In this episode, we're going to talk about why you need to stop focusing on kicking jurors off, and instead begin focusing on what jurors you want on.
Episode 7 Transcription
When you're 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 court room, 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 trial attorneys. Thanks for tuning in, and today we're going to talk about why you need to stop focusing on kicking jurors off, and instead begin focusing on what jurors you want on. In the last several podcasts, we've gone over the five Ps and the how you reverse the threat from SCARF, SCARF being the model that David Rock talks about in his book, Your Brain at Work. He was not speaking of juror specifically or jury selection. It's when I went and looked at that model and thought, "Oh my goodness, this applies across the board to jurors."
The SCARF model says, as a quick review, that there are five sociological factors that when threatened, the brain perceives that as an attack. So status, you know, if we threaten someone status like we do in jury selection by asking them questions, forcing them to speak in front of a group, so on and so forth, the brain sees that as an attack.
Certainty, if we don't give certainty, and of course in jury selection and there's little to no certainty, jurors don't know why they're there or what they're supposed to do. That is a brain attack. Autonomy, we limit juror's autonomy by saying they must stay and participate.
Relatedness, which is all about knowing the people that we are in whatever situation we're in with. We don't have that in jury selection either. And fairness, because of all of those things, this seems absolutely unfair.
So we've been looking at those five factors and how to reverse the attack that they create in the brain in the last several podcasts. And so today with that understanding that jurors are hostages, that's of course … The whole point of this podcast is helping you understand this idea that jurors are … Jurors are podcasts … that jurors are hostages, and that your job as an attorney is to lead them from hostage to hero.
What I now want to really get clear about is the idea of what jury selection is for because when I ask attorneys, "What is jury selection for?" nearly every single attorney will say to me, "It's to find the bad jurors and kick them off." And my answer to that is … wrong. That is not the reason for a jury selection. And if that's why you think we are having jury selection, you are wrong.
First of all, let's point out that the jurors certainly don't want to be part of a process where they are interrogated and picked apart just for you to discard them. I mean think about that for a minute. That is actually what you are saying … not to them, of course. You to them are saying, "Oh, please trust me," and, "I want you to be a part of this process." But what you're really communicating non-verbally and through your true belief, if this is what you think jury selection is about, is, "Who here is bad for me, and how do I get rid of you?"
And I'm here to say that you've got to change how you view jury selection if you want a different result. Most attorneys absolutely dread voir dire, and I can see why. There are a variety of reasons for that. One reason is it's this conversation that you have to have, and yet you don't know what these people are going to be saying, so there's no way to really prepare for this conversation. Not to mention that this is a hostile audience, and you have a specific agenda that you need to cover, and so on and so on and so forth. It is just a difficult thing to do. But in terms of what it is that we're actually trying to do, I think it's going to serve you better. In fact, I know it's going to serve you better to stop thinking about this as an opportunity to find out where your bad jurors are, and instead start focusing on where your good jurors are.
Now, before you turn off the podcast and think, "I've lost my mind. It's the bad jurors that lose cases," may I please remind you that, that is true. Bad jurors do assist, of course, in losing cases. But can I also remind you who wins cases? Good jurors win cases, and you have to be on the lookout for them. You have to know where they are. Listen, if you don't know where those jurors are, then there is no way to call them forth, which is what your job is.
I mean, think about it this way in terms of a job. Let's say that I need to hire someone in my office. I put an ad out there on Craigslist or wherever else. And as the applications come in, what do I do? Well, if I'm going to treat this like you guys treat jury selection, what I'm gonna do is I'm going to go through all of those applications, but instead of looking for who's a good fit for me, I'm going to look for, you know, the misspelled resumes, the typos, the people who don't have the right, relevant experience, and I'm going to freak out about who those people are and make sure I don't hire them. How much sense does that make? I ask you.
Now, by the way, I am not suggesting that you hire those people. I wouldn't hire those people, but it's pretty damn clear who those people are right off the bat. If I look at that resume and I know what I'm looking for … Ding, ding, ding, that's what we're gonna be talking about today … then I know that they are not the right person to hire. Because you might be thinking, "Well, that's the problem, Sari. They don't come with these typos and misspellings. They're kind of hidden out there." Well, they won't be hidden if you know what to look for.
The reason for all of this, the reason that I'm talking about this and hitting this so hard is that we create, meaning you. You create what you focus on. If you only are looking for bad jurors, then those are the people that are going to show up. But, if in fact you start looking for the good jurors, that is what is going to show up as well. We have to get super clear about what it is that we're doing. Listen, what you ask jurors to do is hard. You're going to ask them to go back and do this job without you. You do the preparation throughout trial. Yes, you're going to give them the information and they're … Boy, is ever going to be a lot of information. But when the rubber hits the road, they are going to have to do this without you, which means that you have to find really good people that know how to work together and hold their own and argue for you.
I mean, isn't that what we're asking them to do? We're asking them to fight for you behind closed doors without your help. I mean, right now the way that you guys have jury selection positioned is, "Who here is out to get me? Let's kill them off, and then I'll just deal with whoever's left." That is no way to build a stellar team, a team that has to do some of the most important work of all that you've been doing. All of your work that you've been doing for sometimes a years in these cases comes down and is resting in the hands of this group of people, and you're not spending any time crafting who they are and how to identify them, and then how to grow them throughout trial so that they do go do the work. They take that heroic action that we're hoping that they take.
No. Instead, you're viewing them as the enemy and getting rid of them. And as I said, making do with whoever is left. Dudes and Dudettes, this is not the good way to approach jury selection. We want to focus on who we want on, not who we want to kick off. Now, when we start to get clear about who it is that we want on our jury, that will also help us get super clear about who we don't want on our jury. That's the nice benefit of this system that I'm teaching you and I'm going to be talking about today. Not In super depth of course, because we don't have time, but I'm gonna give you some pointers today to get started at least.
There are three things that you can do to start changing your focus from bad jurors to good jurors and still get an excellent jury that will take that action for you and your client behind closed doors. The first step is to change your mind. You have to come into jury selection with the mindset of, "I'm looking for who wants on, not who wants off." Again, that doesn't mean you're going to ignore the people that don't want to be there, that going to ignore your bad jurors, but your mindset is, "I'm looking for who wants on. Who here is going to help me win this thing?" That's the first thing is you've got to change your mind.
The second thing you got to do is design for the ideal juror. Look, a lot of, well, anything really comes down to design. It's all about how we've designed, whether that's designing your day or designing a building. The same is true here. Your design has to be for what you want your result. So if you want ideal jurors to show up, you need to design for them.
Now what do I mean by that? Well, when I asked my attorney clients, "Who is good for us?" they just look at me blankly because they don't know. They basically just think it's the opposite of whoever's bad for us. And that's just not a really great way to approach this. So when I helped my attorney clients create what I call the ideal juror profile, what I have them do is ask themselves a basic set of questions, really one question. First I say, "What are your fears in the case? What are the issues in this case that we need to overcome in order to get a verdict for your client?" And so that may be a variety of things, very specific things to the case. It may be other things that are probably true in every case such as can't give money, hate lawyers, whatever the case may be.
Once we have that list, then I asked my attorneys. I say, "Okay. Take one of your fears, whatever it may be. And now ask yourself this very important question. What would an ideal juror have to think or believe for this no longer to be a fear? What belief, in other words, would negate or nullify this fear on my list?" And let me just say right now, this is hard. This is hard for most attorneys to do because what I'm asking you to do is make your brain flip. What I'm asking you to do is think the opposite of how you're trained to think, which is, "Which juror will kill me." I'm asking you to think about, "What juror would be good for me?" Not even what juror would be good for me but, "What belief would a juror have to have for this no longer to be a fear?"
So think about the things in your case. So for example, let's say a UIM case, so this comes up quite a bit. So under insured motorist coverage, and they're refusing to pay. And one of the issues in the case is that they're saying, because of course they always say things like this, "Well, we didn't pay because we didn't get all the information." And so we have that on our fears list, right? Because they're gonna bring it up at trial, "Hey, we would've paid, but we didn't get all the information in the time that we asked for it," or, "We just didn't get the information." And so one of the ideal juror beliefs in that case might be, "Well it's the insurance company's job to make sure they have all the information, not the other way around." Meaning it's on them to ask, and continue to ask, and to continue to be clear about what they need and when, not on the insured to kind of figure out what it is the insurance company needs. And then when they don't provide it, then the insurance company can use that as a reason for not paying.
Now, that doesn't mean that the jurors on our panel will believe that. What that is is part of the belief system that our ideal juror, we hope has. That they believe things like that. There might be some things in your case that are pretty case specific, and you may not be able to come up with something right away. For example, you might have a case where … Like we had one where one of the things we hoped an ideal juror would believe is that a particular doctor should have sent the patient to a Mohs surgeon, a surgeon that also is trained as a pathologist, because that's the safer option. And so the attorney said to me, "Well, how can I put on my ideal juror profile, “They should have sent them to the Mohs surgeon?” Most jurors would know that."
And so I asked the attorney. I said, "Well, what's the principle beneath the belief?" So, of course that's to case specific to even have a hope that jurors would believe that. But what principle could we hope they believe? What's the principle beneath that? And the principal beneath that is doctors should always choose the safest option. "Ah, we could put that on our ideal juror belief." So when you start going through all of your fears, you start coming up with all of these beliefs that an ideal juror would believe, so it's the exact opposite of your fear. Meaning if this flew out of your ideal juror's mouth, you'd think, "Holy hell, that is a great juror for me. That's exactly what I want them to think."
And by the way, don't get worried about, you know, poisoning the jury pool or that they're going to be kicked off. I really don't believe you should be focused on trying to hide where your good jurors are. I just don't think the serves you. I don't think it does you any good. Just take my word for it. Maybe I'll do a podcast on this in deeper measure later. It's not a good use of your time. It's much more useful to find out where your ideal jurors are.
So as you go through this list of fears, you start to come up with this ideal juror profile. When I do this with clients, we'll have 15, 30, 45 statements. And as we look over this list of all these things that an ideal juror would have to believe, you better believe at the end of this … And sometimes this takes days if not weeks to really curate this list because again, it's asking your brain to do something different than what's used to doing … You better believe that we now have a very clear idea of what kind of juror we are looking for. And you know what else? We also know who are dangerous jurors are because our dangerous jurors are the jurors that don't believe these things.
It really is a double-edge sword, which is so nice about it. Because now that you have this list, you can go to that list and you can start creating questions. You can start thinking, "What would I need to ask to find out if jurors believe this?" And now your jurors start to easily show up as either ideal or not ideal. In other words, it's so easy. You can take this list, by the way, and give it to a paralegal or someone else who is evaluating voir dire, because you if you are doing voir dire should not be the person evaluating, and literally make a check mark next to each juror ideal belief as you're asking the questions, and it becomes super clear who's for you or who's willing to be for you, and who is not ideal. I mean that's really the third piece is that once you know who you want on, then you can kick off who you don't want on, which is what you think you were there to do in the first place, but it becomes this nice side benefit.
So focusing on who you want and getting really clear about who that person is and what kind of beliefs they hold. By the way, this is the only kind of 'demographic' quote-unquote that I would use. I think we really get in trouble when we start thinking, "Women age 40 to 50 would be blah, blah, blah." I mean that can be helpful on occasion, but I think knowing what jurors believe, or what we at least hope they believe, is much more helpful to you because now you can actually start designing questions around the principles in your case to find out whether jurors believed these things or not. And that's how you can switch your focus from who you want off to who you want on because this allows you to still kick off who you don't want, but at the same time it helps you get really clear about who your team members are, what they look like and how you can identify them.
I tell you before we go into anything else in these podcasts, it's important that we get clear about what it is that we're there to do. We're there to build a team. Yes, we don't want team members or people on that team that are not going to assist us but using this method, this just little bit that I showed you today, can help you figure out both: who your team members are and who is not, clearly, a team member. Change your focus and you will get what you focus on.I'm telling you, this works. This works. This works. I see it over and over again. Plus, it makes voir dire much easier and more fun for you because you're communicating from a place non-verbally of, "I'm looking for my team. Where are you?" And that gets communicated, and it just makes the whole thing much less hostile and much less tense.
Now, if you want to get deeper into this method of voir dire that I've just taught you, you can go to our website at SariDLM.com, and you can click on trial consulting. We're going to be changing the website soon. So if you're listening this podcast and you can't find it, just click on anywhere there that says, "I'm a trial lawyer," or, "Trial consulting," anything there. You'll find it.
And we have our strategy session package, so you can do a variety of things there. You can schedule a strategy session with me. You have access to my calendar immediately by going to that link. And what you'll get with that strategy session is you'll get 75 minutes with me, but you'll also get a half hour video that walks you through step by step what I just talked about, both for voir dire and opening. There's a workbook that comes along with it, two workbooks in fact, and to handout packets.
If you think, "Hey, I don't need to talk to you, Sari. I just want to kind of learn more about your method. I just would love the materials," you can buy the materials as well, just the video along with the workbooks. And if you're like, "I don't have voir dire in my state, but I'm interested in how you do opening, you can just buy voir dire by itself or opening by itself. All of that is available at SariDLM.com.
If you guys have not subscribed to my other two podcasts, I invite you to do so. Tap Into Your Power: The Amplify Project Podcast is available on iTunes as well as our Amplify-Project.com website. That is all about tapping into your power and finding your voice. Here on From Hostage to Hero, we're looking at how to find your voice in trial. On our Soundcheck podcasts, our third podcast, it's all about how to find your voice on stage. And so we're all about finding your voice here at SariDLM, and we're kind of approaching that from a variety of different methods.
One is just general find your voice. That's the Amplify Project. One is in court, From Hostage to Hero. And the other one is on stage with Soundcheck. So check out those other two podcasts as well. And thanks for being with me today. I will see you on the next episode of From Hostage to Hero. And until then, we invite you to find your voice and amplify it. Talk soon.
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 for yourself.
If you liked this episode topic, check out these others:
- Episode #134 – Four Questions to Help Jurors Give You the Principles in Your Case
- Episode #99 – What Motivates Jurors to Act?
- Episode #126 – How to Empower Jurors to Fight for You in the Verdict Room
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