediately I'm thinking the case is about invisible dog fences.
Now as we learn about the case, we start coaching, I recognize that's not what the case is about, that's what they're saying it's about. They're saying, "Look, we did secure him, this dog, but we used an invisible fence." This is the trap that I see you all get caught up in is, that they will say it's about Z and we will jump in trying to tell the jury why Z is not the thing. And by doing that we make Z important. Just by the very fact that we put it front and center in our opening, that we spend the most time on it, all of the things.
So when we really looked at it, I said, "Okay, this case is about an aggressive dog that wasn't securely kept away from people." Yes, that's what the case is about. Then that's what the first thing we need to say. "Dog owners must keep their pets away from the public. This is particularly true if they have shown aggression in the past," or something like that. That's your hook. If that's the first thing that comes out of your mouth, jurors know that that's what the case is about. Someone didn't do that.
But if the first thing out of our mouth is this is about electric dog fences, now we're debating on whether they're a good thing or they're a bad thing, if they work sometimes, and what if they don't work. And now we're in that phase that Rick Friedman says confusion, complexity and ambiguity. Those are tools of the defense. That's their job is to confuse things. Our job is not to jump in after that and confuse it some more, our job is to keep saying to the jury, "No, no, no, no, no, this is about Y. This is about Y. This is about Y. X happened because of Y. X happened because of Y."
They can be over there, stomping their feet, having their little tantrums about Z, we're not going to give that any extra attention, at least not on H2H we're not. And I know this is really hard for you to do because you've so been trained to go after their arguments and dismantle them, and yes, there is a place to do that and I'm going to talk about it when we get to the end. I'm not saying we ignore that altogether, but if you're putting it front and center that's a problem.
For example, take the Eric Penn case. Eric Penn, my gorgeous little friend in Texas who I adore, and he had that big Werner trucking case where he won like a bazillion dollars. And so in this case, what is X, meaning what happened? A passenger vehicle carrying a family of four lost control on an icy highway and slammed into a semi-truck. Now when I first heard that, I was like, "How the hell is this a case? The truck didn't lose control, the passenger car lost control. And a child died and another one was rendered a paraplegic, very sad case.
It all came down to the truck driver was going too fast. When you are on icy conditions and you are driving something that weighs, I don't remember, I should know this off the top of my head, but 18 tons, something like that, something huge, it's probably more than that, maybe I'm thinking 18 because a 18-wheeler, but you get my drift. You are driving something that heavy and that big that can cause that much destruction, you have to assume that on icy conditions other people may lose control. And that if they do lose control and you're going that fast, something really bad is going to happen. And that to prevent accidents, you got to slow the fuck down. Just because this person didn't lose control of his truck does not mean he couldn't have.
Now what did they want to say? Well, they wanted to say all kinds of things, but one of the things they wanted to say and what they kept bringing up is that it wasn't icy. It wasn't actually that icy, it wasn't that icy. I tell you right now, Eric would've lost if he made the whole case about arguing about whether or not it was icy. Now is that important to the case? Yes. Did he have to deal with it? Yes. But that wasn't his case, his case was the driver was going too fast. The end. That's the Y.
Let them jump up and down about Z, "Well, actually it wasn't that icy," and actually this and actually that and actually this. You've got to really reign in your need to go in after all those arguments and talk about how stupid they are because what you're doing is giving it attention.
Now, as I said, we do have to deal with Z at some point, the things that they're going to say. There are two places where we deal with that in voir dire and opening. In voir dire, we deal with that in the devil's advocate question. So we funnel down to our principle, which is let's say ... I don't think I had the funnel method back there when Eric came to play with me, but now looking back, one of our principles might've been when there are icy conditions, the safest option is for a semi-truck to slow to five to 10 miles per hour and pull over. I still remember that all these years later, that was the thing they had to do. Maybe that's our principle.
Now, we may throw in a devil's advocate, going, "Yeah, but what if they are on a time limit and they really need to get where they're going. Yeah, but what if they're not sure it's icy, they're not really sure. I mean, they can't really see ice on the road," even though it's 30 degrees or whatever. We deal with that there in the devil's advocate question. Because if you remember, back when we talked about the sneaky way that these defense points get in the funnel, there's two ways that we can know that, and I'm going to show you in a minute what that is, but that's where we deal with those things. We never legitimize in voir dire anywhere else a defense point. We never talk about it, look at it, make it sound like it's reasonable, and then tear it apart. No, it's always unreasonable. Nearly always. I mean, probably there's always an exception.
So, we use the different tone of voice. We're like, "Yeah, but what if they're like in a hurry? Yeah, but what if they're like carrying ice cream?" Whatever. And the jurors fix all your problems. I'm telling you the devil's advocate question is just like my favorite thing ever. I have a whole podcast on that, go listen to that if you want to listen to that.
The second place that we deal with it is in that section that I call the challenges section. David Ball calls it undermining the defenses, and that's where we say, "All right, but before we came to trial," or, "One of the things we had to look at," or however you want to set that up or put in context, which is what my dear friend, Keith Mitnick does. However you've set that up, the point is in that section we're saying, "How do we know it was icy that night?" Or, "Did they really need to do X, Y, Z?"
Here's the thing, first of all, we don't front load it. Why? Go back to what I started with. You get to go first and whatever comes out of your mouth first, you make important. So of course we're not going to put it at the beginning of our opening template. The challenges section comes smack about middle, toward the end in my opening template. So it's later, so that's going to help you, that's one way you're going to use it.
Two, it's going to be the shortest part of your whole opening. I mean, not whole opening, the hook is very short, it's like one sentence. But in terms of talking about causation, or the defendant's story, or all the things, it's short. Why? Again, if it's the longest part of your opening and you're spending all this time talking about it, you're saying, "Look, this is something you really need to consider," so we're going to spend all this time undermining ... You think that's what you're doing.
What you're doing is the opposite. Social science has my back here. Just by talking about it, in length of time you are saying, "This is important. Please consider that." Versus, "All right. Now before I end this thing, a couple of stupid things. When you talk about, you're so stupid ..." Now you're not going to say that. Nobody go try that, but that's the emotional energy of it. "How do we even know it was icy?" "Well, you're going to hear this, this, and this." "And how do we know," blah, blah, blah." "Well, you're going to hear this and this." Like, duh.
Now, the question then becomes, how do you know, because I started by saying most of you don't know if you're doing this or not, how do you know if you're doing this on accident, inadvertently, because you're so trained to cue into those defense points and go after them. Well, in the podcast where I talked about the sneaky way defense points get in your funnels, I talked about two words you can look for in terms of voir dire, and those two words are "can" and "even."
So for example, let's say a defense point in a brain injury case is, this person looks normal so they're not injured obviously. You oftentimes come up with principles that sound like, "People can look normal even if they have brain injuries." Notice the "can." It's like, "People can. That's a thing." It feels argumentative. Versus, "People with brain injuries often look normal." You notice how that's just neutral, there's no energetic argument there, it's just a fact. Or, "A TBI can be lifelong and debilitating, a lifelong debilitating injury," versus, "In many cases TBI's are lifelong." That "can," it just gives it this kind of argumentative energy. "A person can be injured, even if they're injured before in the same place." There's that "even." So you're going to look for those two words in voir dire to see if you're kind of getting defense-oriented in there and you're looking for the argumental energy.
In opening it's a little bit simpler. Ask yourself, are you focusing on what they should have done, versus, "Here's what they did and here's why that's wrong." That's it. Your case needs to focus on what they should have done. "Here's how to do this right. If you have an aggressive dog, you keep it away from people." Not, "You shouldn't use electric fences to keep dogs away from people." That may be true, but that's a defense point. So, are you focusing on what they should have done and then you're going to show how they didn't do it, are you focusing on talking about what they did and why that's wrong? Again, there's that argumentative energy.
I think that's where we really go wrong is we start getting personally invested about how right we are and how wrong they are and how are we going to argue about it, and then it becomes a who can argue better, versus who has the truth. The truth needs no defense. It doesn't need to be argumentative, it just needs to be stated. It just needs to be clearly communicated. We just need to show the jury it, and rest assured that they are going to trust what we say.
All right, hopefully that made sense. We'll talk soon. 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 Three 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.
3 pOWERFUL STRATEGIES TO HELP YOU READ A JUROR'S MIND
Let the Jury Solve Your Problems in 3 Easy Steps
Join me for a free training to understand what the jury is thinking so you have the confidence to trust them - and yourself - in the courtroom.
Use the H2H Funnel Method so that jurors tell YOU the principles of the case instead of you telling THEM.
Subscribe to the Podcast
Tune in weekly as Sari shares tips that will help you up your game at trial, connect with jurors, and build confidence in your abilities so that you’ll never worry about winning again.
Sign up for trial tips, mindset shifts, and whatever else is on Sari’s brilliant fucking mind.