Sari Swears Podcast: Are You Putting Jurors in the Wrong "Seat?"

One of the most common mistakes I see attorneys make in voir dire is unintentionally putting jurors in the wrong seat.

When jurors answer your questions, they're automatically imagining themselves in that situation—and their brains are looking for ways they would have avoided the outcome.

That's not because they're against you.

It's because that's how people are wired.

In this week's podcast, I break down:

What it means to put jurors in the right seat
How defensive attribution shapes juror thinking
Why some questions accidentally create defense arguments
How to structure questions that generate plaintiff-friendly principles

It's a simple concept that can completely change the answers you get in voir dire.

Love,
Sari

P.S. If you're ready to go deeper on voir dire, join me June 17–18 in Portland for my live Voir Dire Masterclass. We'll workshop your actual case, build stronger funnels, and help you avoid the common mistakes that can derail jury selection.
→ Grab Your Seat NOW: https://sariswears.com/voir-dire

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“When jurors hear a story involving danger, their brains automatically place themselves into that situation and start looking for all the ways they would have avoided the outcome. That's not because they're against you. It's because that's exactly how the human brain is designed to work.”
sari de la motte

TRANSCRIPTION

Well, welcome everyone to another episode of Sari Swears. I don't know if you can see my t-shirt. I wore it in other podcasts, but I didn't pull it up. It's brand new. It says, "But does it please the court?" I think it'd be better if it said though, like T-H-O. "But does it please the court, tho?" So anyway, happy Friday. And if you're listening to this on the day that it came out, because I know some of you just pounce on that shit the minute it comes out... And thank you, I am so thrilled that you are enjoying the podcast. If you are enjoying the podcast, you know what's coming next. You know it, you know it. Subscribe. Subscribe and leave us a review, because that helps us get the podcast into the hands of more people.

All right, what are we talking about today? Well, we are talking about this concept of are you putting jurors in the right seat? So last month I did a Command the Courtroom on voir dire and it was fantastic, and we had 12 amazing attorneys out here. We just had the best two days. And while they were here, I was recognizing... And I've recognized this before, and I may have even talked about it a little bit in the podcast, but I wanted to do a dedicated episode on this. But I was noticing that as they were creating some of their questions that they were putting jurors in the wrong seat.

So what do I mean by that? Well, first of all, what we're talking about is they're creating their funnels, and remember that... Maybe you don't remember, I'll say it a different way. That the book was written in 2019, and the funnel method is not in the book. And by the way, as this is getting more and more popular, we're going to start gatekeeping some of these episodes. So you definitely want to go and join the H2H crew, you can do that on our website at sariswears.com, so that you get the most updated information on what I'm putting out there. I never thought I'd have to do this and I used to look at people that are like, "Really? I need to sign this thing that you're [inaudible 00:02:36]." And I don't know if I'm going to get that crazy, but there are things that I don't really want to be teaching on the podcast anymore, but that I want y'all to have, and so we are moving towards a members only podcast behind the scenes eventually. So go to sariswears.com and sign up for the crew to get my most updated stuff.

But all that said, is that they're creating these funnels. And remember the funnel, and the funnel method, is a way to have the jurors give you the principle in your case instead of you giving it to them, and then asking if they agree. And the reason why we have the jurors give it to us instead of the other way around is because it is way more effective for the jurors to feel that they came up with it. And again, this isn't anything that we're using like a gimmick. It's not, "Oh, we're forcing them to give us a principle they don't really believe in." No, they do believe in principles because that's what a principle is. It's something that 99% of people believe in, it's a fundamental truth. But when it comes from them, there's ownership. Not to mention, and you know I don't teach a lot on influence, but Cialdini, the grandfather of influence work, talks about public commitment. And if we have jurors putting these principles out in the air, that is really powerful because now not only do they have ownership because they came up with it, but it's something that they've committed to by saying it out loud.

I'm going to do a whole podcast episode on the limits of exclusionary voir dire, but these are two big reasons why, and I'll repeat them there, I'm sure. So this is what we were working on is how to create a funnel so that the jurors can give us the principle instead of the other way around. And I was noticing that attorneys were inadvertently putting jurors in the wrong seat. So what do I mean by the wrong seat? So here's what I mean. Think back to opening, and this comes from David Ball where he talks about, and I repeat that in my book, when we tell the story of what happened in our case and my opening template... We call that defendant's story. And I don't mean here's the story the defendants are going to tell you. I mean, here's the story of how we got to where we are today. Here's the things the defendant did. David says, and I agree, that we need to tell that from the defendant's point of view. Meaning instead of saying, "So-and-so plaintiff got up in the morning and got dressed and got in her car and she's driving, and this person came out of nowhere and slammed into her car and now she's got a brain injury." That's the plaintiff's point of view.

We want to tell it from the defendant's point of view. Where the defendant, truck driver, got in his truck and he's on this route and he's a brand new driver. He just got hired and he doesn't have any training, whatever it may be. And we're telling it from the defendant's point of view. Now the reason for that is defensive attribution. Remember that defensive attribution is basically brain science. It says that all of our brains... At least this is how I define it. I don't think you're going to find this definition out there, but this is how I define it. All of our brains are wired to keep us safe. The number one job of any of our brains is to keep us alive. So there's automatic processes that are happening all the time in terms of breathing and heartbeat and hormone regulation and all of that, but there's also the fight or flight response and all of the things that, when we're in a situation that is dangerous, the brain is like, "How do I keep this person alive?" That's the number one goal.

Defensive attribution is when the brain is operating exactly as it should. We get really upset when jurors have defensive viewpoints, but what we don't recognize is exactly how their brain and our brain is designed. So as they are hearing a story that involves something dangerous, and this could be on a news program or this could be in a trial, what their brain is going to do is insert them into the situation and then it is going to convince them of all the things that they would have done so that that outcome didn't happen to them or a family member. This is exactly how our brains are designed to work. So as they are hearing a story, if we tell it from the plaintiff's point of view, for example in our opening statement, they are going to think of themselves getting into the car and driving. And even though we say, "out of nowhere a car comes and smashes into this person," they're going to think, "I would have seen that. I would have stopped. I would have hit my brakes sooner. I would have taken a different route." Again, not because they're assholes, as much as you want to convince yourself that jurors are assholes and really don't want to help you in any real way. It's not because they're assholes, it's because that's how their brain is designed to work.

So in voir dire, what we're doing instead of saying point of view, because it doesn't quite capture... It's very similar. I use the term seats. So what seat are you putting jurors in? Meaning how are they viewing the question that you are about to ask? Now here is the very exciting piece of this, is that we are going to use defensive attribution in our favor. We're going to turn this shit on its head, and I'm going to show you how to do that today.

Okay, okay. I get it. Y'all have been asking for more voir dire, so I added another masterclass in June. This is your final chance to join me for an in person training and on the spot consulting on the very thing I wrote the book on. It all happens June 17th and 18th in my Portland mock courtroom. Register now because there are only a few seats left. Go to sariswears.com/voirdire, V-O-I-R-D-I-R-E to sign up. You stand on the side of the right, now let's make sure the jury knows that too.

So for example, if jurors believe like all of us believe, that they are the smartest and safest people in the room... And we want them to think that. I'm not saying this to denigrate them, we want them to think that. In fact, the entire H2H method works around this concept of making our jurors always feel like they're right, that what they're doing is the right thing, that they are the smartest people in their room. Why? We know all, social science tells us, that it is nearly impossible to change a person's mind, especially with the limited amount of time we have in a plaintiff case. It's not possible. So the entire H2H method is based on the idea that we're going to make jurors right about everything. And guess what? We're going to base our case on principles, because 99% of people believe in principles because they are a fundamental truth, and all we're going to do is align with our jurors instead of trying to get them to change their mind about something.

See, you got that all wrong. First of all, we don't need to change their mind. You think they're against you. They're not. I always say that most jurors are for you, they don't know it yet. Because you're a plaintiff attorney, because tort reform and our insurance rights are going up and all the great PR that defense attorneys and the defense bar has been able to make great strides in that area, you think the jurors are against you. They're not. They're for you because you stand on the side of the right. So we don't have to change their minds, first off. And even if we did, we can't. So H2H doesn't even go there. What we're going to do is we're going to work with jurors. So based on this premise that jurors, people, believe they are the smartest and safest people in the room and that they would always make a different choice, we are now going to use that to our advantage.

So here's an example. I'm going to show you the wrong way and what was happening here in our family courtroom last month. So the wrong way is there was a case with a pedestrian, I'm not going to say any more than that. A pedestrian was hit when they were trying to cross the street. We all know that pedestrians have the right of way, and what the attorney was doing as they were creating this funnel is they started by asking, "How many of you have ever had to cross the street?" And as I was walking by, because people are working in groups and I'm coaching at different times and Coach K's coaching other groups, I go, "Hold on. You've now put the juror in the plaintiff's seat." And he said, "What do you mean?" And I said, "And we don't want them there." When we are in the plaintiff's seat, they're going to be thinking about how they would not have gotten hit crossing the street. They're going to be saying, "I would have looked both ways. I would have looked 100 times before I crossed the street." Now, they wouldn't have. They probably would have done exactly what the plaintiff did in this case. But they're going to think they would have because they have a deep-seated need, the brain, to feel safe in that scenario.

So they are going to be way smarter than our plaintiff. So we rarely, if ever, and I'm going to talk about some places where we do want to, put them in the seat of the plaintiff. I said, "Instead, let's put them in the seat of the defendant." So instead of asking, "How many of you have ever had to cross the street?" Let's ask, "Who here has ever driven a car when pedestrians are around?" So notice how now we're going to put them in the defendant's seat. Now in both scenarios, the juror's going to be the safest person in the room. Which one, knowing that they'll do that, works in our favor? It's the defendant's seat. Because when they're in the defendant's seat and we say, "Well, how do you drive knowing pedestrians are around, or you're in an area where pedestrians may be crossing the street?" They're now going to say, "I make sure to look for pedestrians. I make sure to slow down. I make sure to give them the right of way." All the things. Because they want to be the smartest people in the room, we're going to make them the smartest people in the room. We're going to be like, "Great, that's awesome."

See, the additional thing that happens is when we put jurors in the defendant's seat and the jurors tell us all the ways they did it differently than our defendant did, because our defendant did not do those things, we bother the defendant, we make them not part of our group. In this group, we are very careful when we drive around pedestrians. And when they hear... I don't have to say it in voir dire, but later when it comes out in our opening that the defendant did not drive the way that all of our jurors drive, that others them, that puts them outside of the group, and that helps us. That's how it makes us in our favor.

Here's another example. And I want you to be thinking about this too in that Rick Friedman has this phrase where he says, "We used to look at the plaintiff and say, 'There but by the grace of God, go I.' And we now look at the defendant and say, 'There but by the grace of God, go I.'" Meaning we used to feel sorry for, sympathy for, even empathy for our plaintiff. But now due to tort reform, we look at the defendant and we're like, "Oh my God, that could be me. One little thing and I would be sued too." So we have to be very careful that we're not putting the jurors in a defendant's seat when it's something that they identify with and have sympathy for the defendant.

But I think we also have to recognize that due to tort reform and all other kinds of things that we have very cynical jurors. And the way that I found this out was years ago someone was working in our crew when they were doing a practice voir dire, and they asked the question, "What do you expect of other drivers on the road?" And what they were expecting jurors would say was, "I would expect them to follow the rules of the road. I would expect them to drive safely. Social contract, we all keep each other safe." What ended up happening though was the jurors, people playing juror were like, "I expect them to be assholes. I expect them to drive like an idiot. Have you been out there on our roads? You have to drive defensively these days." Which obviously is defensive attribution, right? The only reason people get hit, defensive attribution says, is because the driver who was hit was not driving defensively, and that works for the defense. Does it not?

So one of the things we did to remedy that problem is, again, we're going to make jurors the smartest people in the room. And so we say now, "Who here got to trial today, got to the courthouse today by driving in a car? Either you were driving or you were a passenger in the car?" Nearly everybody raises their hand. And then you can say, "How did you get here safely? What were the things that you did to get here safely?" Now they may say to drive defensively, not a huge problem if they do, but most of the time they say, "Well, I follow the rules of the road." Because again, the brain's like, "I'm the smartest and the safest person out there." And, "Well, what do you mean by the rules of the road?" "Well, I kept a proper distance. I kept a proper lookout. I slowed down when there were pedestrians around." Whatever it may be, we're putting them in the seat where they get to be the hero. Somebody wrote a book about that, and feel like they are always choosing the right thing.

Here's a rule of sorts, and I may have come up with a different rule at a different time, but in general what you want to be thinking about when you're deciding what seat to put the jurors in is what seat makes them feel the smartest and safest, and others the defendant. That makes what the defendant did something that is out of the norm of what this group does. This doesn't work, by the way, if you are using exclusionary voir dire. You have to be using an H2H voir dire for this seat concept to even work. And again, the book doesn't have the most recent method.

Now let's talk about when you don't put jurors in the defendant seat, or when you can't. So for example, when we're talking about medical malpractice, or something where they would never be in that position. So in a medical malpractice case with doctors, we can't be like, "Now if you were a doctor, what would you do? Or how would you do this surgery safely?" So one of the things we always do here in H2H when we have medical malpractice cases is we almost always have a funnel on trust and how important it is to trust our doctors. And so we might say something like, "Who here has ever been to the doctor? How important is it to be able to trust your doctor and the decisions that they make for you?" So we're technically putting the jurors in the plaintiff's seat, but not really because we're not being super specific about a question like crossing the street or driving to a location. We're talking generally; we want to trust our doctors.

Now a big one here is sometimes the defense will say, "Well, they should have got a second opinion." Or jurors will say that. And you can come out and you can ask that question, but I would ask it differently or I would deal with it differently than how you might do it. So you might say, "Who here has ever been diagnosed with something? You don't need to share what it is." Have people raise their hands and say, "Those of you who are diagnosed, how many of you sought a second opinion?" Now, once you see the people who did and the people who didn't, I want you to go and talk to people who did not. That's very different than what you thought. So I want you to say, "Those of you who did not seek a second opinion, would you tell me why?" And they're going to reiterate for you and solve your problem, because that's what we think voir dire is all about. "Well, because I trusted my doctor." "You trust your doctor. And like we talked about, that's something that you should be able to do. Yes, you should be able to trust your doctor." So that's one way of getting them in the plaintiff's seat, but also giving you what you need versus going after what you don't need.

Let's talk about... Well, let me just first say this. This is not a hard and fast rule. You really have to think through your questions. But let's say it's wrongful termination. Do you want to put jurors in the seat of the employee or the employer? Again, it's not cut and dry. So for example, if unfairness is what's at stake there, which it normally is in wrongful termination, that's basically an unfair call. You might want them in the plaintiff's seat and say, "What would you expect an employer to do if they had a problem with an employee?" And they'd say, "I would expect them to talk to us. Talk to the person, put them on a plan, give them a chance." So we're technically putting them in the plaintiff's seat, but we're still asking the question from the defendant, the employer. "What would you expect the employer to do?" Versus, "If you were an employee, what would you do?" Do you see? So it's not totally cut and dry, because the unfairness is such a human... We all believe in fairness, and so it's okay to put them there, but we still kind of say it from the point of view as the employer, if that makes sense.

Store versus customer, maybe if it's a premises case, "How many of you have ever been to a store? What would you expect the store owners to do, or the store management to do, if there was a spill?" "Well, I'd expect them to clean it up." So it's still not exactly in the, "How many of you are store owners?", but we're still walking through kind of the, "What would you expect the defendant to do?" Versus "What would you as a store or a customer in this case want them to do?" We're still walking through the door of the defendant. And we're always looking for the systemic fault. So that will also help you here when you're talking about what seat to put the jurors in is try to have a more meta view of the thing that happened, yes, but why did it happen? Often when you widen that lens, we get to the systemic negligence in the case.

Now there are situations where you definitely do not want jurors in the defendant's seat where they identify or sympathize with the defendant. And where is that? Basically anywhere that they're feeling like we're being unfair to the defendant. For example, agency. Remember we talked about the things I don't cover in voir dire several podcasts ago? It's in this season if you want to go back and look at it, but one of them is agency, right? An employer is responsible for an employee's actions. Even though that's true legally, jurors feel like that's unfair. "If I employed somebody and they went off and smoked meth and then drove and killed somebody, why am I responsible?" The employer is responsible, but there I don't even voir dire on it because it feels unfair. I'm going to focus my case in other areas. I'm going to find the systemic fault by the way, if I possibly can, but I'm not going to voir dire on that because they are going to identify with the defendant. So you want to avoid putting them in the defendant's seat. In general, we do, but you want to avoid doing it if there is the possibility that they may identify or feel sorry for the defendant. And those scenarios are usually when there's a fairness piece to it.

I'm going to teach this more in the crew, that's what I promise to you. And of course I teach it in Command the Courtroom, please come out and join us. You can see our schedule at sariswears.com/masterclass if you want to look up the upcoming command in the courtrooms. But I hope that was at least helpful for thinking about when you're doing an H2H voir dire. Again, this does not even apply if you're still doing exclusionary, which is why you are doing exclusionary? We'll talk about that in an upcoming podcast. This helps so that you don't get in some sticky situations of voir dire, which I've seen some of my clients go, "Well, I did a funnel, but somehow they were giving me all these defense points." And it's probably because you have the jurors in the wrong seat. All right, I'll talk with you next week.

Thank you for listening to the very end of this episode. A+. I'm going to ask you to subscribe to the podcast, whether you're one of the weirdos that like to watch it on YouTube, or you just listen, make sure you hit that subscribe button. It helps the podcast grow and let other people find me, y'all. But don't stop there. Be sure to leave me a five star review on Apple Podcasts or wherever you listen. We want this podcast to reach as many ears and eyes as possible. Thanks again for listening and we'll see you next time. Bye-bye everybody.