Episode #242 – Why You Have to Make the Jury Uncomfortable

Are you ready to shake things up? 

Good, because that's exactly what we're about to do. 

In our latest episode, we're diving deep into the nitty-gritty as to why you HAVE to make the jury uncomfortable in voir dire or in your opening statement (and YES, it will make YOU feel uncomfortable, too, but that’s the point.) 

I'll teach you how to captivate, motivate, and inspire action from the jury through the power of storytelling and more.

So if you're tired of playing small and ready to make a real impact, this episode is for you.

Xo,
Sari

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"Your job in a trial situation is to communicate to the jury that everything is not fine. We are trying to communicate to the jury that things are not fine because discomfort changes things. You’ve got to relay that things are NOT fine; things are fucked, and your job, jury, is to make that right. So what this means is you've got to make the jury uncomfortable."

sari de la motte

EPISODE 242 TRANSCRIPTION

Well welcome everyone. We're talking today about why you have to make the jury uncomfortable. Last week we had our Trial Lab. Well, it'll be several weeks now that now I'm recording ahead of time. But Trial Lab, for those of you who don't know what that is, it's a four-day event here in Portland and the first day you come and with two other people and we play with your content. So if we're doing voir dire, we're working up your funnels. If we're working on opening, of course we're using the template. And then the second day we are doing a lot of activities for the delivery part of it. Expanding your range, practicing resonant conversations, learning how to talk about money in voir dire. On day three, you go in front of a mock jury in the morning and then in the afternoon, we debrief the video. On day four, you have a second chance in front of a different mock jury, we come back, we debrief, and you are on your way.

It is a transformative experience. I only do it three times a year. I do four times a year but one time is reserved for my Mastermind clients. And so that is nine seats a year. By the way, if you want to go and apply for Trial Lab, you have to apply and go through an interview and that is sariswears.com/trial-lab. That said, at Trial Lab, a variety of things came up as they do when we're playing with the jury. So I wanted to podcasts on one of them today. And to give you a little background, this was a case in which the plaintiff had a very bad burn due to an explosion. So when the attorney was doing their opening statement, I noticed the first time that they just mentioned that the plaintiff had a burn and didn't talk through what that meant. The pain, the scraping of the skin, the skin grafts, all of the things.

So when we did it this time, we had a second mock jury the same day. We've changed that. And I said to this person, I said, "Well, I want to hear more about the injury with the second jury." And so the second jury, we got a little bit more but not as much as I had hoped. So as we were debriefing in front of the jury, and that's where I get the verbal feedback from the jurors about what they thought about the voir dire or the opening statement, the attorney in this case said, "Well, I just didn't want to make you," meaning the jury, "uncomfortable. That's why I didn't bring it up." And here's what I want to say about that.

You must make the jury uncomfortable.

That is your job. And that is because discomfort changes things. That is literally how we get anything made or done in the world.

We would all stay in bed, most of us at least, until forever because it's cozy and nice. But the discomfort of not having money to pay your rent, or money to buy food is what often gets us out of bed. Think about beds. The fact that we were laying, or not still laying on straw or whatever else they used to use means that somebody at one point was uncomfortable enough to say, "Fuck this shit and let's actually make a mattress that's comfortable." Same thing with pillows or anything else. Now the airline industry has got it backwards because now they're getting more uncomfortable. But I digress. I hate traveling. I love being different places, but I hate traveling.

So discomfort changes things. Now if you think about this, your job as a trial attorney, is to motivate. You don't even need to think about it because I say it all the time.

You have to motivate jurors to act.

And it is the easiest thing in the world for humans to leave things as they are because as humans, we'll do anything and everything to stay comfortable. That is our number one goal in life. We don't like a shirt because it's itchy, we throw it out. Don't like a bed because it's lumpy, we get a new one. Don't like a friend who is harshing our mellow, I know that's lame, we get rid of them. We'll do anything to stay in comfort. Even sometimes, putting up with said things by telling ourselves it's more comfortable to stay friends than deal with the discomfort of conflict. So we are wired to stay comfortable.

I mean, think about how this works in trial, for example, defensive attribution. That's when we hear something that happened to the plaintiff and we think to ourselves, "Well, I would never have done that. I would never have gone over there. I would've asked for the safety piece. I would've gotten a second opinion," all the things that none of us probably would've done, but we tell ourselves that so we can stay safe and comfortable in our own brains.

Think about why we don't have brain injured patients. For example, plaintiffs testify in many cases because they look normal, they don't look brain injured. And so we are so worried that the jury is going to think they're fine. We are fine. He's fine. Everything's fine. It's like that meme with the dog wearing the hat, sitting at a table, and he's got the mug of coffee, meanwhile everything is on fire around him. And he's like, "I'm fine, everything's fine." That's how we want to be in the world. We want to be comfortable even when things aren't comfortable. We want to at least have this idea that they are or they could be.

So your job in a trial situation is to communicate to the jury that everything is not fine. I mean, that's why we keep the brain injured plaintiff out of the courtroom many times. We are trying to communicate to the jury that things are not fine because again, discomfort changes things. Things are not fine, things are fucked, and your job, jury, is to make that right. So what this means is you've got to make the jury uncomfortable.

Now, where I see you skipping this step, is first off, when talking about what happened, especially if it's particularly heinous or awful... that is where you need to be more so, not less so, willing to talk about it. I think about the case that Randy McGinn's office did with Riley, the teenage boy who, because the semi-truck didn't look and didn't have the side under guard rails, came over into Riley's lane, trapped Riley's car under the semi-truck, dragged it for a mile, then finally stopped and Riley's car burst into flames and he was burned to death.

Now, in that case, when I was working with one of Randy's associates, I said, "You got to walk us through that, as horrible as that is." And that's exactly what he did. He started with one of the first things Riley would've smelled is burning plastic. And one of the first things Riley would've felt is et cetera, et cetera. And as awful as that was for jury to hear, he had to walk them through it. He had to make them uncomfortable because that is what it takes to motivate people to act.

Now, obviously, if you do not have something that egregious, you do not want to overplay your hand. That is when the jury does get mad at you and is upset with you for making a bigger deal out of it. But whatever the injury is, you've got to walk the jury through it. You've got to be willing to do that.

The other place where this really plays out is in storytelling.

So I was just teaching today in our Presentation Skills Coaching session that we have in the H2H Playground, and we have three people who take hot seats and I work with each one of them. We've got an audience there that are watching and learning. And I said, "Half-ass storytelling is worse than no storytelling at all." Meaning when you are "kinda" doing it and you're "a little bit" trying it on, that doesn't work. I mean, one of the things that people are so amazed by when they come out and play with me with the juries in Trial Lab is, I tell them ahead of time, the jury notices everything, and they do. They notice absolutely every last thing. For example, in the last Trial Lab, one of our attorneys was making a list of things that jurors were saying, ran out room, and then put the last thing that was said up at the top.

And the jurors noticed that and wondered if the reason they put it at the top was not because they ran out of space, but because it was more important than the other things. This is where their brain goes. They notice when you're fiddling with your wedding ring. They notice if you broke a pen that you were holding, which happened in this last Trial Lab. They notice every damn thing. And I know that because of that many of you think, "Well, that's exactly it, Sari. They notice everything, and I don't want to piss them off by being too dramatic, or talking about things that are too gross, or all the other things." Here's what I need you to understand is that the biggest thing that they're looking for, not just even noticing, is are you for real? That's what they want to know. You go half in on storytelling, that's going to feel like a gimmick, that's going to feel like I'm doing the least amount possible and crossing my fingers that I get a great result.

But when you go all in on storytelling, for example, or telling what happened and the injury and all the aftermath, what happens is, they don't notice. And what I mean by that is they are so in the story with you. I've literally seen jurors at the edge of their seat that they don't have time to be thinking, "Oh, well, this person's being too dramatic," or, "This is so gross. Why are they saying this?" They are so with you. They forget that you're doing "anything." That's what real storytelling does. It transports them there. So there's no room for thinking about whether you're being too gimmicky or too dramatic or any of the things. When you go all in, you take the jury with you on what this work is, on very uncomfortable journeys because that's what it is.

That's why we do this in voir dire.

We talk about the job of a juror. We talk about how they're going to hear some uncomfortable things, or look at uncomfortable pictures, or have to discuss what a loss is worth. We talk to them about this beforehand so that when it comes to the time in opening, they're prepared, we're not springing it on them. And they know they're part of something bigger. Now, as Jesse Wilson of Tell The Winning Story always says, particularly in his Victim-to-Victor program that he has, is that we don't want to tell this horrible story about this awful plaintiff who had this awful thing happen. And now they're total sad sack, their whole life is ruined, and there's no hope. As you've heard me say before, jurors are like anybody else, they want bang for their buck. So they don't want to allow money in a verdict for someone or some family that is only just going to take it and still be sad and do nothing with it.

So we definitely want to tell and that's why we have that after the causation story in my template about who the plaintiff is, how they are doing everything in their power to come back from this injury, or how the family is working its way toward some version of normal so that they can memorialize this person and make this person's life mean something. So I don't mean to give the impression that we want the jurors to be sad or horrified. We do in the moment but we also want to end that on a positive note. Here's the thing I will say, going back to talking about the injury.

If you are skipping over the injury, my guess is not because you're worried that it will make the jurors uncomfortable. My guess is it's because it makes you uncomfortable. And if you are uncomfortable with talking about the jury and you're scared to talk about it, the jurors will be scared to talk about it.

And that is quite literally their job. They need to go back there, they need to talk about it. They need to be open and honest about it, all of it. And if you can't do that first, we cannot require that the jurors do that later. So yes, it will make the jurors uncomfortable. And yes, you're going to have to make them uncomfortable. That is the part and the job of a jury. They have to go through that journey with you.

When you first got the case there were some just terrible things you had to learn. And unfortunately, the jury's going to have to do that too. And that's again why we designed that in voir dire whenever we can. But don't skip over that part. It's so, so important because discomfort changes things. 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.