FHTH Ep 245 - Why Your Jury Isn't Deliberating Long Enough

From misplaced focus, to survival-mode brains, we're dissecting the TOP FIVE reasons behind those lightning-fast ver-????-ts.

If you want to communicate effectively with your jurors—and I know you do—then you have to get out of your head and into theirs.

Join me as I delve into the H2H method: the purpose of my closing template, the psychology of decision-making, the art of compelling content, and why sequencing matters more than you think.

Xo,
Sari

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"This is why exclusionary voir dire just gets under my skin because it does nothing to form groups. You go in there with your big swinging dick, and you come out, and you're like, 'I got eight people off for cause. What do you think about that?' You know what I think about that? You missed a fucking opportunity. That's what I think about that. What the fuck have you done? Nothing. Your group wasn't formed. Nothing.”
sari de la motte

EPISODE 245 TRANSCRIPTION

Well, hello everyone. Guess what time it is? It is time for me to shamelessly ask for reviews. The podcast reviews have not gone up in quite a long time, and so if you are enjoying this podcast for free, that takes hours and hours. Let me just run you through that for a minute. So it takes me a while to, first of all, think of something and chemo brain. I'm going to use that till the day I die, which I hope isn't soon. Okay. It just got morbid, but so it takes me time to think of things to talk about. Then it takes me time to outline what I'm going to talk about. Then it takes me time to record what I'm going to talk about, and then Kevin needs to go and needs to edit it. And then my marketing person needs to listen to it and create all of the marketing copy.

Then we need to upload it, then we need to put it in an email, and then we need to send it out to you. Then we need to send it out again, and then we need to put it on the website and all of the things. Hours and hours for a 20-minute podcast. Okay. Yeah, last week was like 12 minutes, but it was a good message. So can you at least give me a review for all of the love that I give to you? Thank you. All right. Today we're talking about this problem, which is when the jury comes back real quickly with a defense verdict because they haven't deliberated so long. One of my most favorite cantankerous members in the H2H Cew asked me this question that I'm going to read to you in a minute, and then I promised I had a podcast on it and then I forgot.

So I'm sorry, but this is what he said. "Time and time again in state redacted, 95% of juries retired to deliberate a med mal case, have pizza or some other food on the state's dime, and then return with a defense verdict. Total deliberation time, two hours. I'll bet it's not very different in most other states. I suspect defensive attribution plays a huge part, often unconsciously. I further suspect that defense attribution is the product of mostly unspecific fear and/or anger at frustration at something. Ever mindful of Sari's warning that your case will become whatever you spend your time talking about. Has anyone thought about how to manage this in either jury selection or opening? Am I wrong? Am I being too simplistic? I'd love your thoughts." Well, here come the thoughts. And no, you're not wrong and you're not being simplistic.

I'm going to give you the top five reasons why your jury isn't deliberating long enough and they're coming back with a defense verdict really quickly.

Rob mentioned two of them, and I want to go into a little bit more depth.

Number ONE, they're misdirected.

They're not focused on your case, they're focused on the defense's case. So often we go into trial defending the defense's case. Right. Here's what the defense is going to say. How are we going to defend against that? And that's what becomes the whole case. So I was just working with a client, and I'm going to talk about this in next week's episode, where we were dealing with the idea of agency. So how do we want to deal with the fact that the person who did the thing and the person that we're suing actually wasn't the employer? And so that the jurors don't actually blame the actual employer, they blame this person and you know how it goes. I mean, agents are also always an issue in these cases.

So we were trying to figure all of that out and we were struggling, and I'll talk about this in depth next week when we talk about the problem with the ideal juror profile. Yep. There's a problem with the ideal juror profile and what we came to, is that the reason why we couldn't make it work is because agency, in a nutshell, is a defense point. That's something the defense is going to say jurors need to really look at when that is not really what our case is about. Our case is about this person who did this thing, and they're coming in and going, well, really the people who are responsible were over here and all the things. That's a defense point, but we try to figure out how are we going to neutralize that. Now, I'm not saying that you should never deal with defense issues.

I don't think you should deal with defense issues that are stupid because what you give attention to you make important, but there is a way in which you do that thing. So many of you want to put that front and center. For me, it is always a footnote. What the defense has to say about my case is always a footnote. In voir dire, it's a Devil's Advocate question that comes at the end, after the jurors have given me the principle. In opening, it's the shortest part, the challenges section. We're not going to give that any more attention than it deserves. We're just going to put it in context as Keith Mitnik says, and we're going to move the fuck on with our story. Because what happens is you, this is what the jury gets when they're back in the deliberation room. Here's what happened and here's why that's wrong. That's not what happened, right?

So one person's saying this is what happened, and the other person's saying, and here's why they're wrong. That's not what happened. But here's the problem. The here's what's happened should be coming out of your mouth, and the defense should be the one saying, no, no, no, that's not what happened. But almost always that's reversed. The defense is saying, "No, no, no, no, here's happened..." And you haven't spent hardly any time talking about your story, and you spend most of your time saying, "No, no, no, no. Here's why they're wrong." Do you see how you have that backwards? So then the jury goes into the deliberation room, and it's just all defense-oriented, right? They're having to decide between the defense's version and your reason for why the defense's version is wrong. There's no compelling narrative. That's your job, is to have a compelling narrative. One that wins the day, one that comes out fighting. Your whole thing is an answer to what they're going to say.

So that's one of the big reasons why I think they're not deliberating long enough, is because they're only focusing on the defense's case and then your answers to the defense's case. There's no other narrative. One of the three parts of the H2H method, the first one is called Creating Compelling Content.

What does that word compel mean? It means to get someone to do something. That is what your job as plaintiff attorneys is. The easiest thing is to let things remain as they are. We want to compel the jury to do something and they do that in the verdict room. But if all they have is to decide between the defense saying, you guys don't really need to do anything here, and your arguments going, well, here's why they're wrong about the fact that you don't need to do anything here.

You're going to lose every time. Because what they need to be doing in the back room is listening to their recollections of you saying, this needs to be done for these reasons. Take action. Do you see the difference? That's number one. So what's the solve? Focus on your case, your compelling narrative, first and foremost.

Number TWO, they don't feel safe.

So this is the defensive attribution. So defensive attribution is, well, I wouldn't have done that. Well, I would've looked both way. I would've gotten out of the car and double-checked to see that there was no other car coming. Right. They come up with the craziest things of how they would've acted perfectly in a situation. And it's not true of course. Right. We always think that we would do something different, and that's because of our brain wiring, which we know, we talk a lot about in here. Our brains are wired to keep us safe.

So as the juror is hearing the story, especially if it's told in the wrong way, which we talk a lot about around here, sequencing matters. The brain just naturally without them even thinking they're doing it is going to start creating a scenario in which if we were placed in that same exact place, that we would make different decisions. We literally can't help it. Anytime any of us read a new story, for example, we automatically without even trying think about how we would've survived it, what we would've done different. We would've made different choices.

It is a survival mechanism, and that is what you are up against. There's no way to work that out of a juror's brain. It also does not make jurors wrong.

That's how their brain is wired. That's how your brain is wired. How can that be wrong if that's how your brain is wired? So there is no blaming them for that. Well, stupid defensive attribution. No, it exists. It might just be stupid brain wiring, right? It exists. And your job is to work with that brain wiring, not against that brain wiring. Now, some of the attempts to do this have been, well, let's just scare them more. Let's just scare them so that they give us a verdict to protect themselves. The problem is, is that that keeps them in their amygdala, that keeps them in their fight or flight, that keeps them in survival mode and people just don't make good decisions from that place. So what's the solve for this one? Well, first off is sequencing. We almost always follow the pattern, whether it's voir dire in an actual funnel or if it's an opening or if it's in closing.

Here's the right way, and then here's what happened. Here's what they did. Here's all the choices that they made. Here's the right way and here's what they did. We do not reverse that. If you go back several podcasts ago, not too long, last month I talked why the "Shit Happens" defense verdicts keep coming in. It's because of your sequencing. You're doing it in the wrong order. If you say it in the wrong order, the jurors are going to think, well, that already happened. So what the fuck can I do about it, right? So sequencing matters. Not to mention that jurors want to feel smart. So let them be smart. Start with the right way. In voir dire, say, what are your expectations for how a company might prevent its drivers from driving distracted and have them give you all of the things. Well, they might make sure that they have a cradle in their car so that people can put their GPS in there.

They might require that their people use GPS like the audio so they don't have to look at it or whatever. Let them be smart where they want to be smart. Let them show you, "Oh, this is avoidable." And then let them then say, what happened. And now when we talk about what the defense chose not to do, now they're going against what your jurors told you should have happened. And now we have a completely different scenario because what you did is you allowed the jury, I should do a whole podcast on this, you allowed the jury to tell you how they would've done it ahead of time. See, that right there works with the defensive attribution. You allowed the jury to say, here's how to safely do this thing. You tell the jury in your opening, here's how to safely do this thing. This is avoidable. And that way we work with defensive attribution instead of hoping that they don't want to keep themselves safe, which will never happen.

We let them teach us how to do the thing safely and then when they see how easy it is, because even a bunch of amateur jurors who don't know anything about this have told us how easy it is to do, and then we show how these actual professionals didn't choose to do those things. Now we're cooking with oil. All right.

Number THREE, they don't know how.

Why aren't they deliberating? They don't know how. Have you taught them how to deliberate? Have you walked them through the verdict form? Do you teach them how to argue for you back there? Do you let them know they can ask for help, send a note if they need to? No. Well then for fuck sake, of course they're coming back two hours later because they don't know what the fuck they're doing.

And one of the things that we all hate is not to know what the fuck we're doing. This is why I don't play games that I don't know how to play because I hate that whole learning part of all the rules, and I don't want to look stupid and I don't get it and all the things. So I'm just like, fuck it, I'm not going to play. Jurors are the same. They ain't going to play either, if they don't know how to play. In our closing template, I think I have a podcast on that, but you know you can always go by the H2H Fundamentals. It's there for you. I walk you through everything, voir dire, open and closing step by step, videos, handouts, all of the things, sariswears.com/fun.

But in that template I tell you, you have to do three things, there's really four, I'll talk about the fourth in a minute, in your closing. You have to tell jurors what they have to do because they're going to have this question, what do I have to do? You have to tell them how to do it because they're going to be like, how do I do it? And you have to show them what happens if they do or don't do it. In many ways, this mirrors the three questions in the funnel, does it not? Right. Because our first funnel question is an experiential question, "Who here has experience with?...", our second funnel question is "What are your expectations of...?", and our third question is, "What can happen if...?" Here we're saying, here's the experience you're going to have, you're about to have. Here are my expectations of how this works, and I'm sharing them with you so you know how it works.

And here's what will happen if you vote for me or against me, right? That fourth part is you transfer power to them so that they feel like they can go and do the thing. So a big reason why they're not back there spending enough time that you think they should be is because they don't fucking know how. So the solve is teach them how to do this. That's got to be a big part of your opening. And when I say big, I do not mean three hours long. I just mean it needs to have the appropriate amount of time to really walk them through the instructions on how to do what they need to do.

Number FOUR, they don't know each other.

They're not a formed group. None of us like to do things with people, with strangers. None of us. If any of us were offered the opportunity, Hey, do you want to go play this game with strangers? Do you want to go to this cocktail party with strangers? Do you want to go decide these life and death issues with strangers? We'd all be like, no, thanks. I'll take a pass. I mean, at least I would. So where do we form the group? In voir dire. And if you're not forming the group, then they don't feel like they are a group. So they go back there and it's awkward as fuck. And what do we do when things are awkward as fuck? We get out of that situation as soon as possible.

Do not overlook the possibility of awkwardness for why you're getting a defense verdict. I'm not kidding. You guys will get a defense for it and you will just beat yourself up. And well, it's because I wasn't prepared. It's because I put on this witness or that witness. Sometimes it's as easy as or as horrible, I should say, as they were just fucking awkward and they didn't know how to do anything and they didn't know each other, so they just got out of there as fast as they could. That's it. So the solve here is to form the group.

Now, I have lots of podcasts on how to do that, so I'm not going to go into that now because we are getting long on this podcast, but the basic gist is to get them communicating with each other, not you. What forms groups? Engagement. Get them engaged with each other, not you. If they get engaged with you, great, that's a bonus. But guess what? Guess who's the one person that's not in the verdict room? You and the other co-counsel and opposing counsel. But it's just the jurors.

So part of your job is to equip them to do this job without you. And if you don't do that and they don't know what they're doing and they don't know each other and they don't know anything, they're just going to not do it.

If I said, go put this motorcycle together, okay, and none of us knew how to do a motorcycle, and none of us knew each other and none of us, which is going to go to number five, gave a fuck about motorcycles, the motorcycle is not fucking going to get built.

We're going to sit there and we're going to shoot the shit for a while. We're going to eat the pizza on the state's dime and we're going to come back out and be like, fuck you on your motorcycle. Okay? And this is why exclusionary voir dire just so gets under my skin because it does nothing to form groups. You go in there with your big swinging dick and you come out and you're like, I got eight people off for cause. What do you think about that? You know what I think about that? You missed a fucking opportunity. That's what I think about that. What the fuck have you done? Nothing. Your group wasn't formed. Nothing. I will stop there before I say more horrible things. Okay.

Number FIVE, they don't care.

You haven't enrolled them, right? I was just in our training this month doing curiosity and we're really working on the Price vs. Value funnels, which is all about how to talk about money in voir dire. And there is a place in that funnel where we really go into what a juror values, what do you value? And from my beginning attorneys, I don't mean beginning in their life, but I mean beginning in H2H, to my Mastermind clients, I've seen people struggle with this over and over and over again. So I did a whole deep dive on it. And that's where we go deep into a topic every single month, and there's practices and community, and we're all practicing with each other. It's awesome.

So I said in the training that starts off our whole deep dive is that why are economic damages the first ones that they can come up with? Because part of what we do in that process is we ask jurors, what can money do? What can money do? And jurors automatically, every single time all the jurors that ever existed on the face of the earth will go to economic damages. Well, they can pay for medical bills. Well, money can pay for hospital stays. Well, money can pay for lost wages. Right. That's where they go. You know why they go there? Because economic damages come from the head and that is where they are in jury selection. They are coming from their head, they're logical, they're prefrontal cortex. Sometimes they're coming from their amygdala, if you keep them there. That's even worse. But they're in their logical like, well, let me, this person posed this question and let me answer that logically. Well, what does money do? Money buys things. So they go to things that money can buy.

Just think about that for a minute. What can money do? Money buys things. What are things that money can buy? Economics. It makes total sense. So how do we get non-economic damages? Which is what they should be back there deliberating about. We have to take them to the heart. Economic damages come from here. They don't come from the head. Why? Because we can't sit here and logically think about, well, how much does a leg cost or a life? That's not a logical prefrontal cortex thing. It's a heart-based thing. And you have to be willing to enroll them in that conversation in voir dire where you say... Now, the second kind of damage that you're going to have to evaluate or assess here is called non-economic damages. And these are things that have a lot of value, but they don't come with a price tag. So before we talk about how you might go about doing that, can I ask you what you value?

And then we go and we just listen to the jurors. And this is where things go off the rails. Why? Because you want to make it work for something. Why really value my family? Oh, would you put money on that if you lost that? It's like, "Oh my God, don't do that. Your family. Say more. What do you love about your family?" You don't need to make this "work" for any reason. You are literally just taking them on a journey to their heart space so that when you come back and you go, "Thank you so much, everybody's sharing these things. I loved hearing about your Sunday night dinners, how much your dog means to you." and all the things. These are the very types of things that you're going to have to put a price tag on. And then you move from that conversation into how they might do that and how those things have even more value than lost wages and all the things.

When you do that, when you enroll them, when they care, we go back, when they are focused on your case. When they feel safe, that they have given you the way to avoid the bad thing that could happen, when they know how, when they know each other, when they care, that is when they spend the time back there getting you your verdict.

So I hope that helps with understanding why they're not deliberating long enough and coming back with a defense verdict. There's your job. Go and get them enrolled. Go and form that group. Go and teach them how to do their jobs. Go let them solve those problems for you first and focus on your case. Love you and love the person who asked me to talk about this. All right, talk soon. Bye-bye.

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.