Sari de la Motte:

Exclusionary voir dire is dishonest. Yep, it’s dishonest because you don’t come out and say, “Here’s how this works.” You’re listening to Sari Swear on the Sari Swears podcast.

 

Well, welcome everyone to another episode of Sari Swears. I have a very special guest today and that is Coco, or as I’ve been calling her the velveteen rabbit. If you can see, she’s got this kind of weird patch and there’s another one on the other side where she’s been itching. This kid is just itchy. And she doesn’t do that Frenchie thing where they ooh. She just barks. So we’re hoping she’ll stay quiet today and let mama do her podcast. But anyways, welcome, welcome. I’m taking on a big one today, folks. Seven reasons why you should stop doing exclusionary voir dire. I know, I’m wading into it with this one.

 

So first let’s start by talking about why you do exclusionary voir dire. Well, obviously it’s because it’s an exclusionary process in that you are excluding who you don’t want on your jury versus choosing who you do. Even though jurors don’t understand that, they think that you do get to pick who’s going to be on the jury and who’s not going to be on the jury. As we all know, it’s not like that. You’re going to exclude people from the jury. And obviously because that’s the process, that’s what you’ve been trained to do. But I’m here to say that just because we can only exclude jurors in terms of the process of jury selection doesn’t mean that we should only do exclusionary voir dire. In fact, so many of my clients are now not even doing cause challenges because we know that in terms of voir dire and jury selection, and preemptories, and cause challenges and all of that, there still remains the fact that this is just a free for all.

 

You can say that you did a really perfect job on exclusionary voir dire and we still get the jury that we get. And who the fuck knows, right, what’s going to happen in terms of those people, especially how I see exclusionary voir dire done or even not how I see it, but the limits of exclusionary voir dire, which is we kick all these people off and then we just make do with the people that are left.

 

So this is a problem for two main reasons. One, we are missing a huge opportunity and two, you are hurting your case by doing exclusionary voir dire. Yeah, that one got your attention, didn’t it? We’re going to talk about both of those in the seven reasons why you should stop doing exclusionary voir dire, but exclusionary voir dire is very limiting. And so I want to talk today about why you should stop and what you should be doing instead, although we’ll spend less time on that second part than we will on the first part today because we have limited time and you know that I’m talking all the time about what you should be doing instead.

 

All right, so number one, and I don’t mean number one like this is the most important thing, just it’s the first of the seven. Exclusionary voir dire, although it might be the most important one, exclusionary voir dire legitimizes defense arguments. Listen, we spend all of this time trying to make sure that the jurors do not buy the defense’s version of events. And then we do an exclusionary voir dire process, which before trial even starts, legitimizes the defense arguments. You say how? Well, I’ll tell you how.

 

First off, the primacy, recency rule. The first thing out of your mouth is almost always asking about whether they believe in defense points. It always reminds me of the story that you probably heard me say before, which is where I was on a podcast and the host said, “In my last trial, I said,” one of the first things he said was, “My client is a Muslim. What do you all think about that? And I got like eight jurors off for cause.” I can’t remember the number, but he thought it was an amazing number. And he said to me, “What do you think about that process?” And I said, “Well, I think that you just made your case about the fact that your client’s a Muslim. Is that what your case is about?” And he said, “No.” And I said, “Well, that’s what the jurors think it’s about.”

 

Think about this. They have been sitting in a room sometimes for hours and hours not understanding what they’re here to do, how long it’s going to take, whether they’ll get chosen, what the case is about, all of the things. And the first thing out of your mouth, they’re so hungry for knowing any bit of information about what this case is about. And the first thing out of your mouth is normally a defense point or something that’s as stupid.

 

And again, I’m not calling you stupid. You all were trained to do this or watched other people do it. So I know that you’re grasping at straws for how to do this voir dire process, but the stupid thing is asking their hobbies, or their passions, or their bumper stickers, or what they’ve read and then trying to divine what that means in terms of whether that juror is a good juror for you or a bad juror for you. But here’s the point, is that what you focus on, you make important. And if you come and you spend the majority of your voir dire, and even if it’s not the first thing that you say, but if you spend the majority of your voir dire talking about defense points, talking about who here cannot give money, not who here can, but who here cannot, what you’re doing is making the case about the defense points. You’re saying these points are so important that I’m going to spend the limited time that most of you have in voir dire talking to you all about their case.

 

It reminds me about the client that was here for one of our command the courtrooms and he said, I just heard him over talking in a group, a small group when they were working and he said, “I just don’t understand it. I had this case that I just got a defense verdict on and there was one issue that we really needed the jurors to go our way on. And so I voir dired on that issue and I spent most of my opening on that issue and I spent most of my closing on that issue.” And then he saw me kind of come around the corner and this dawning realization came over his face and he was like, “Oh.” He had made it so important that the jurors had no opportunity but to find for the defense because nonverbally and verbally he’s communicating, “My case isn’t important. I’m going to spend all of my time talking about their case.”

 

Now, you tend to tell yourself, “Well, I’m talking about their case and how it’s wrong.” Not in voir dire you aren’t, but the rest of trial. But the fact that you’ve started with it means that you find its most important. And most of trial, even when you’re defending the defenses, meaning you’re trying to say why they’re wrong, it’s kind of like in manifesting circles, if you believe in manifesting, that they always tell you, “Don’t say what you don’t want.” Right? I don’t want to go bankrupt or whatever because the brain doesn’t hear the don’t. It just hears, I want to go bankrupt, right? I don’t want to be homeless. I want to be homeless. It kind of just skips over the negative. There’s some brain science around this too. It’s the same thing here. You think that you’re saying defense argument is bad and all they’re hearing is defense argument because you’re spending all this time on it.

 

Maybe this is the number one reason why I don’t want you doing exclusionary voir dire. It’s just giving all of this air time to defense arguments. Listen, you set the tone at trial. Your case, who said this? Your case is what you talk about. There’s a better way of saying that. There’s a cute way of saying it, but basically whatever you focus on, you make important. You get to decide what the jurors hear first. That is such a huge opportunity that we are squandering by spending all of our time on defense arguments. That’s my number one. I’m going with it.

 

Number two, I don’t know if this is number two now, but you know what I’m saying. That other one is pretty important. Exclusionary voir dire is dishonest. Yep. It’s dishonest because you don’t come out and say, “Here’s how this works. I’m going to ask you all these questions to find out which one of you is, and probably most of you, are against me, and then I’m going to kick you off this case.” You don’t say that.

 

You come out and you say, “You can trust me. I’m just going to ask you questions to find out if this is the right case for you.” I hate that saying, by the way, the right case for you, like if this is the right shoe for you. They’re not shopping for a case. They haven’t come down to the courtroom on an afternoon to shop around for the best case. I mean, when you say that maybe there’s a better one down the hall, the jurors are like, “What the fuck are you talking about? I don’t want to be here at all.” So it’s dishonest. When you say, “You can trust me,” and all the while you’re thinking, “But which one of you motherfuckers is going to kill me because I’m going to kill you first?”

 

Listen, they pretty much debunked that 95% of your communication is nonverbal. We know that a majority of it is, but the bigger research now tells us that if there is a mismatch between what you’re saying and what you’re communicating non-verbally, the listener will go with the non-verbal message every single time. You cannot hide your actual feelings for jurors by saying something different. It’s dishonest.

 

And in addition, that takes me to number three, which is exclusionary voir dire creates the wrong mindset. It’s dishonest because you actually feel fear. You are scared of these jurors and exclusionary voir dire fits into that mindset. It says you should be scared of these jurors. There are people here that want to fuck you. And so that creates a fear mindset. When we have a fear mindset, we’re not going to do the things that trial and winning trial requires that we do. Taking risks, swinging out, trusting ourself, the process, jurors. We won’t be able to do that when we have a fear mindset.

 

Not to mention that when you have a fear of someone else, that immediately creates a defensive position. If you believe that these people want to hurt you, and by the way, they don’t, but if you believe that these people want to hurt you, you’re not going to want to help them. For example, the entire H2H voir dire process is jury centered. It’s all about how do we remove any and all obstacles from our jurors doing the right thing, which is finding for us, because that is the right thing, and I’ll talk more about that in just a minute, but it’s all jury focused. It’s all centered around the jurors, making them comfortable, getting them to breathe, getting them to relax, removing obstacles, making them right whenever possible. And most of the time, that’s all the time.

 

But if you believe that they’re there to hurt you, you won’t want to help them. And everything that you do is going to come from a defensive mindset. That’s why during trial, you are spending the majority of your time defending the defenses and telling the juror why what the defense saying is wrong. Nevermind that we rarely spend any time talking about why we’re right. We’re spending most of the time talking about why they’re wrong and any airtime is airtime. It’s like negative press. All press is good press. Any time talking about their part of the case and what they’re going to say is saying, “This is important.” So this mindset of fear is lending itself to being defensive in trial. And that is not a position, by the way, of confidence.

 

Sari de la Motte:

I have some bad news for you. Yep. Your opening, it’s fucking boring, especially if you’re standing there with a legal pad, reading off defense point after defense point. You’re going to ruin your opening and lose the room in a matter of seconds. But guess what? I can help, me along with 11 other attorneys, that is, when you come and get a seat at our small group command the courtroom opening masterclass. Listen, you’re going to get a chance to put together your very succinct and awesome 30 minute opening, get on your feet and get practice and feedback from yours truly if you attend and get one of these seats. So what are you waiting for? Go to sariswears.com/opening and grab one of the remaining seats for our upcoming opening masterclass. See you there.

 

Sari de la Motte:

This brings us to number four, the fourth reason why you should stop doing exclusionary voir dire, and that is it fucks your story. Exclusionary voir dire fucks your story. We know that in trial, the best story wins. It is a battle of stories, which story they’re going to believe, but most of the time we don’t even have a fucking story to tell. We haven’t spent enough time crafting our story. Even if we have spent time crafting our story, we don’t trust our story. And when we don’t trust our story, we don’t tell our story, we don’t stand in our story, we don’t stand in our truth. And on the fact that we stand on the side of the right, because we do, we still come in and give them all the airtime because we’re still in the mindset of there are people here that want to hurt me.

 

Not to mention that when you do exclusionary voir dire, due to that primacy piece and that you get to go first, exclusionary voir dire is built around the premise that you want to throw out defense points and see who agrees and that right there you’re not putting your trial story out there. This is conditioning the brains of the jurors’ to be defense-oriented because you have fucked the opportunity that you have to put your story out there and you say, “Well, sorry, we can’t really talk about evidence.” You can still put your story out there without evidence.

 

In the H2H method, it’s all principle-based. All of your cases come down to principles. And when you put the principles out there, the jurors rally around those principles because what is a principle? It’s a fundamental truth. 99% of people believe them. And so when we come in with our story, we have that primacy going for us and now we’ve conditioned the brains of the jurors for us versus for the defense, right? That fear leads to defending defenses, as we’ve talked about, instead of getting our story out in front. We don’t want to lose that opportunity, but exclusionary voir dire pretty much guarantees that you won’t get your story out there.

 

Number five, exclusionary voir dire does not build a team. Let’s go with this concept again, that if you believe these people are out to get you, the last thing that you’re going to want to do is form them into a group. I mean, think about this if we’re talking about actual enemies. Let’s say you have an enemy in your friend group, and an enemy at work, and you have an enemy in your family. I mean, the last thing you’re going to want to do is get those three people together so that they can form whatever it’s called against you, right? You don’t want to put them together.

 

And so of course, if you think all of these people are against you, you’re going to resist forming them into a group because that’s going to be scary as fuck. But group formation is one of the very things that you can do in voir dire. You can only do it in voir dire. And if you’re missing out on that opportunity, you’re missing out on having a formed group. And why are formed groups so important? Well, it’s much easier to get a verdict from a group versus 12, or six, or eight individuals, for one. Form groups create a culture so they can tell you if you should shut down a juror or if you should let them keep talking. They’ll help you in so many different ways. It’s easier to read a formed group. So many things. Formed groups create their own safety, formed groups have better deliberations, all sorts of things, but you’re not going to want to form them if you believe that the jurors are out to get you and that they are the thing that’s wrong with this process. Of course, you’re not going to want to form your group.

 

And when you’re dealing with exclusionary voir dire, you’re not focusing on the people, the very people who can help you. I’ve said this 100 times, but I’ll say it again. It’s like putting out an ad for a new paralegal and as the applications come in, all you’re doing is scanning through them looking for the paralegals you’re not going to hire. What the hell kind of sense does that make? That’s not going to help you find the right people. When you do an H2H voir dire, you’re going in and you’re saying, “My people are here. Where are they?” And you’re searching to find them versus getting rid of all the people that are not going to help you and then shrugging your shoulders and saying, “Well, I guess I’ll take everybody else. I mean, that’s basically all I can do at this point.” It’s a terrible, terrible way to build a team.

 

And I know a lot of people out there talk about you got to build a team in voir dire, but you’re not being shown how to do that. And I’m here to say you cannot do that with exclusionary voir dire. It’s just not built to facilitate that. You can’t do it. Number six, exclusionary voir dire, if you do that, is a missed opportunity to make defense points sound ridiculous. So if you’ve been around here for a while, you know that the only time we talk about defense points in our voir dire is during the devil’s advocate question where once the jurors have given us the principle, we then say, “Yeah, but I mean, trucking companies are there to make money. They can’t spend all this time on training, right?” And we take a defense oriented, maybe that’s not what they’re coming out to say, point and we make it sound ridiculous.

 

You cannot make, this is the other thing with exclusionary voir dire. You cannot make defense points sound ridiculous in exclusionary voir dire. Why? Because your entire purpose in exclusionary voir dire is to find out who believes those things. And so right there you have to legitimize the defense point because if you make it sound ridiculous, like I just did with that tone of voice, right? But yeah, but then nobody’s going to want to identify with it and say, “Yeah, I believe that.” So the whole point of exclusionary voir dire is to make them feel very comfortable agreeing with defense points. And I know you’re saying sorry, but isn’t that what we want to know? Listen, you think that voir dire is a zero-sum game, that it is black and white, that if you ask a question defense-oriented and people say, “Yep, I believe that boo, boo ya,” is what I meant to say. “You did something great. You found your rat and now you’re going to kill them.” I’m here to say you did no such thing.

 

This is where most people go wrong when it comes to voir dire, is that these people, you have no concept of what’s going on in their brain. Their prefrontal cortexes have gone utterly offline. They are in survival mode. They are not breathing. They are there by themselves. They don’t know what they’re supposed to do, when they’re going to do it, all of the things. And so they’re going to say things that they may not even believe just to be part of the group or because they think that’s what you want to hear, whatever it may be. This is not as clear as you think that it is. So no, we’re not like, yay, we found that out.

 

All I found out is that they said something to agree with you at the beginning and now I have a defense oriented voir dire, which in my mind is why we’re losing so many plaintiff cases. 50% last time I looked, 50%. You got a 50, 50 chance of winning your case. If you’re doing med mal, it’s even worse. I mean, come on now. This is basic social science, but nobody is fucking talking about it. You’re all trying to get all clever with your exclusionary voir dire and you are missing the goddamn point. The defense, we can’t make it sound ridiculous in exclusionary voir dire, but in H2H, that’s all we do. Anytime we talk about a defense point, we make it sound ridiculous.

 

Number seven, it is also, exclusionary voir dire is also a missed opportunity to influence. Now you know I don’t deal in influence or persuasion very much, but the one thing I do talk about a lot when I’m talking about this thing is Cialdini’s concept of public commitment. Cialdini is the grandfather of influence. And he says that when people make a public commitment, they’re much less likely to go against what they said publicly later on. Don’t we want jurors to say plaintiff friendly things in voir dire so that when they are back in the jury room, that they are likely to stay with that versus having your jury say mostly defense-oriented things, which same thing applies there, that they will keep to that later in the verdict room? Not to mention the reason why we have jurors give us the principles in voir dire by using the H2H voir dire method is because we know that everybody believes one person above all other people and that is themselves. And so I want jurors to tell me the principles in my case because then they came up with it.

 

And it’s not a gimmicky thing. It’s not we’re getting them to say something they don’t believe. These are principles. 99% of people believe them, but if they say them, there’s ownership. And if they say them, they’ve made a public commitment. We’re missing that opportunity when we do a defense oriented voir dire, which is what exclusionary voir dire is. Now I said there were seven reasons I want you to stop doing exclusionary voir dire, but there’s really an eighth. Here’s a bonus one for you. Another reason why you want to stop doing exclusionary voir dire is because it is not fun at all. It just isn’t. Most people, when they come to H2H and they learn the H2H method, they say, “This is so much more fun. It’s more freeing. I’m not scared anymore. I’m more trusting. I trust that the jurors want to get it right,” which they do by the way.

 

So what do you want to do instead? You want to do a principle-centered voir dire because here is the fundamental truth, the fundamental truth, the principle of all principles in plaintiff lawyer world, and that is that you stand on the side of the right. You stand for families, and spouses, and loved ones, and work that’s enjoyable, and hobbies, and mobility, and you stand against betrayal, and lying, and trying to get away with something, and coverups, and all the other things that the defense does. When you focus your case on principles, because all your cases are about principles, you can trust the jury. And if you’re worried about outing your jurors to the defense because then they’ll kick them off, listen, they can’t kick off the whole panel. And what you’ve done is you created that tone, you set that tone that we talked about and you put your story out there and that is winning the day. We’ve seen it over and over again.

 

And not only that, it is creating a better experience for you as a trial attorney and for sure as fuck for our jurors because they enjoy principle-centered voir dire as well. We’ve interviewed our mock jurors and they said, “I’ve never seen anything like this. It was so much more enjoyable,” those that had gone through jury selection before.

 

So I hope you consider stopping exclusionary voir dire and moving toward principle-based voir dire. If you want to learn more about the H2H voir dire method, you can go to sariswears.com and you can join the H2H crew while you’re there or come to a command in the courtroom masterclass. I hope to see you soon. Talk next week. Bye-bye.