February 7, 2025

“If it’s a huge number, like $100 million, I’m going to suggest you throw it out there—but systematically, at the right time. When you do it right, jurors don’t just accept the number, they start justifying it themselves.”

– Sari de la Motte

Podcast Transcript

Sari de la Motte:

Well, welcome back to another episode of From Hostage to Hero. Today, we’re talking about how to talk about money in voir dire. So the first question that comes up is, should I even talk about money? Not in terms of we’re here for money, and can you give money, and all those kinds of things. I think every voir dire, in especially PI cases in wrongful death, and all the things you guys are dealing with, should absolutely have a portion of your voir dire. I was just in Texas, and now I’ve been training myself to say voir dire. But we all agree that, probably with jurors, we should just say jury selection.

But yes, definitely we should talk about money in voir dire. But what I’m talking about more specifically is, should you tell jurors the number that you’re asking? So that’s our first question, and we’re going to cover that today, and I’ll share with you some of my thoughts around that. But then once we’ve decided whether or not we’re going to talk about the number, the question is, in either case, whether you actually say the number or not, how do you help the jurors really understand the idea between non-economic damages and economic damages? So we’re going to talk a little bit about that as well.

And we’ll also talk about the passions question, which many of you have said, “Sorry, why don’t you like the passions question? Don Keenan uses that to warm up the jury, and why do you think that’s a problem?” So we’ll also cover that. So it’s a very juicy episode for you today on money in voir dire, or voir dire where you might be in. I think it’s… How do they say? Voir dire. There it is. I got it. Voir dire. I’m becoming a true Texan.

All right, so let’s start by talking about whether or not you should actually say the number in voir dire. And here’s my answer: I don’t know. It really depends on the case in general, I tend to lean toward yes, saying the number in voir dire, and I’ll explain why I believe that in just a minute. But I don’t want you to take that and say, “Well, Sari de la Motte says you should always say the number in voir.” That is absolutely not true, and if I hear that coming out of your mouth, I’m going to slap you upside the head, because that is not what I said. So don’t take that and run with it. I lean toward that unless the case doesn’t merit that, and there’s a few instances where it doesn’t.

And there are many, many trial attorneys who I really respect, Randy McGinn being one of them, who don’t ever, or very rarely, say the number in voir dire. In fact, what they’ll do instead is they’ll anchor a high number in voir dire and then when they come back and ask for their number, it pales in comparison, it’s smaller. And that’s a very effective strategy as well.

For example, one of the things that Randy McGinn often does in voir dire is she asks, “If this was a case, and it’s not, but if it was a case where a someone borrowed $10 million,” now she says 10 million on purpose, knowing that her case she’s going to be asking for 8 million, for example. “So if someone borrowed 10 million from a bank, a company borrowed 10 million from a bank, and refused to pay it back, would any of you have difficulty requiring that they pay the bank back the money that they owe?” And, of course, the majority of jurors say, “No, I’d have no problem with that. In fact, I’d add interest to it.”

And she said, “So if someone takes away something that’s valued at $10 million, like in a personal injury case,” and she may not say personal injury, I’m just saying that to you. “What do you think the difference is? Why do we have such a hard time with that?” And it opens up a great conversation. And, of course, I’m not quoting her directly, or even probably accurately, but the point being that it opens up a… She’s done two things. It opens up a great conversation about why when something is so “cut and dry” of you borrow 10 million, you owe 10 million, versus someone’s taken something away that’s valued at 10 million and that’s where we struggle in society as jurors, of, “Oh, I don’t know. Should we give them that back?” And she’s also anchored the $10 million number, when she’s going to actually come back and ask for 8 million.

So if you’ve been in the world for a while, and you’ve read the books, and attend to the [inaudible] you know that everybody has a different viewpoint on whether you should ask or say the actual number in voir dire. Here’s why I tend to lean toward it, and especially in cases that are very big numbers. So, for example, I just worked a case, it hasn’t gone to trial yet, but it will, where they’re asking for a $100 million. And so, we had three mock juries over a week as we prepared the case and got closer, and shaped, it and we’d do a mock jury, and then we’d shape it again, both our opening and voir dire. And then we’d have another jury, and finally we ended with a third jury. And each time we learned something very, very important.

But what I will say is that, even though we weren’t sure at the beginning of the week if we would in actual trial ask or say the number in voir dire, we decided that we would do it during the week just to see how the jury reacted. And, as you might imagine, in every single case, the jury freaked out, they were like, “Oh my God.” In fact, in the third jury, and the time that we had really gotten our messaging down pat the most, one woman went… She had an audible response. She was like, “Oh my God.” Something like that when we said the number.

Now, here’s what’s interesting to keep in mind. That in every of those three juries… And yes, they were mock jurors, and they were from Craigslist, and so they may not represent exactly the demographic that we may get when we go into actual trial. Though, we were in the actual jurisdiction. These were actually people who could potentially be called as jurors in a case like that where I was at. In every single case, once they got over the initial shock, the jurors, once we got all the way through voir dire and then opening, nearly every single juror… And I’m talking about maybe one in each pool was on the fence, but nearly every single juror said, “Can you give more? Can we give more than a 100 million?”

And I’m going to walk you through how we got them there in just a minute. But the reason I point that out is that I don’t want you to take the initial reaction of the jurors in this case to a $100 million as a negative thing. In fact, one of the reasons why I’m going to suggest… And again, every case is special. And so I don’t want you taking anything I say and using it, again, as a formula, you know I’m the anti formula person, and saying, “This is the way to do it.” All of these things are for you to consider in your own case. So, that’s my caveat here.

But in general, when you have such a big number, like 100 million or 340 million, I’m thinking Penn’s case. When you say it in voir dire, it’s such a shocking number that the brain, and you know that I read a lot on brain science, absolutely immediately starts to scramble for a reason. It says, “Okay, why are they asking for this number? There’s got to be a reason why they’re asking for this number.”

Now I’m going to come back to that in a minute, because you may be thinking, “Well, they may not think that.” In fact, this was the fear of the attorneys that I was working with this week. They may not think that at all, and they may just totally shut down. And I said, “Absolutely, that’s an option. They may shut down, but not if we do voir dire correctly,” which means a couple of things.

One, we didn’t say that number at the very beginning. Had we said that number before we created a rapport with the jury, before we got them involved in the case in terms of the principles in the case, and before we had even talked about why we were there, they absolutely would’ve stopped listening. But because we waited until the end, or near the end, I would say pretty much near to the end. We had already established a relationship and a connection with jurors so that we had enough credibility to say that number. Now, was it still shocking? Yes. But immediately, because we had created the connection and, by the way, the creating the connection is all done nonverbally.

That’s the work that I do when I go and I work with trial teams, is I help them get purposeful in their nonverbal communication so that they’re not doing things that inadvertently create separation between them and the jury. In fact, we do things that create connection that create credibility, that communicate safety. So that by the time we get to the money question, so again, there’s two pieces here. One is we’re communicating nonverbally on purpose and doing some very strategic, purposeful things so that the jury feels connected to us. And, second thing, we’re waiting until the right time to bring up the money question. If those two things are there, meaning you’ve got credibility, and connection, and you’ve waited until the right time, then once you say that big, shocking number, the brain will start to look for a reason. That will not happen if you do it too soon, and you have no connection or credibility with the juror. So that’s what I want to be really clear about, is because we set the groundwork by doing voir dire in a certain way, and in a certain pattern…

In fact, this attorney that I work with was actually very resistant when we started putting the voir dire together at the beginning of the week, saying, “This will never work.” And then, by the end of the week, he was like, “Oh my God, I was so wrong about this.” Because it’s a very backwards or… I don’t want to say backwards, but it’s a very different way, let’s just put it that way, of doing voir dire. But now, as he saw why we were doing it the way we were doing, and the result we were getting, he was absolutely sold on it. So, again, to get the brain to go into that, “Oh my God, there must be a reason for this number,” you’ve got to have the credibility and you have to do it the right time. So, I just want to put that out, there’s the two caveats to this. But going back to that idea of the brain, it starts to search its mental Rolodex and go, “Wait a minute. How is this?”

Now in this case, we have three cyclists, two that died and one that was injured. And so immediately, in all three juries, they started to say things like, “Well, this is for three people, right? And there’s kids, right?” Now notice, that did not come from us. And we had talked about some of the players in the case earlier in voir dire, but they start doing the math. Now, notice how that’s different. If you decide to say the number in voir dire, and it’s a big number, and so you break it up first. You say, “Well, there are six kids, and then there are two widows, and then we’ve got the surviving cyclist. And so that’s, let’s see, that’s nine people. Now and we’re asking 7 million for each, and 10 for…” You’re going to want to do that. And I suggest you do do that in closing when you break the number down. But just even just check in with yourself right now, as I’m doing that. It just sounds like a lot. You’re just throwing out all these numbers and you’re throwing out small numbers, by the way.

When you throw out the big number, without an explanation, the jurors start to create their own explanations. And the reason why that’s so important is then they start to rally around the idea of why you might ask that number and start to justify it to themselves, and that is exactly what we want them to do. That’s exactly what we want them to do. Now, don’t think that they have to absolutely, 100%, be behind the number before you get into opening. Because remember, voir dire, even if you do my issue-oriented voir dire, we’re talking about principles in the case and so on and so forth, they still don’t have all the facts. In fact, they hardly have any facts. So all we’re wanting to do in voir dire is to get them at least open to the idea and say the number so that it becomes less shocking.

And in fact, one of the things that I told the attorneys this week is keep saying the number. Once you’ve said it, keep saying it. So, for example, when he said $100 million, instead of saying, “Now, how many people here are wondering why we’re asking that number?” I want him to say, “Now, how many of you are wondering why we’re asking for 100 million?” Keep saying 100 million over and over again to make it normal and normalized. And in fact, in this case, it absolutely is worth more than that.

And that’s the second thing that we talk about with attorneys, a lot, in my work, is do you believe that number, in your tissue, in your heart of hearts? Because if you don’t, then we can’t do this. You know that I say “body language begins in the brain.” So if you are not totally, 100%, completely, till the end of time, believe 100 million. In fact, you should be saying 100 million in your lives every day. Wake up in the morning and say 100 million. Make that number. So freaking normal until it just rolls off your tongue because… It was interesting, one of the attorneys in this case came to me at the end of the week and he said, “You know the reason why I think I don’t ask for the money, now that I’m realizing it, in voir dire, is because I haven’t fully owned the number.” And I said, “That totally makes sense to me.”

So I’m not saying that’s always the case, that the reason you’re not asking for money in voir dire, the actual amount, is because you’re fearful. But I just would ask you to consider that option. That might be one of the reasons. So again, if it’s a huge number, like 100 million, then in general, I’m going to suggest that you throw that out there systematically, toward the end, after you’ve built some credibility and connection. Because the jurors automatically go into their mental rolodex and try to figure it out, and that’s a good thing. We want them doing that. We want them thinking through it.

In fact, voir dire is all about the jurors owning the ideas, giving us the ideas, shaping the conversation with things that they say, working with their source material instead of us trying to come in and lecture them about what this case is about. All right. So that answers the question of whether you should ask. It’s definitely dependent on your case, but one of the reasons to ask is to make the number less shocking and to have them start to figure out, in their own brain, why you might be asking that.

All right. So that’s the first thing. So the second thing we want to talk about is then, once we’ve got that number out there, what are we going to do with it? And how are we going to play with that? And how are we going to get the jurors to understand why we’re asking that number and why it is important for them to consider it as a real number? That we’re not actually asking for something and then really hoping for half, and all the things that you know we’re afraid of in voir dire.

Well, so here comes the passions question. So before you throw that number out, you can and should do all of the issue-oriented voir dire, money is separate from all that. So you’ve talked about all the principles in the case, you’ve got them rallying around different ideas, whatever your case is about, and now you’ve got them all on the same page, or many of them on the same page. People go, “How do you get the jurors on the same page? Come on, Sari.” Group dynamics, forming the group, create a culture, that culture starts to go one direction, they’re pretty much all going that direction. Then you’ve got some outliers. Anyways, that’s a whole other podcast.

But once you’ve got them all rallied around your idea, now is a place that you can use the passions question. Because here’s the thing, the passions question doesn’t work at the beginning as a “warmup question,” nor does the hobby question, or all the other things you guys know I hate. Because the jurors are in issue mode, meaning there’s two types of communication, you’ve been following the podcast. We’re either tending to the relationship or dealing with an issue. You want them in the relationship bucket at beginning, but they’re not there. They’re in the issue bucket. They’re wondering, “Why the hell am I here? And what do I have to do?” If you attempt to create relationship at the beginning by asking what books they’re reading, or what their hobbies are, or what their passions are, or whatever the hell else, you mismatch. You’re trying to be in a relationship, they’re in issue. Permission, if you had any in the first place, goes down. And remember, permission is how receptive someone is to you or your message.

All right. So if you start with that question, that’s what happens. But, if you’ve rallied them around the ideas, they’ve gotten to understand what the case is about, you’ve basically fed their need for issue. Once we get to the money question, you can start to prime the pump for, of course, non-economic damages, by saying, “Now, in this case, there are three people who have lost something very dear to them,” or you might say, “who loved to cycle. And they were on the road that day, doing that they loved. So, I’m wondering, what is something that you love, and something that you value?

Now, do you see what I’ve done there? First, I’ve connected it to the case. Okay. So, that makes sense to jurors why I’m asking. I’m not just coming out of the gate and asking what their passions are. I’m saying, “Hey, in this case, one of the things you’re going to have to decide is if what they valued is valuable,” basically. And that we, as a society, need to make up for that. First of all, that’s why I’m saying this to them, but then I makes sense of, “Now I want to ask you about things that you value. And so, juror number seven, would you tell me what you value?”

And it was so beautiful in the three juries, this last juries this last week, how we got some really wonderful stuff about what people valued and why they valued it. And of, course, family always came up. Family came up, family came up, family came up. And a lot of times people are going to say, “Well, outside of family and faith, tell me what you value.” Well, I’m telling you, the family piece is what really sold this case because after we primed the pump about all the things they value, and we asked them things like, “And what would that be like if you couldn’t do that anymore? Or that was no longer available to you?” And they would say, “That would that be awful. I don’t know what I would do.” So now they’re in that mindset of losing something they value, then we can go into the difference between price versus value.

Now, this is something that John Colletti, an inner circle member here in Portland, he and I worked up a case. And while we were working up the case, he went up and he spent a weekend with Paul Luvera, who we all know is a genius. And between the two of them, they came up with this idea of price versus value, and it’s absolutely great, and I have his permission to share it. But when he talked about this, it was the difference between what something costs versus what something is valued at. So when we talk about, for example, economic damages, what we’re talking about is price. What’s the cost of getting this person back on their feet? What is the cost of the lost future earning capacity? That is price. That’s something that you can figure out on a calculator, and pull out a number and say, “This is what it is. Check our math, jurors. This is the price.” But value is something absolutely different.

And so, one of the things that we do in jury selection now, and many cases when I use this price versus value, is we ask the jurors, after we have a conversation about values, what’s the difference between price versus value? Meaning what’s the difference between what something costs versus the value that it has? And a very interesting discussion almost always happens, because the jurors just get that immediately. They go, “Well, they have nothing to do with each other.” And we say, “Well, give me an example. What do you mean?” Well I inherited this heirloom from my grandmother. I’m sure it doesn’t cost very much, but boy, the value that it has for me is immense. If I lost it, I would just be devastated. And we’d say, “Great, give me some other examples.” And they’d say, “Well, my family. I can’t put a price on that, but the value to me is astronomical.” And you get them talking about the difference of price versus value.

And so when you go and you talk about the difference between economic and non-economic damages, you say, “Listen, you’re going to have to determine two types of damage here in this case, should you decide to be a juror on this case.” And, by the way, that’s some language that I use because I really believe in giving jurors choice, which I will do another episode on if you want to know more about that. I think it’s a huge part in terms of voir dire. But we say, “One type of damage is the price, it’s in the price bucket, and that’s called the economic damages. And that’s things like,” and then you name the things I just named: lost future earnings, medical bills, all the things.

And you say, “That’s where you, as jurors, can take out a calculator and check our math. We’ve got the numbers for you. We’ve got experts to tell you how we came up with those numbers. That’s the easy one, that’s the price. But you’re also going to have to determine another type of damage in this case, and that’s the value of what was lost. And that is going to be a different way. You can’t use your calculator here.” Because that’s what they want to do, don’t they? They want to start doing some mathematical calculation. Well maybe it’s like three times the whatever. And that’s where we start to get in trouble, isn’t it? Because then our verdict number starts to come way down, and that’s what we don’t want them to do. We don’t even want them to be in the same realm. One is price and one is value.

Now, one way you can do this is you can say, let’s say for example, it’s a wrongful death case. So you can say, “Can we all agree that money is not going to bring someone back?” And of course, the whole jurors, all of them raised their hand. They say, “Great. So in this case, though, you are going to have to put a value on what was lost. Yes, you’ll have the price, and all those things. Now, I’m not talking about that. Now, that’s over here,” and you walk over to one side of the jury box. “But over here,” and you walk on the opposite side, “is the value of what was lost. And so my question to you is, should you decide to be a juror on this case, how are you going to go about doing that?”

Now, what happens here is silence, and I want you to be prepared for it, because they don’t know how to do that. And we do that on purpose. They don’t know how to do it, so you want them thinking about how to do that. Now, when we discussed this with the attorney this last week, and he kept his eye contact on the jurors as this was happening, so it felt like a quiz. If you want to throw it out to the jury and just have them thinking about it, you’re going to want to turn your eye contact off and slowly walk in front of the jury with your eyes kind of facing downward so that it’s just a pondering moment. And then you might say, “Any ideas?” And what will happen is, if it’s like the hundreds of juries that I’ve been a part of, is they’ll say, “I wouldn’t know how to do that. I don’t know that you can do that. How do you decide what a life is worth?”

And once that comes up, “how do you decide what a life is worth?” or, “lives are priceless,” or anything like that, here’s what you do. And you say, “Well, I’m so glad you said that. Because who does decide? Who does decide what a life is worth?” And that they’re look at you confused and you say, “You do. That’s what our jurors do in our society. They set the value of what we, as a community, believe a life is worth.” Particularly life, in this case, and the lives that these men led in this case. And, boy, is that ever a moment, because the jurors just like, “Can I get that.” They’re like, “Whoa. Yeah.” And then you say, “So, I got to ask you, how are you going to go about doing that?”

And now they recognize that they have the power to do it. And they still might say things like, “Well, I don’t know, are you going to help me?” And you say, “Absolutely. We are absolutely going to tell you about how we came up with a number. But here’s what you have to understand, is that we’ve been on a journey with these people for years now, leading up to this trial. And so through that journey,” and this is maybe where you throw the number out, “we’ve decided that number is $100 million. Now, once you go on the jury with these people, you may decide on a different number. You may decide that it’s lower or that it’s higher, but that’s going to be your journey with these people.”

Now, once you say that number, regardless of where you say it in this process, you now have to do something else. You have to confirm sanity. So, watch the jury carefully. If you throw out $100 million, or whatever your number is, and they have a reaction, either verbally like, “Oh my God,” or you just see them stiffen up, that means they think the number is high, which they will, and that’s fine. I don’t want you to get all your panties in a wad about it, just notice.

Now, if you see that, then you want to confirm sanity. You want to say, “Now that’s a lot of money, isn’t it?” And they’re, “Well, yeah.” “Tell me about that.” And some people will say, “Well, gosh, that’s just more money than I can ever even imagine.” “Yeah. Yeah. What else?” And you get them talking to you. And that’s when you can either go in a price versus value, or we’re going to tell you how we came up with this number. And then you can go into some cause challenge stuff, like, “Now there’s some people here who, no matter what we show you,” because that’s the thing where you want to go, is where you say, “Tell me about that. What would you need to see to be able to even write that number on a jury form at the end of this? What kinds of things would you want to see at trial?”

And it’s so interesting when you ask that question because the jurors will be like, “Well, I guess I’d want to know what kind of people they were, and if there’s family involved, and what they were…” Just amazing things that you can now bring up, both in your opening and throughout trial. They’re giving you the way to win your case, people, and you’re not asking this question. “Now, what else would you like to see to even consider, not to give, to consider allowing,” not awarding, it’s not a prize, “this amount of money.” And they start telling you these amazing things. And, again, you get the jury to rally around that idea. You’re not saying, “I’m asking,, will you give me this?” I’m asking, “What would you need to see to even consider giving us this?” And then you can go in for your cause challenge. “Now there’s some people here who, it doesn’t matter what we show you. You’re like, ‘There’s nothing you could ever show me that I would ever consider giving that amount of money,'” and so on and so forth, you can go down your cause challenge there.

This is how you deal with money in voir dire. All of this really takes one thing, and that is to not be scared. That’s really what it is, is that you are so behind this number, and you so believe this is the right number. In fact, people always ask me, “What’s the right number for this case?” after we work it up and I said, “The right number is the number you can own, and not a penny higher, and not a penny less. What is the number you can own? Because if you can own that, you’ll get it.” I absolutely believe this case is worth 100 million, the one I just worked on, if not more.

And, in fact, in opening, when he said the number again, he said, “And the reason that we’re asking you for 100 million is because I don’t have the courage to ask you for what this case is really worth.” Boy did that hit the jurors and the gut. By the time we were done with the opening, nearly the whole panel, all three times, were in tears. That’s how powerful this case was that I just worked on. And that’s how much the attorneys believed in it. And in every voir dire we asked for the money, and at the end of every jury selection they asked, “Can we give more?”

Look, this is all about… I can teach you about all of the little nuances and things like saying you’re going to have to determine the millions, if not hundreds of millions, of moments that were lost. We can say that number as many as times as you can. There’s little fun things we can do like that to continue to desensitize the jury to the number. But what this really comes down to is, do you fucking own the number? Because if you do, and I just saw this last week, you’ll get it. We got it with all these mock juries, and I totally believe we’re going to get it with the real jury in trial in a month.

That’s how you talk about voir dire, is that you own the number and you’re not scared of it. And you’re not scared to flush it out with the jury. You’re not scared to have them be scared of it because they will take care of themselves if the group is formed, and that’s a huge piece here, and that’s why a lot of people come out and do work with me. They want to learn the group dynamics piece. Because a lot of this cannot be done when you’re doing your individual voir dire, and you haven’t formed a group, and they aren’t rallying around your ideas. Then all of what I’ve just said is moot.

It’s all about the group dynamics and yes, I know many of you’re like, “I can’t come out. I need to learn more.” Yes, the book is coming out. I’m sorry it’s been delayed. We’ve been talking about the cover for too long. And once the book comes out, we’ve got a membership coming out in January where you’ll be able to see me forming groups and teaching you how to do that. You’re going to definitely want to be on that list to get in the membership. We’ve got all that coming for you in the next four months. It’s coming. It’s coming. But until then, own your number. All righty. We’ll talk later. Bye-bye.