What do you mean "brain attack?" The jury selection process launches potential jurors into an absolute mental frenzy.
Fight or flight has been activated and they are hostages to the process.
But, there are five specific areas you MUST address in order to move them from this internal panic state to a space where they can show up as the heroes for your case.
Give this podcast a listen to learn how you can reverse the attack on the jurors' brains. More episodes available at www.saridlm.com, on iTunes, or on your preferred podcast app.
EPISODE 53 TRANSCRIPTION
When you are up against a hostile room of people who don't want to be there, you need real strategies that get results. Welcome to From Hostage to Hero, the show that gives you practical advice you can use right now in the courtroom, boardroom, or classroom. Learn how to move your unwilling audience to one that is invested in what you're saying, eager to participate, and engaged in the process. Learn from the Attorney Whisperer herself, your host, Sari de la Motte.
Sari de la Motte:
Well, hello, everyone. Welcome to another episode of From Hostage to Hero. Sari de la Motte here. Happy to be with you wherever you may be listening to this. And just so thankful for all of my listeners, my growing listenership. Is that an actual word? I'm not sure. But every day I see more reviews on Trial Guides for the book From Hostage to Hero, and I see your kind reviews on iTunes. I just want to thank you for that. And also, ask those of you who've not done that yet, if you would be so kind as to give us a review or just click the star rating on iTunes or wherever you may listen to your podcast. Thank you again in advance.
I also want to let you know that we have at the time of this recording, only one seat left for the April voir dire. February is sold out, or at the time you hear this, was sold out and I'm assuming April will be sold out by the time you hear this podcast. Which means that we only have one voir dire studio left in the entire year of 2020, and that's September. And I know, again, as of this recording, that only has four seats left. So if you want to come out and learn voir dire with me, this is your year. There's only a few seats left. And in addition, we also have the opening statement studio, which is in July and November. So make sure you grab a seat for one or either or both of those. All righty.
Well, today we're talking about how to reverse the brain attack that jury selection creates. So if you've been with me for a while, or if you've read my book, this is old hat for you. And I would still suggest that you continue listening because there may be some new things here, but I really thought I should go back and talk about this because we've added so many new listeners and so many new fans of the book. And so let's talk about why I believe jurors are hostages, and more importantly, how you can start to reverse the brain attack that jurors are under when they go through the jury selection process.
First of all, the reason why their brain is under attack is there's really five reasons. And I've taken this from David Rock's Your Brain at Work, where he talks about these five factors that you either can use to reward the brain, or that the brain views as an attack. And so that first thing, and you've heard me say it probably many times is status. All right? As humans, we are wired to crave status. And even if we're not craving high status, what we always want to know is where we are in the "pecking order". And so when we don't know the order of things, as it may be, it's very uncomfortable and the brain views that as an attack. And when we're thinking about something like jury selection, notice how jurors are absolutely confused about who is what. They know the judge has a lot of status. They know the attorneys probably have the next amount of status, but when it comes to their fellow jurors, they have no idea who's in the box and who these people are. And so status is unknown.
And not only that, are we going to now ask them to speak in public? Which if they had any status at all, now it is definitely going to be under attack because we may embarrass or humiliate ourselves as jurors when we speak in public. And most people find public speaking of any type to be extremely stressful, not to mention the type of public speaking that we force jurors to do, which is talk about their own lives and their own experiences. That can be very, very stressful if not humiliating. All right.
So brain is under attack even before the juror comes in the door because they are anticipating this. They've seen it on television. They don't know what to expect, which is part of the problem, but the visions or the ideas they already have in their mind are not great. It's not like people are looking forward to this in many cases, not in all cases, but in many cases. They see it as a waste of their time. They're not sure how this all goes. They're afraid to speak in public, so on and so forth. So neurologically, just by forcing jurors to participate in the jury selection process, which is exactly what we do, let's not kid ourselves. We force them to do this. The brain is under attack just in terms of that first one, which is S for status.
The next one is C for certainty, and this is going to spell SCARF. That's why it's called the SCARF model. And C, for certainty, is all about how the brain craves certainty. We want to know what is going on. All right. This is true for all of us in any situation, anywhere in our lives. We want to know where we're going. We want to know what the schedule is. We want to know what our spouse is making for dinner. We want to know, we want to know, we want to know. The more certainty we have, the more safer we feel. And if you think about this in terms of jurors, they have little to no certainty. They don't know how this works. They don't know the process. They don't know anything. And that creates another brain attack for jurors, which is really important for you as attorneys to understand. And I'm going to talk about how to reverse these things in just a minute.
Autonomy. We absolutely need autonomy for the brain to feel good. The brain needs to feel like it can make its own decisions. Choose to leave a situation if it's scary. Choose to make a different decision if this one's not working out. And when that autonomy is threatened, the brain views that as an attack. And don't we do this with jurors? I mean, that's the main reason the brain is under attack. They don't have any choice in the matter. They have to be there. They have no autonomy.
Relatedness is the next one, so SCAR. And that is all about our need, our human need for belongingness, and to feel a part of something, a part of a group. Know who the people are around us that we're going to have to do the thing we're going to have to do. Jurors don't have this either. Do they? They don't know each other. They're going to have to go and do this thing that someone's saying is really important. They don't really know how to do and they don't really want to do. And they don't even know the people around them that they're going to be doing it with. Brain attack. Big time. And finally, because of all of these things, this just seems so incredibly unfair. Even though all eligible Americans will most likely be called a jury selection at some point in their lives, for this juror, it doesn't feel very fair today. They have to be here and everyone else gets to go along their merry way. All right.
So that's the review of the SCARF model, which I use quite a bit in my work. And again, I think in the very first six podcasts, I went into all of those things in depth, if you want to go back and listen to them. I bring them up here for couple reasons. One, for those of you who are new to me and want to know what's this whole jurors are hostage business. Well, that's really it. It's not a physical hostage situation, although it kind of is when you think about it. I mean, no one's forced them at gunpoint to be there, but we've done everything, but we've threatened them with legal action if they don't show up. I mean, there are actual judges that will put out... What is that legal thing they put out? You guys are all screaming it right now. I can't hear it because you're not hearing this in real time, but you know, that forces jurors to come to court... Is it a subpoena? No, it's not subpoena. Maybe it is.
Anyway, the point is they, yes on certain level, are physically hostages too, but what I'm talking about here is the brain hostageness. The brain is absolutely totally 100% under attack from these five factors. And if you don't get this as an attorney, everything you're going to do is for nought, because you have to understand that this is what you start with. This group that sits in front of you, that you by the way, are so freaking terrified of are a terrified group. You view these people as this scary, nasty, awful thing, when they are not that at all. They are normal everyday people who have no idea what the fuck is going on and they're scared out of their wits most of them, and their brain, all of them, is under attack. It just is. Just look at the research, just look at what I'm telling you. This is how the brain reacts to these five factors. And they all seem to come together and are in play when it comes to jury selection. So that means we've got some work to do and we've got to do it soon and at the beginning.
And so how do we begin to reverse this threat that jury selection creates? Well, I've got the four step From Hostage to Hero model in the book and I've talked about it here and there. In fact, I should probably just do a full podcast just on that. But the point is, is that outside of the four steps, the SCARF model needs to get reversed and reversed quickly at the beginning. All right. So the From Hostage to Hero model is something that happens over trial, but we can't even get there if the jurors are in fight or flight mode, which is where they are. That brain is under attack, they're breathing fast, the heart rate is elevated. They do not make good decisions from that place and you cannot make good decisions from that place. So we've got to reverse this and reverse it quickly. So let's go through each of these and give you some tips and tricks that you can use to reverse the brain attack that jury selection creates for jurors.
So status, how do we fix this? How do we increase a juror status? Well, I've seen a lot of things attempted and I'm telling you right now, it doesn't work. So the one that I often see most attempted is telling jurors how important they are. I mean, this makes sense. Doesn't it? On a certain level, it's I'm going to increase their status by telling them they're the most important people in the room. But let's think about that for a moment. They've been brought in, have the badges put on their chest, either sticker or pinned on. Told where to sit, told what to do, told they can't talk to each other, told they need to ask if they need to go to the restroom. They've been treated like toddlers sometimes for hours and hours and hours.
I think in our Facebook group, From Hostage Hero... If you're not in that group, get your ass in there. It's harping and we're talking about things and it's a great group and it's private and it's only for plaintiff attorneys and criminal defense. But in that group, I think I posted a couple weeks ago about a juror who'd been waiting for eight hours to get called into the courtroom. Can you imagine, oh my God. Let's just take that juror for a moment. They come in and we tell them how important they are and they're just like, "What?" They don't feel important. That is the point. They do not feel important and telling them so is not going to help. I mean, have you ever told your spouse, is mostly men to women, to calm down? How's that worked out for you? Has she calmed down? No, because words don't do it. That's not what actually changes things. Words don't help here.
So if we really want to increase a juror's status, we will do a couple of things. I mean, there are many things, but just the couple that I'm going to talk about here in the podcast episode today. The first thing is, is that when we are in jury selection and if we're getting a juror to talk in the first place, what we will do is actually fucking listen to them. Think about this for a moment. When a very important person walks into the room, the room gets quiet. Does it not? And we all turn to the important person to hear what they have to say. What are we non-verbally communicating? We are saying you are important.
We can talk all day long, upside down and sideways about how important jurors are, but then we stand in front of jurors, ask them a question and start thinking of our next question and darting our eyes around the box. Seeing how I'm going to follow up? What juror am I going to talk to next? Out of our mouth says you're important, and the jurors sees us doing all these nonverbal indicators of not listening and they're like, "Yeah, fuck you. You're not listening." And we're not, we're not listening. So we really want to increase a juror status, make them feel like the most important person in the room. Don't tell them they're the most important person in the room. Make them feel they're the most important person. Listen, deeply, intensely with focus. If you go back and you listen to the podcast I did on the three types of listening, we're not going to listen so intently that we're missing what's happening in the room and happening in the space and happening our intuition. There's three types of listening.
But the first step to empower jurors is to actually focus all of your attention on them and get out of your own head and just be with them. In fact, this is where all the good voir dire... I don't want to turn this into a listening one, but this is where all good voir dire happens. When you guys come out to the voir dire studio, if I can get you to get out of your head and stop fucking worrying about the next thing that you're supposed to say and just be with the juror right there, magic happens. And you know it does if you're listening to this and you've been out to a studio. It's like most of the people who come out to a studio, they're like, "Why am I making this so hard?" I'm like, "I don't know. Why are you?" It's easy. It's just be with them. Listen to them. That increases status. Because not only are you listening to them, everyone in the courtroom is listening to them. And you are doing it with intentionality and focus not because you're interrogating, but because you actually want to hear. You're listening to understand, and that increases status.
We can also empower the jurors. How do we empower them? Well, we give them what we've taken away, what they don't have. I'm going to do a whole podcast on balancing out the scales with jurors. But basically we empower them with information. That's one way. They don't know why they're there. They don't know what to do. When we're talking about military, for example, and we talk about different clearances, the people at the highest level know the most. Think about the jurors. They know the least, they don't know anything. They don't know anyone. People keep telling them how important they are, but they don't feel important because they don't know anything.
So tell them, tell them, tell them, give them information that you can give them. This is what this case is about. We're here to talk about this. Here's how long we think it will last. Here's why I'm asking this question. That's going back to my context statements. Give them information that empowers them and increases their status. Information and listening increases status. It makes people important. Just think about any important person in the world. They have the most information and when they speak people listen. Am I right? Yes, I am.
C, certainty. How to reverse the brain attack that the lack of certainty creates. Well, provide certainty. I mean, it kind of goes with that idea of information from status. They're very connected here. This is why I suggest you do an issue-oriented voir dire of voir dire, in which you will talk about the issues in the case or the principles in the case, not the evidence, not the facts, but the things that the jurors will have to wrestle with in the case, because that provides certainty. They now know what it is that they're going to have to do. And that's a much easier way to find out who wants to be on the jury when you talk about these are the things we're going to have to deal with. You're going to have to talk about sexual molestation. You're going to have to talk about this and this and this. It empowers them. It gives them certainty. They now know why they're there. You know what doesn't give them certainty? Asking about hobbies and passions. I know I harp on this a lot. So I know you guys, you're probably getting sick of hearing it.
And if you've been out to a studio, if you work with me, you know that I don't hate that question as much as I pretend to hate it. There are total places to talk about jurors' passions and hobbies. And it really comes into the damages section of the voir dire, but at the beginning when jurors need information and their brain is under attack, that does nothing for them. It confuses the issue. It makes light of why they're there. That's why I hate it. And the other reason why I hate it... Well, no I'm going to keep that for a different podcast. Listen to the balance the scales podcast. I will talk about it there. So yeah, do an issue-oriented voir dire. Provide certainty.
An autonomy. You know what, we think this is the one that we can't fix for jurors. Yes, you fucking can. And here's how you do it. You give them an out. Listen, we do not want jurors who don't want to be there. Let me just tell you. You do not want jurors who don't want to be there. They will make the decision that will get them out of there the quickest, and that is really good for you, my friend. We simply do not want jurors that don't want to be there. So the way to fix this is to give jurors the out, give them back their autonomy. This is called the designed alliance. It's in the book. And the designed alliance basically goes like this. You start voir dire by saying, "Look, you guys probably think..."
Don't harp on me about the you guys. It's just the way that I talk. I'm trying to be better about it. And you probably wouldn't say that in court suicide note. But anyways, most jurors think... There I go. I fixed it. That the way jury selection works is we ask you these questions. We figure out who's good for us, and then we pick who we like and kick off who we don't. I don't like to do jury selection that way because I don't think it's fair. And by the way, when you're doing this, don't do it if you don't believe this. If you do think it's fair, if that is exactly what you're doing, then you can't say this honestly. Most people after working with me though, get around to the idea that this is really the way to do it.
And so then you say, "I'd like to talk with you about some of the things you're going to have to wrestle with in this case should you decide to become a juror..." Notice right there, my language, should you decide. And then at the end of this process, I'm going to ask who'd like to be a juror, but in order to do that, we have to have a conversation. You want have a conversation, you get people's buy-in. And you know what, you have to go at the end and you have to ask them if they want on. Now, I sing that process. I say, "Now, I can't guarantee that if you tell me that you don't want to be here at the end of this conversation, that you'll get to go home, but I will do everything in my power to make sure that you can." And you have to keep that promise. So I can give them, you can give them their autonomy back by saying basically... Using these words, you're basically saying, "I don't want anyone here who doesn't want to be here. So let's talk about the case and then let's find out if you want to be here." That's how you reverse that brain attack.
I've seen jurors visibly relax when an attorney does a designed alliance like that or anything else, any kind of a designed alliance. What I mean by designed alliance is you and the jurors are deciding how you want to be together. It's not just you are the rule giver and they have to follow no matter what. You're saying, "Hey, I'd like to do this." You game, and that makes it more equal.
R for relatedness. How do you reverse the attack the brain does for relatedness? You form the group. You form the group. Listen, what we're asking jurors to do is a group activity. It makes no sense to me, why we... Everything we do up until they go into deliberations is an individual activity. You've been trained to do individual voir dire even though there's a panel there. You go one by one, you try to make one-on-one connections. It makes no sense to me. Listen, you're not going to be there in the verdict room when they're having to do their most important job. So give them the gift of each other, form the group. And if you want to know how to do that, you can go back and look at the what groups need to form podcast episode, which I think is four or five before this one. So give them the gift of each other. That will reverse the brain attack. You know this, you've been to those parties where no one knows each other until it starts to warm up and introductions are made. And finally, two hours later, you feel like you're best friends with everybody if it's a good party and a good host. That's what you want for your jurors. That removes that.
And fairness. Well, fairness all comes down to showing jurors that, yes, this is unfair. That's why we're here. The scales are uneven. They are tipped in the direction of the defendant. The defendant is about to get away with something if you don't step in and make this fair. And you better believe it, that reverses the brain attack.
Jurors are more likely to lay down their autonomy and choose to be there if they feel they are fighting for something worthy. So show them that they're fighting for something worthy, do a principle or issue-oriented voir dire. Talk about the things that we want to talk about as humans, responsibility, accountability, fairness, betrayal, the themes in your case, those should go in voir dire. Because once you start talking about that stuff, the jurors will start to see that boom, they are important. Boom, they do have status. Boom, they can totally write this wrong. They can bring back fairness to the world and your client, but that's how you do it. Is you involve them from the beginning. You don't waste their time in getting to know you questions. You get to the point, you give them the information, you listen intently. You give them an out, you form the group, and you rally them around the principles in your case. Booya that is how you reverse the brain attack that jury selection creates for jurors. I hope that this has been helpful.
I get preachy. I think that's why you love me. And you know, it's just for your benefit because I'm passionate about this stuff, and I'm passionate about you, and I'm passionate about turning you into passionate trial attorneys. I want to wake you up and get you excited about this job again. Get out there, do it, live it, learn it. I'm here to support you. Talk soon my friends.
That's it for this episode of From Hostage to Hero, but head to our website, saridlm.com for other must-have resources from Sari de la Motte, read the transcript of this podcast, watch trial tip videos, or download your free copy of Sari's article: Why jurors hate the hobby question? We're glad you joined us today. And until next time, remember, that to lead a hostage to freedom, you must first free yourself.
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