Episode #247 – Which Method Really “Works”? Here’s How to Tell

Have you ever researched jury selection methods?

Well I did. And it is slim fucking pickings. Turns out, predicting verdicts based on juror characteristics is about as reliable as a coin toss.

What method really “WORKS”? Long story short.. YOU! 

This episode is for you if you want to learn the 7 crucial questions to ask yourself when choosing a method. 

If your method hits all these marks, you're golden. But if it's just smoke and mirrors, it's time to toss it.

Bottom line: No matter the method, the real magic is YOU. 

So go on, be brilliant, and own that courtroom.

Tune in on the episode to find out what I mean by that.

Xo,

Sari

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Here's what I know for sure works, you. You work. No method will ever replace the brilliance that is you. That's what I know for sure works. I don't create magic in my studio by myself. The magic happens when I'm working with one of you or one of my crew members. They bring the brilliance. I just help them step into it. That's what I do.”

sari de la motte

episode 247 transcript

Well, hello, hello, hello. We're talking about which method really works and how to tell. So today's episode comes to you because in the last couple of months I heard from someone in the H2H crew who wanted to do an H2H voir dire, and was shot down by co-counsel who said, "No, we're going to do exclusionary voir dire because it's worked for 40 years." So I wondered if that was actually true. So I started looking at research and I looked at a lot of research and granted, I didn't look at all of the research, nor did I find a lot of really truly up-to-date research, which I thought was interesting in itself. But what I did find was very interesting. First off, most research on jury selection has focused on criminal cases and as we know, criminal cases have a whole other set of variables than plaintiff cases.

Second, most jury selection research is done about the jurors themselves, meaning how does a juror's characteristics play out in terms of verdicts? There hasn't been a lot, if any research done on specific types of jury selection, at least not that I could find, and I know that you all will send it to me and that'll be great. I will love to have that. So please send it to me if you in fact have it. But I did find some very interesting things and I want to take what I found and talk to you a little bit about how to know what actually works. Because what I see all the time with all of you is that you want to find what "works." You want to do what works. And the reason that you want to do what works is because you want to win and you want to do right by your clients and you want that eight figure verdict and all of the other things.

So today we're going to break this all down and talk about what actually works. All right. So I found this one study, and again, as I said, most of them talk about juror biases and characteristics, and I thought this was very interesting. It says, "Juror biases, intuition and courtroom folklore suggest that jurors personal characteristics might predispose them towards certain verdicts. Attorneys attempt to detect these predispositions during jury selection proceedings traditionally relying on hunches and stereotypic rules of thumb. In recent years, some defense lawyers have hired social scientists to conduct "scientific jury selection," which usually involves a survey of community knowledge and attitudes regarding the issues in dispute, occasionally supplemented by clinical observation of potential jurors under questioning. The relation of survey items intended to serve as a proxy for verdict preference with various demographic, personality and attitudinal variables is evaluated by analysis in order to build a statistical profile of the client's ideal juror."

So in other words, what they're saying is these studies are looking at what kind of juror is the best juror for us and how can we get that juror? Therefore, it's connected to what we're talking about today.

Because believing that we can actually do that thing is what leads us to really want to do the exclusionary voir dire. If I know who my ideal juror is and how to find that person, then I also know who my "bad juror" is and I can get rid of them.

The study continues or the article, "However, a large body of empirical research calls into question the premise that jurors votes during deliberation can be reliably predicted from juror characteristics that are observable before trial. In general, jurors demographic attributes, personality traits and general attitudes are associated weakly and unreliably with juror verdicts. For example, in a study of over 800 mock jurors recruited from the Boston area, jury pools, juror's education, occupation, political ideology, gender, age, and trial experience collectively accounted for less than 2% of the variance in their verdict preferences."

So what I'm reading, if you're following me, is that where juror works and what their gender is and all of the things really do not make a big difference in terms of outcomes.

Now, I went and I looked at another research study and in this article they talk about again, that juror characteristics and they say "spurred by the emergence of "scientific jury selection in the early 1970s," much of the work on participant characteristics has sought to identify relationships between juror characteristics and pre-deliberation verdict preferences. However, after extensive study, it is now clear that few, if any juror characteristics are good predictors of juror verdict preferences. Those characteristics found to be related to juror verdict preferences have tended to have weak and inconsistent effects."

It continues in terms of demographic composition, "As a whole, demographic factors such as race, gender, education, and socioeconomic status have received a great deal of attention from small group researchers. Because these factors are readily observable and appear to play a large part in social cognition. It is therefore surprising that juror demographic characteristics have been only weakly and inconsistently related to juror verdict preferences." Here's what I want you to get from today's podcast episode.

The first thing I want you to get, no one knows what actually works. No one. Because you know what I didn't see? I didn't see a single research study on the reptile method. I did not see a single research method or research study on the Jerry Spence method. I did not see a single research study because I know it didn't happen on the H2H method.

Until I see and get actual numbers and then we have all of the control factors. We can't just look at, by the way, let's take you back to statistics class and to science class.

We cannot just look at people using those methods and say, "Well, the people who use these methods won this many times and the people who used those methods lost this many times or won these many times." It's not that simple.

We have to have control groups. We have to control for various variables. The actual attorney themselves, the case facts, the juror composition, all of the things that we are never going to get because one of the studies that I read said that they tried to study juror deliberations. I think it was in the fifties, and there was a congressional law that came down that said, "You can't do that. You cannot study actual deliberations." So we don't even have access to know why jurors made the decisions that they did, and if it in fact ties back to a specific method. Not that all these methods won't be telling you that the reason somebody won is because they used XYZ method. I mean take focus groups because you all want to tell me all day long about how focus groups said this. So that's what this means.

The focus groups that a lot of people are using now are on the web. The attorney are completely just minused out of the equation and we're just throwing facts on a jury and seeing what they think.

That is not giving us actual data in how this is going to play out in front of a jury. Not to mention, if we go back to exclusionary voir dire that cause challenges are often denied, most jurors are rehabilitated by the judge because they don't want to bust the panel. Cause challenges can often, depending on how they're done, destroy the group dynamic. And if you're only relying on voir dire, that is exclusionary, you are missing a big fucking opportunity.

So let's take for a minute the question or the word work. Let's define work. So of course I went to the dictionary and it says, "When you're defining work..." In terms of a plan or a method, the way they define whether a plan or method works in the dictionary, it says, "It has the desired result or effect. It produces the desired result or effect."

By this definition of whether something works or not, we can say that all trial methods work and conversely that no trial methods work because all methods including mine, have produced both wins and losses.

What is the result that we're after if we look at that definition that it produces the desired result or effect? Well, I think most of you would say the desired result is to win. And if that is your desired result is to win, then use whatever fucking method you want. Because there's no research that I know of out there that says this method works better than that method. But what if we changed what we meant by result. Knowing that you can pretty much use anything to win or lose, you all have before I existed. I mean, I know those of you who are out and going, "No, it's H2H." Come on before I existed, people won cases. It's not H2H that's only winning cases. So knowing you can use any method to win or lose, what if we change the result from winning to a method works if it helps you become the best you that you can be.

Because here's what I know for sure. Here's what I know for sure works, you. You work. No method will ever replace the brilliance that is you. That's what I know for sure works. I don't create magic in my studio by myself. The magic happens when I'm working with one of you or one of my crew members. They bring the brilliance. I just help them step into it. That's what I do. So if you are now changing your idea of what works, how can you know to becoming the best you can be? How can you know whether a method does that?

So I have seven questions you can ask yourself about the book you just picked up or the method that you are considering or the CLE that you want to go to. Is this going to make me the best me?

So the first thing you can ask yourself about this method, is it easy? Meaning is it something that makes your life easier versus harder? Because what I know for sure is that being a trial lawyer is already super fucking hard. It's a shit show. It is one of the hardest jobs that anyone can have. It's stress 24/7. Why on earth would you want a method that doesn't make your life easier? It makes it harder. Which really brings us to number two, which is it simple? Because one of the things is if your method that you're trying to learn to help you try cases better is complicating everything and is making you jump through a million hoops to get it and learn it and understand it, and there's 27 points in the opening template for you to memorize and make sure you cover, hell the fuck no. Why would you put yourself through that? Well, because people are winning with it.

People are winning with everything as we've just demonstrated, and they're also losing with everything. They're losing with H2H, they're losing with Reptile. They're losing with Jerry Spence. We lose cases and we win cases. It's about a 50/50 deal.

If you look at the recent research about winning or losing, there ain't nothing out there that is way up in the 70/80 percentile. Even if I went and did my own research on H2H, and a lot of people are winning in H2H, I could come in, I could send you an email and says 90% of people who use H2H are winning their cases. That could maybe be true, but that wouldn't tell me why they want it. That wouldn't tell me that H2H was the reason they want it because it doesn't take into account their level experience, the type of case that they had, how they did at trial that day. Did they have the flu? Were they on cocaine? I mean, who the fuck knows? We don't know. So is it easy? Does it make your life easier? And is it simple to learn? Those are two big things I would ask yourself of whether something "works."

Three, does it focus on what you want or what you don't want?

I know in H2H, we focus on what you want. We know that you want jurors that can help you. So we're not going to spend our time looking for jurors that are not going to help you. It's like, and you've heard me say this a million times, hiring for a position, looking through all the resumes and picking out all the people who are bad for you, and then time runs out and there's one resume left, and you go, "Well, I guess I have to hire this person because that's all that's left." That's not what we want to do.

Good methods that help you become the best. You are going to focus on goals. They're not going to focus on how to avoid pitfalls. Now, a good method will have that, but it will not make its focus that. That's the difference.

Number four, is it ethical? Are you doing things that go against your values, that go against principles, that go against your common sense, that make you feel icky? That's not going to help you be the best you if it's not ethical, even if it "works" using the old definition.

Number five, does it feel good? Does it feel good to use the method? Do you feel happy and satisfied as you're both prepping for trial and in trial? Outside of being nervous and all the things that trial brings, does it feel good to connect with the people that are using it to use the method itself? We discount that. We're like, "What the hell does that have anything to do with it?" This is your job. This is a huge part of your life.

Why wouldn't you want to use a method knowing that all things being equal can win and lose with anything? Why wouldn't you use a method that feels great to use?" I'm not saying that H2H is the only method that's fun to use or feels good to use.

I know TLC. People love TLC. Great. I'm saying whatever you're using, it should feel good. And under that, it shouldn't make you feel like you are the problem and tear you down to "build you up" and act like it has all the answers and nothing because that feels like shit, honestly.

Part of your brilliance is your intuition, which has been worked out of you. I don't want that to be worked out of you. And I don't think any method that's wanting you to be the best, you would want to work that out of you either. So really tap into, "does this make me feel good?" Learning this method this way, being prodded and poked and torn down in front of my peers, if that is in fact what they're doing, being told that I need to ask permission before I use things because they know better than I do. That doesn't help you be the best you.

Number six, does it incorporate practice? I was talking to somebody... Well, I think it was in our Facebook group, and someone said, "I was doing another case with a non-H2H-er or somebody who had heard about H2H-er. I tried that once and it didn't work. So I don't use it anymore." Nothing is going to work.

None of these methods that we've talked about today or anything that's on the market today, mine or anything else is going to work unless you practice it. And this is the problem in this world is that we are all looking for the quick fix and you all are looking for the fix. Any of these methods are going to work on some level if you go all in on them. That's just the truth of the matter.

But if you don't have a place to practice, if they aren't taking you through the actual doing of the thing before you get into trial, that's not going to help you be the best to you. That's giving you a promise that's not going to be able to deliver because it's not head knowledge that you need necessarily going into trial. You need that body knowledge too. You need somebody that's going to force you to get up and try things and get comfortable in that space.

And the last one is, and you might be surprised by this, but is it fun? Are you excited to go to trial? Are you enjoying prepping? Do you love talking to your jury? Can you not wait to give your opening?

If your answer to all of those things are no, I hate that, then you're not with the right method. There can be really, really, and there are really, really good methods out there. But if you hate using them and you're not having fun and you're not coming back even after a loss and going, "Damn, that was fun." Which by the way, nearly all of our H2H'ers say even after a loss, then that method is not serving you because life is too short. I know that we are not having fun with catastrophic injuries and death. That's not what I mean. But I mean, the process of it is fun.

Going out there and fighting for these people and being their voice and trusting the jury to do the right thing. I know our H2H'ers are having fun.

Listen, I don't list these seven things to illustrate that H2H is doing all of this. H2H is doing all of this, but there's probably other places that are doing it too.

My point is that before you go spouting off, well, this has worked for 40 years or somebody else tells you that. Know that that's not fucking true. We do not have the research, nor do... I think we can get it based on all the factors that are in play and all the restrictions that we have on observing actual juries in deliberations. So we've got to change our definition of what "works."

And if you have a method and it's not H2H and it meets these seven things, great, go all in. But do not believe all the "marketing" out there about what works and what doesn't, because that shit just doesn't exist.

And even if you send me stuff after this podcast saying, "Yes, it does," I'm going to come back at you with, "Okay. Where's all the control studies? Where's the pre-review? Where's all the things?" And even if you show me that, I'm going to say, "Even if you can show me that this one method blows every other method out of the water in terms of the win-loss record, I would still bring you back to these seven things." Because if it isn't doing these things as well, then it's still not worth it. Hope that helps. Talk to you next week.