How do we move jurors away from the
survival response brought on by jury selection?
Learn how to "Provide Certainty" in order to remove the threat they face.
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You’re listening to From Hostage to Hero Podcast Episode Number 3 – Get To The Point.
Welcome to From Hostage to Hero, a podcast where trial lawyers learn how to free themselves and the jury. And now your host, Sari de la Motte…
Welcome to the From Hostage to Hero Podcast, my name is Sari de la Motte aka the Attorney Whisperer. I’m so thrilled that you’re here and listening; thank you to everyone who has reached out to say they’re following the podcast and are benefiting from the information. I love that
In the last podcast I I introduced you to the Five ‘P’s’; Things that will help us reverse the threat jury selection creates:
We tackled Preserve Status in the last podcast, so in today’s podcast, let’s move onto “Provide Certainty.”
Lack of certainty activates the survival response. Our brains are wired to view unfamiliar people and places with suspicion. If we don’t know what’s going on it feels unsafe. Until we can determine that something or someone isn’t threatening, we assume that it is.
Jurors have little to no certainty when it comes to jury selection. Lack of certainty begins the moment a prospective juror receives a summons in the mail. What kind of case will he or she be sitting on? How long will it take? When will I know if I have to be there? Once the day of jury selection comes there’s more uncertainty: what should I wear? Where is the courthouse? Is there parking? Once the prospective juror finds his or her way to the courthouse there’s even MORE uncertainty: Which line do I stand in? Do I have to take my shoes off like at the airport when I go through security? What room do I go to? Once they get to the right place are they then awarded with certainty? Nope. Now the waiting game begins. How long do I have to wait here? What are we waiting for? When is lunch?
But then when the jurors finally make it into the courtroom, branded with little stickers that read JUROR on them, they’re STILL not given any certainty. Now there are new people and new places to sit and an intimidating judge watching over the entire thing.
So what do most attorneys do once it’s their turn to talk to the jury? They try and “break the ice” by asking about a juror’s hobbies or passions or what books they’ve read lately.
Honestly, you’d think you were witnessing a first date, not jury selection.
Now, here’s what we have to understand Almost every communication situation tends to fall into one of two buckets: relationship or issue. Most attorneys strive to create a relationship in voir dire; they want jurors to like and trust them. I get that. But jurors have no desire to have a relationship with you. Remember, most jurors don’t want to be there at all. Attempting to create a relationship with jurors at the beginning of voir dire doesn’t work because jurors begin the process in issue mode. If we truly want a relationship with jurors, we have to start with issue-oriented communication.
Here’s an example from my own life. Years ago, an attorney friend suggested I make a connection with a friend of his. I reached out and she suggested I come by her office for a chat. I went, expecting the interaction to be a social call. But when I arrived she was ALL business. I was there for relationship, but she wasn’t having it. At least not yet. Now, I could have insisted on small talk and tried to steer the conversation back to our shared connection, but instead I picked up on her cues and communicated about the issue (she was interested in learning more about the workshops we offer). Once we were done discussing the workshop, however, she leaned back and asked me a personal question. That was my cue and she was now ready to go to relationship mode. Acknowledging her preference for discussing the issue eventually got me permission: she was now open to relationship.
Permission can be defined as how receptive people are to you and your message. Meeting people where they are is the number one way to increase permission. Gaining a juror’s permission is the true goal of voir dire, not trust. There simply isn’t enough time to gain a juror’s trust in voir dire, and attempting to do so can backfire.
So how do we increase permission and meet jurors where they are? By getting to the point.
Jurors are expecting the entire song and dance of lame jokes, being talking down to, (does anyone reallyneed an explanation of what bias is?) and attempts to get them to like you. When you refuse to do this and get to the point, not only does permission go up, but so does your credibility. You’re not what they were expecting. By getting directly to the point you communicate that you take this process seriously; and by doing so you teach them to take it seriously too.
Attorneys will often ask me how they should start voir dire, expecting me to give them some “technique” to warm jurors up and break the ice. They’re always surprised when I say, “This is how I suggest you start: ‘Good morning.’” They respond, “That’s it? Are you sure?” I say, “Well, ‘Good afternoon’ would probably be best if you don’t start voir dire until after lunch.”
But yes. That’s it. Why? Because jurors want certainty. Especially in a process that has the power to disrupt their lives for days if not weeks. Don’t waste their time!
Think of it this way: when you have to go and renew your driver’s license, back in the days when we couldn’t do this online, you dreaded going to the DMV, didn’t you? Why? Well, primarily because it took FOREVER. You’d arrive and grab a number that read “58” and look up at the number on the board and groan when you saw “32.” So you sit and wait. Every 20 minutes that goes by you start tossing things off your to do list for that day knowing you now won’t have time to do them. You read a magazine that’s so old it is discussing Brad Pitt and Jennifer Aniston’s break up. You try not to fall asleep. FINALLY it’s your turn. Now imagine walking up to the counter, greeting the customer service rep and have them say, “So before I get your new driver’s license, let me ask you, what are your hobbies?”
“What are my hobbies?” You think. “What the HECK does that have to do with getting my driver’s license? Are you insane? I’ve been waiting for over an hour! Just give me my license and let me get out of here!”
Attorneys! This is how jurors think.
You’re not at the DMV for relationship, and jurors don’t come to the courthouse for it either. And yes, I KNOW that we need jurors to decide really important things and share really personal stuff (I mean, having to give my weight for my driver’s license feels pretty personal, but, that’s just me), but even so: the way to get permission is to meet them where they are. They view jury selection about as highly as a trip to the DMV, so recognize that! Give them the certainty they need and they’ll more likely be willing to hear you out because you met their need.
Now, after saying good morning, or conversely, good afternoon, dive directly into your first context statement. For those of you who missed it, I discussed what context statements are and how to use them in the last podcast. Context statements not only protect status by giving jurors information and getting them on equal footing with everyone else in the courtroom, they provide jurors with that much needed certainty! The show is FINALLY on the road! We can finally talk about what we’re here to talk about! What a relief!
Now, let me just pause for a moment and say, this is ONE way to do voir dire. It’s not THE way to do voir dire. So, yes, please do share this podcast. Share these ideas. Come to my website, but don’t make me into what a lot of other trial consultants have become which is a person who says there is only one way to do things. Thank you very much. This has been a public service announcement.
Besides getting to the point, there are other ways to provide certainty for jurors. For example, avoid legal jargon as much as possible. Using language that jurors don’t understand threatens both status AND certainty. How? Well, status…”If I don’t understand the word, that means I must be stupid!”…that’s how we threaten it there. And certainty because it creates confusion. That’s the opposite of certainty.
We tend to think that jargon makes us sound more credible, but it actually creates a barrier. Most lawyers don’t even realize they’re using jargon. And yet one of the things I spend a lot of time on when helping create voir dire or opening is “de-lawyerizing” the verbiage. And it’s not just jargon either. Complicated language of any kind confuses jurors and adds to the lack of certainty.
Talk like a juror talks and use language they use. Instead of saying “plaintiff,” say, “the person who was hurt.” Instead of saying, “damages,” say, “money.” Instead of saying, “the vehicle in which she was operating,” say, “the car she was driving.” Simple language that gets right to the point helps create certainty for jurors.
In addition, define anything you think jurors would find confusing or not be familiar with. For example, in a recent case the attorney was telling a story and used the term “moon jump.” I had to stop him because I had NO idea what a “moon jump” was. He then explained he was talking about a bouncy house. Ah! Once he said bouncy house I could see that in my mind. But when he said moon jump before, my brain immediately began searching my mental rolodex for an explanation of what that could be and I ended up missing a few paragraphs of his opening. Be VERY careful to choose words that jurors understand without a doubt OR define terms if that can’t be done.
Finally, you can provide certainty to jurors by proving to them though everything up to this point has been uncertain, they can count on you. Communicate confidently with good breathing. Pause long and often. Listen intently. Move in the courtroom with ease as if you belong there, because you do. Show the jurors that you will be there to show them the way. When you communicate through words (getting to the point) and actions (confident body language) that the show is now on the road and that jurors can be certain IN YOU, your permission will go up as the juror’s fear goes down.
Preserve a juror’s status. Provide them with certainty. Next time we’ll talk about the third P: Protect a juror’s autonomy.
Until then, visit our website at attorneywhisperer.com and click on the trial consulting tab to see a variety of ways to engage with me including access to my free Trial Tips video library. You can also click on the links in the show notes to get direct access. In addition, don’t forget to check out my podcast for speakers of any stripe: Sound Check. The link to sign up for that podcast is also in the show notes, or just click on the podcast tab up in the menu on the homepage of our website.
Have a trial coming up? Schedule a free 30-minute consult with me to talk about the issues in your case. The link to do this is on our website and also included in the show notes.
Until we meet again, I invite you to Find Your Voice and Speak it Powerfully. Thanks everyone for joining us!