FHTH Ep 239 - How to Combat the “Shit Happens” Defense

In this episode, we're diving deep into plaintiff trial strategies that'll encourage you to rethink how you present your case.

I'll teach you what frontloading the danger means, and the importance of the order in which you present information to jurors that can make or break your case.

Xo,
Sari

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"Stop telling the jurors what happened, then pointing out all the things the defendant did wrong and all the ways this can have been avoided, because it's too fucking late. Instead, if you want to reverse this 'shit happens' defense, start by saying what the danger is, then how it can be avoided."
sari de la motte

EPISODE 239 TRANSCRIPTION

Well, hello everyone. So glad to be with you today. If my voice sounds odd, it's because I've been struggling with bronchitis since the day after Christmas. Man, this stuff is hanging on. So apologies in advance.

Today we are talking about how to combat the "shit happens" defense. But before we do that, I wanted to read something, not a review. Although if you're listening to this and you recognize this, you can definitely go and post it as a review. But somebody sent me this via Facebook Messenger and they said, and I just love this, "You are my hero. Listening to your podcast has taken me from terrified of trying my first jury trial against a huge law firm and defendant to thrilled. Thank you for what you do." Well, thank you for listening. I so appreciate all of my listeners, and let's get into it.

So if you're a plaintiff trial lawyer, you know that the big fear, one of the many big fears because there are many big fears that you have, is jurors thinking, "Well, shit happens. You can't litigate every damn thing."

Now, I said the title is, "The Shit Happens Defense", and I'm not suggesting that defense lawyers actually come out swinging with that defense. They don't. Of course, they hint and they hope and all of the things, but it is common enough that it got me thinking about how to combat this. And in fact, it came up fairly organically when I was in the crew the other day in the H2H Playground and I was working in our Presentation Skills call. And that's where people have a hot seat, they come in, they present part of their opening, and then they get coached by yours truly.

And if you are not in the Crew, why the hell not? We just dropped the price in January by 40%. We had a sale going on. Now if you missed that, we may, no promises, do it again in April, but get in there, my friends. Go to sariswears.com/play, P-L-A-Y. If you're interested, put your name on the wait list.

But I was coaching in there and it suddenly hit me that there is a very, very easy way to combat this "shit happens" thinking, and I wanted to share it with you today 'cause I think it's so important.

In life, to get us thinking about this, where do we usually say, "Well, shit happens"? If you think about it, we say that after the fact, meaning after something has happened, we say things like, "Well, what can you do? Shit happens." Do we ever say shit happens before something happens? Like before you go into surgery? Do you say to yourself or other people, "I hope it goes well, but you know what? Shit happens. Maybe I'll die on the table." No, we rarely ever say shit happens before something happens. And here's why. Because if it hasn't happened yet, it is preventable. Let me say that again. If it hasn't happened yet, it is preventable.

Now, if you're listening, I'm sure you're thinking, "Well duh." But okay, if it's well, duh, why are you presenting it as a fait accompli, i.e., this has already happened in your opening statements? Because if you're doing that and you are doing it, and I'm going to show you why today or prove it to you that you are doing it today,. If something has already happened, then there's nothing we can do about it. Enter in shit happens.

The way in which you present your material, your opening to jurors is absolutely affecting whether or not they are thinking, "Well, shit happens." And you can't litigate for every little thing. It has everything to do with the order in which you're doing it.

Now, think about how most of you put your opening together, and I'm thinking at the beginning of the opening. Let's forget the hook, or the rule, or any of that. After that part of your opening, most of you, this is what happened the other day in the Crew, although I don't know why, because I teach not to do this, but there it is. Most of you will launch then into the story of what happened. So here, let me tell you what happened in this case. And you talk about the thing that happened. And then when you are done, you say, "Here's why all of that is wrong. We are here because they shouldn't have done A, they shouldn't have done B, and they shouldn't have done C."

And that is the problem, first and foremost. You are presenting it as though it already did happen. And if it already did happen, then there's nothing we can do to prevent it, shit happens and you lose your case.

Now, I know you so well that I know what else you're thinking. You're thinking, "But it already did happen. Sorry, that's why we're here." No it didn't. Not to the jurors, it didn't. You forget so often that you know everything there is to know about your case. You could talk about it backwards, forwards, upside down and sideways. But jurors have never heard what happened here. And you have this amazing opportunity that as much as I love you, you consistently squander. It is probably the most amazing tool in your toolbox asset that you have. However, we want to talk about it. And you'll never get another opportunity like it. And here it is.

You go first in most jurisdictions, in 99% of jurisdictions.

There's some backwards places. I can't think of it right now. Where's Chris Finney from Kevin? Missouri? Do they do it backwards there? Do you know? I'm not sure. Chris, if you're listening, let me know. But there are some places that it's backwards and you don't have that advantage.

But for the majority of you, and if you don't know who Chris Finney is, he's like an amazing trial attorney from Missouri. That dude is kicking ass and taking names. And I can say I knew him well. But you go first. For example, in voir dire, I remember I was on a podcast and you've heard me talk about this, a guest on a podcast and they were telling me about really this victory story. They were trying to impress me, and they were saying, "One time in trial I started with 'My client is a Muslim and who here has a problem with Muslims?' And I got 13 people off for cause" 'cause this is the big trophy for y'all, how many people you got off for cause. Here at H2H, that is not the point of what we're trying to do in voir dire.

And so the podcast interviewer said, "Well, what do you think about that?" And I said, "Well, what I think about it is, if you come out and that is the first thing that you say, 'My client is a Muslim,' now you have made the case about that. The case is now about your client being a Muslim."

I mean, here's what you have to understand about jurors, yes, but also verbal information in general. Verbal information is the most difficult information for our brains to process. Our brains love to have things make sense. This is why, and the reason why I should say is because it's always scanning for danger. So if something doesn't make sense, if something's confusing, if we don't know what we're doing or why we're doing it, the brain's like actively on alert. Like, "Wait a minute, this isn't familiar," because the brain doesn't like unfamiliarity and it's always looking to keep you safe.

What the brain does is it tries to make connections and make those connections quickly. It tries to familiarize the situation so it can create safety for you. So think about voir dire for example, because we are very limited in what we can say in voir dire in terms of this brain connection piece. When you talk about something in voir dire, it's like adding an ingredient.

So the first question that comes out of your mouth is ingredient number one. So let's say your first ingredient is flour. Immediately the jurors are like, "Okay, so this case involves cooking or baking." That's what their brains are doing. And then your second question involves apples and they're like, "Oh, flour and apples, okay, this could be apple pie." And then your third question involves cinnamon. They're like, "Aha, yep, this is apple pie, this is apple pie." And then your fourth question has to do with motor oil. And they're like, "Huh? Wait a minute? What does motor oil have to do with apples and … " See, 'cause this is where their brains are going. And anytime that you introduce things, they are immediately trying to make connections and trying to familiarize the situation.

Now this applies to opening too, and this particularly applies when we're talking about this concept of the "shit happens" type of thinking that jurors get into. Here, you can give details unlike in voir dire where we don't get to talk about many details. So they're really just snatching at things and trying to put together a coherent narrative, which is why going back to voir dire, because I love talking about voir dire. When in voir dire, if you're not careful about how you are playing with the ingredients or ordering the ingredients, they can go down a completely different recipe. I'm taking this metaphor out of control. And by the time you figure out that that's where their brains are, it's much harder for them to come back from that.

But onto opening. Here you can give details, but now, what really matters is the order. I'm going to give you another terrible analogy, which I'm so good at doing. And here it is. Imagine that you're on vacation and you decide to go snorkeling. I've done this once and only once and there's a reason why I was terrified. I think Kevin and I were in Mexico when we did it. I can't remember. But let's say they hand you the masks and the flippers, and they take you to the place where you're going to see this amazing coral. You jump in the water, and a shark bites your leg off. And that never happened before in the history of this company.

Now imagine that they pull you out of the water and they're like, "Well, why weren't you wearing a shark proof suit?" I looked that up. There actually is, it's like $7,000, but they have sharp proof material. "Why didn't you bonk it on the head? There's this place that you can bonk it on the head and it'll let go of your leg." Or, "Why didn't you snorkel in this different area?" I think most of you'd be like, "That information would've been really helpful to me prior to me getting in the water." I mean, think about what jurors would think if this was an actual case. "Shit happens. You go into the ocean. There's sharks. And it never happened before. There's nothing that the company could do. Let them off the hook."

Okay. Now imagine that you're considering going snorkeling. You've heard about shark attacks. You're a little worried about it. So you go to the company and you say, "I'm a little worried about snorkeling because I've heard about sharks." And the company says, "Well, here's how we keep our people safe. First off, there's a special" I'm making this up "shark report that comes out every day that tells us where there've been shark sightings. And so we pick a particular safe area every day. And second, we provide these brand new shark proof suits for all of our clients. And third, we teach you what to do if you see a shark and how to get out of that situation alive." Again, I'm making it up, but the point is that when you teach first how to avoid the danger that happened, a very, very interesting thing happens to the juror's brain.

The way that we teach opening here at H2H is that when you are teaching or when you are doing your opening at all, you are telling, for example, the story in present tense. We're going to take the jurors back to that day, and once they're there, we're going to walk them through like it's happening now.

Now here's how we put it together. If you're driving, you might want to pull over and take notes. Please don't take notes while you are driving. In our opening, after the hook, which is the opening rule or impactful statement or whatever it is, we start by front loading the danger. If we're using our shark example, we can say, "Snorkeling can be dangerous due to sharks, because if a snorkelist comes in contact with a shark, a shark can rip off one of your limbs," whatever it may be.

If you are in a Med Mal case, you're going to front load your danger with something like, I'm thinking in an OB-GYN case, "Most babies are born healthy and most birth go just fine. But sometimes babies can get stuck in the birth canal, and if the doctors are not prepared for that and don't get the baby out in time, the baby could suffocate to death or be born with a traumatic brain injury." Whatever it is. "Snow happens. And when snow and ice are on the outside of a building, and a building owner doesn't do what they need to do to prevent that, people can slip, break their leg or their arm or whatever." We front load with the danger. We're like, "Here's the danger."

The next part we talk about is how we avoid that danger. We make it known that it is avoidable.

If you've been listening to me for a while, you know that I talk about in order to win any plaintiff case, you have to answer two questions in juror's minds for them to award damages in your case. One is, and this is the most important one, "How could this have been avoided?" If you cannot show that it could have been avoided, then you are not going to win your case. The end. You also need to show how money can help. That's a different topic for a different day.

So right from the top, we say, "This is an avoidable danger." And when you do not do that, you miss an opportunity because what you're doing from the beginning is not only highlighting in their brain, this is avoidable, it hasn't happened yet, but you are putting front and center one of the most important questions you need to answer. You answer it right off the bat. You don't leave them wondering what could have been done here by just launching into your story.

So, we start with frontloading the danger. We then tell the jury how doctors, snorkeling companies, drivers, store owners, whatever your case may be, avoid that danger. Here's these known things that they can do. And then we say, "Let me tell you what happened here."

Now this is everything, because if again, you start with the story, which most of you do, and yes, you have your opening rule, but that's not enough. You just go into your story, and then you talk about why or what they could have done to avoid what I just told you, that is the wrong order because jurors in their mind, even if it's not logical are thinking, "Well, yeah, but what can be done now? It already happened. Shit happens. Booya. There we are."

However, if you start with, "Here's this danger. Here is this known way to prevent the danger, and it's an easy way to prevent it. It's super easy to do," because it shouldn't be a complex, convoluted thing unless it is. And then you can be talking about training or all the other things. So I'm just saying, and if it's simple, make it simple. And then you say, "Now let me tell you what happened here." The jurors are going in that moment to be having the frame or the schema of this is avoidable. And then you walk through what the defendant did, and every time they make a choice in the story, which is how we train you to do it here in H2H, that didn't avail themselves of these very simple ways to avoid this danger. The jury is going to start blaming them immediately. Not to mention that jurors cannot properly judge conduct without context.

Again, y'all live with your cases by the time they go to trial for years sometimes. It's so familiar to you that you think that it makes perfect sense to jurors. So you launch into your story and assume that they will just know that that behavior was wrong. And that's particularly something that won't happen when it's something that they should have done and didn't do. So now there's the absence of an action. Jurors can't even begin to guess at what that might be, which is the majority of your cases. It's not, "Here's all the things they did wrong." Most of your cases are, "Here's all the things they didn't do." So how on earth can your jurors think about the things they should have done when you've never fucking told them? And again, you're going to say, "Well, I'm going to tell them." That's too late. That's why they think shit happens.

The other reason why we talk about teaching before story is because it keeps your story clean. So often I will hear what y'all tell me is a story, and I'm like, "This doesn't fucking sound like a story," 'cause you're like, "Let me take you back to the day. We are at this location and we're using this X, Y, Z thing. Oh, let me tell you what this X, Y, Z thing is. For those of you who don't know what an X, Y, Z thing is, X, Y, Zs are used in A, B, C situations, and here's why, and here's how they're used."

If you have that in teaching, you don't need to stop your story and tell the jury what that means. But if you don't have a teaching section first, you have to keep stopping yourself to define terms and talk about things that the jury needs to know. And your story is no longer a story. It's just a big fucking mess that nobody can follow. So there's an additional thing.

Now, I know if you're listening to this, you're thinking, "Yeah, but David Ball says we don't have credibility to teach in an opening statement." Here's what I have to say about that. I agree. If you do not do an H2H voir dire. An H2H voir dire … I don't totally agree. That's not completely true. An H2H voir dire is one in which we get the jury to solve our problems for us, meaning we conduct it in such a way that the jury is telling us the things we know are happening are going to be said in opening.

So instead of us saying it to them and opening as the first time they've ever heard it, they're actually educating us. "What do you think a company should do if there's safety rules that will help save lives?" "Well, I think they should use them." "Well, what's important about that?" "Well, if they know how to prevent a danger, then they should use those rules." Right? They're saying that ahead of time so that when you get to opening, it's not you saying it. It's them saying it.

But I also think even those of you who don't have voir dire that you do have … I don't think credibility is the issue honestly. I really don't think. I'm going to reverse myself and say I don't agree with this at all, because credibility is teaching. That's how you get credibility, especially if what you're saying both sides would agree with to bring in Rick Friedman. It has to be something that the other side wouldn't argue with. It has to be such a, "Duh, of course they do it that way. Duh, of course that makes sense." And all you're doing is equipping the jurors to do their job. And what I have found is that most jurors, all jurors respect that and are thankful for that.

To reiterate, stop telling the jurors what happened, and then after the fact pointing out all the things the defendant did wrong and all the ways this can have been avoided because it's too fucking late. Instead, if you want to reverse this "shit happens" defense, start by saying what the danger is, how it can be avoided. Not just this company, how any doctor can avoid perforating a bowel, how any company can avoid people slipping on the sidewalk. Make it all the way, any company, any doctor, and how that could be avoided. And then let me tell you what happened here.

The order is so important because just putting it first makes jurors feel as though it hasn't happened yet. And then if you tell that story in present tense, they are seeing it literally unfold in front of them, and they are screaming internally at why the people didn't do the things you just said could have prevented this. That is how we prevent the "shit happens" defense, at least the shit happens thinking in the juror's mind.

Hope that's helpful. Talk soon.

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.