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Over the last couple of months, I’ve been outlining the path to mastery in the courtroom. First, you must recognize that jurors are hostages, but you also need to realize that you are a hostage too. Second, you need to understand that your role changes as the trial progresses, all leading up to the ultimate task of becoming the hero jurors need. Third, you must reckon with the fact that your nonverbal communication has a significant impact on how you step into those critical roles and that you must increase your nonverbal intelligence.
But there’s something else; something beyond tactics and skills, beyond theory and technique. In fact, this something is so critical that if you don’t address it, all of your other work combined will never have enough power to get you to mastery. And here it is: If you are not dealing with your mindset you will derail your path to mastery. If you’re honest with yourself, aren’t there times in your life – big, small, in between – where there’s been a voice in your head that causes you to second guess, to doubt? A voice that says you’re not enough, that you don’t have what it takes? Of COURSE you have. We ALL have. But here’s the real kicker. Even though that voice in your head SOUNDS like you. It’s not. It’s not you at all. Would you ever talk to anyone the way that voice talks to you? No. That’s how you know it’s not truly your voice. It doesn’t fit within your character at all. So, why is it so easy to think that, contrary to your character, you would so easily talk to yourself in that tone? That’s right. It’s not you at all. It’s the voice of the saboteur. Within us all, over time, that super-personalized voice of the saboteur has taken stake of our minds and feeds us messages when it feels threatened. It hates change of any kind and wants to keep you comfortable and tame. Your saboteur is full of limiting beliefs that keep you in a frantic place; a place where you have to zoom from CLE to CLE, from book to book, from webinar to webinar, just looking for “the right way” that will help you finally achieve the greatness of folks like Gerry Spence and Nick Rowley. It’s time to call bullshit on that saboteur! Stop listening to that voice. Learn to listen to the voice of your inner leader instead. It takes nurturing and diligent coaxing to get that voice to be louder than the saboteur, or at least present enough for you to recognize it and give it the floor when the two are vying for attention. The saboteur must be put in its place in order for your inner leader to take the wheel and take you down the path to mastery. Now before we talk about how to get your mindset right, there’s something else you need to do.
You’ve got to increase your IQ. No, I’m not trying to low-key insult you. I’m not talking about your smarts. I’m talking about NONVERBAL intelligence. I doubt any of you woke up this morning thinking, “You know what I need? I need to increase my nonverbal intelligence!” Of course, you didn’t. But that only proves my point: nonverbal intelligence is one of those things that you don’t realize you need until it’s pointed out to you. On the flip side, how many of you wondered today why that conversation with your spouse didn’t go the way you thought it would, or why your paralegal bristled when you asked a totally benign question? Or did you notice that your colleagues kind of zoned out during your presentation yet you didn’t know how to get them excited about the topic? All of these scenarios could be improved or avoided all together with nonverbal intelligence. You communicate nonverbally. All day. Every day. But are you communicating on purpose? Or are you leaving the main portion of your communication to chance and just hoping that your audience is getting the message you are intending? Nonverbal intelligence is measured by the content of your message, how you deliver your message, and (often neglected or overlooked) how your message is received. To improve in these three areas, you must be:
Each of these requires unpacking and practice. We’ll be talking about this more and providing opportunities for practice in the next couple of weeks. In fact, this October we’ll be launching a platform where you can regularly practice, get feedback and get personalized coaching within the “H2H Membership.” If you don’t want to wait til October, however, you can get in on the Founder’s Launch! We open July 27-31. In fact, that whole week we’ll be giving demonstrations of nonverbal communication coaching in addition to mindset coaching, case workshops, voir dire circles, and other essential training. That will all happen in the From Hostage to Hero Facebook Group so make sure you’re part of that community. JOIN HERE. Want to volunteer to be coached or to bring your case to a workshop? SIGN UP HERE. For a list of all the training/coaching opportunities and to get registered to attend, CLICK HERE. Last week I had you take a little quiz. Let’s review:
Your answers to these questions only served to highlight the fact that YOU are a hostage too, and, as we know, hostages can’t save other hostages. Only heroes can. So how do you stop being a hostage and become the hero jurors need? If you’re looking for a magic spell and a wave of a fairy wand, you’ve come to the wrong place. It doesn’t exist. There’s not a quick fix. It’s a path, a process, a transformation. HOWEVER, there are immediate things you can do right now to start your path and see results as you cast a vision towards what will be. First, you’ve got to show up for yourself! You’ve got to dig in and be ready to look inward, to evaluate, to name your limiting beliefs and learn to identify your most powerful self. I swear this isn’t some woo-woo bullshit. If you don’t show up for yourself and do the personal work, how can you ever expect that your jurors will show up for you? Dig in. Step up. Do the work. I’ll help you. Second, as you’re shifting your mindset and are stepping into your power, you must also recognize how your role is ever changing and therefore requires adept, agile-like moves on your part. Your transformation is not private. It’s public. In the courtroom. You adapt to the demands and you follow the path: It’s important work. It MUST be done, and you’re the one to do it. In the weeks to come I’ll give you some tools to add to your belt and we’ll work on some of the necessary skills to help you as you transform from hostage to hero. Regardless of where you are on your journey with me, you can pretty much gather that my teaching focuses on the fact that jurors are hostages. I mean, the title of my book and my podcast are dead giveaways – From Hostage to Hero: Captivate the Jury by Setting Them Free. I’m not keeping any secrets. Jurors are hostages. We know this because the jury selection process puts their brain under attack. In that setting they have no status, no certainty, no autonomy, no relationships, and the entire process seems totally unfair. Take a minute to think of specific examples of each of those “brain attacks” and consider how any one of them might give the jury hostage status, let alone all FIVE.
Yikes! They’re going to need a hero and that hero MUST be YOU! However, trial kidnaps a second victim, and that victim is you. You are ALSO a hostage. Sometimes you’re too close to the process to be able to see it for yourself, so let’s just take a little quiz: What is your status in the courtroom as a plaintiff attorney? Do you have certainty about which method works best? Do you get to decide how the jury decides or must you also give up your autonomy? How many jurors do you have a relationship with? And let's be honest, isn't the system unfair? Do you see it now? You’re a hostage too. But the good news is, you don’t have to stay one! But you must set yourself free before you can set others free. Hostages can't rescue other hostages. Only heroes do. Follow along in the weeks to come as I discuss the necessary steps to gain freedom and become the hero jurors need. Many of you are coming around to the idea of shifting your focus in voir dire from trying to figure out who your "bad" jurors are to focusing on finding your "ideal" juror instead. What you focus on, you create. If you look for ideal jurors, I firmly believe you'll find them. That said, some of you have asked the question, "Won't identifying my ideal juror cause opposing counsel to kick them off?" And the answer is: Yes, it might. But you don't need to worry about this if you've formed the group. One of our primary needs as humans is a sense of belonging. Humans crave feeling like a part of a group. When you get jurors formed around the principles in your case, you create a group dynamic. That group dynamic exerts influence on the members. In this way, then, you are looking for your ideal JURY vs. your ideal JUROR. In other words, once you figure out what principles your case centers around, and you get jurors rallying around those principles as a group, opposing counsel can kick off members of the group but it won't matter, because the group still remains. It's group formation you're after, not convincing individual jurors to vote your way. Get the group formed and ready for battle and any attempt of opposing counsel to kill individual soldiers won't do much good. Give this podcast a listen to learn more.  Ok, it's January 6th, so maybe you've already planned your year, but if you haven't, I've got five essential questions for you to answer before you do. When most people plan their year, (or New Year's Resolutions or what have you) they start by what they want to do or accomplish. I suggest you start with a different question. Question #1: How do I want to be this year? All doing flows from being. Meaning, however you "are" is what you will produce. Frantic, frazzled and panicked? You'll produce frantic, frazzled results. Start your planning by asking yourself, "how do I want to be this year?" For me, I want to be calm, at peace and have lots of space. That informed how I put my schedule together.  Question #2: What's my theme for the year?
Once I decided I wanted to be calm, at peace and have lots of space, I asked...why? And the answer was because I had had a pretty frantic year of getting my book done and edited and to print and it was time to settle in for some development; of myself, of my business and of the From Hostage to Hero brand. So that became my theme for the year: DEVELOPMENT. All of my scheduling choices now flow from that question. Is this something that will develop me or my business or From Hostage to Hero? If the answer is no, I don't make time for it. Question #3: How can I schedule this? It's one thing to decide how you want to be and what your theme is, but now you need to bring it into reality. For me, I need space to develop. So, I created a schedule where I have lots of down time so I can study and work on my business. Whatever you decide, carve out time for you FIRST, and then add in all of your other obligations. Question #4: What are my routines? As you're scheduling, don't forget about routines that help you attune to yourself. What do I mean "attune?" Routines that help you feel your best and center you for the work you have ahead of you. For me I have a morning routine that includes morning pages, (see Julia Cameron's Artist Way) journaling, exercise and meditation. I also have an evening routine that includes online courses, a quiet time ritual, reading and stretching. These don't have much, if anything to do with "development" they’re just for me. I suggest you decide on some routines you can count on as you move through your year as well. Question #5: What are your boundaries? Once you've scheduled out your life to reflect how you want to be, you need to decide on your boundaries. What will you say yes to? What will you say no to? Creating a litmus test can help. For me, before accepting any gig or client I ask myself four questions: 1. Do I want to do this? 2. Does it fit my schedule? 3. Does it advance my goals? 4. Does the money make sense? If I can't answer at least three questions affirmatively, I don't even consider it. I have other boundaries too; I only ever work one weekend a month. I only see a certain amount of clients each day, etc. What are YOUR boundaries? 2020 vision is seeing clearly. Let 2020 be your year to get focused and living a life YOU'VE designed instead of merely reacting to all of life's challenges and waking up 20 years from now in a life you don't enjoy or recognize. Happy New Year! Give this podcast episode a listen to learn more. If you've been following me for a while, you know I love thought work. Choosing how you think affects how you feel, which governs how you act which determines your results. But just because we can choose our thoughts doesn't mean you'll never feel pain. Sometimes life is painful. What I'm concerned about is when you cause yourself unnecessary pain. For example, when you lose a trial, it often hurts. And that's normal. I'm not suggesting that if you just thought about it differently, you'd stop feeling the pain of losing. What I am suggesting is that you add to your distress when you beat yourself up, tell yourself you're a terrible lawyer, freak out and never go to trial again, etc. All of that is unnecessary pain. Isn't this job hard enough? Why add unnecessary pain to an already painful career? Here's the deal: most of you fall into one of two camps: you either go out there and fight and then when you lose, cause yourself the unnecessary pain I just described, or you AVOID pain by living small and not taking risks or chances. Neither is good. The path to greatness begins when you take courageous action knowing it may cause you pain. And when that pain comes, you feel it. You don't drink it away, eat it away, sleep it away or otherwise shove it down. You accept it and let it be.  Learning how to BE with your pain is where things get good. The "greats" have all accepted that pain is a part of life and instead of avoiding it, they accept it as part of the deal.
Stop avoiding pain by playing small or adding pain by beating yourself up and instead, embrace the pain that life (and this career) naturally brings. You'll be much happier, I promise, when you can learn to live with pain instead of attempting to outrun it all the time. Give From Hostage to Hero Podcast "Episode 44-How to Deal with Pain" a listen to learn more.  When I first got into trial consulting, I continued to hear, over and over again, how much lawyers hated voir dire.
This made no sense to me at first, because voir dire seemed like the one part of trial that was unscripted and "loose" and, therefore, "fun." Ha. Hahahaha. That's exactly the reason it scares most lawyers. The very fact that voir dire is unscripted is what makes the entire process frightening. However, the fact of the matter is that voir dire isn't totally unscripted. You can create the questions you plan to ask jurors; you just don't know what they're going to say in response. It's follow-up that's the problem. Never fear! There are really only three questions you need to have in your repertoire to follow up with jurors. And they are...(drumroll please...) Tell me about that. What was that like? How important is...? Think about it. You can follow up with any juror about ANYTHING using one of these three questions. Say you begin with a question asking if anyone has ever been in a car crash. You call on a juror. JUROR: "Yes, I was in a car crash." YOU: "Tell me about that." JUROR: "Well, it was back in 1995. A car hit me from behind." YOU: "What was that like?" JUROR: "It was awful, I had back pain for about a year after that." YOU: "Tell me about that" or "What was that like?" JUROR: "It was really hard. I had to miss work for 3 weeks." YOU: "How important is... it for [drivers to keep their eyes on the road], [insurance to pay when you've been injured] etc. BOOYA. "Tell me about that" is a way to elongate the conversation. It can be used nearly anywhere. (Thank you Don Keenan.) "What was that like?" is a way to navigate the juror's experience. "How important is..." is a great way to get at the principle behind what you're talking about. Follow up using these three questions. Anytime you're stuck, pull one of these questions out of your back pocket and you'll be good to go. You're welcome. Listen to this podcast episode to learn more. I've been going through a major transition lately. (No, not menopause. But that's right around the corner, thanks for asking.) And let me tell you, I'm not a fan. (Of transitions or menopause.) That's not entirely true. I LOVE starting things. And being in transition means that something new is coming. But unfortunately, transitions also mean something needs to end. In fact, that's where all transitions begin: with an ending. Phase #1: Endings Most people don't like endings. Unless it's the end of a long boring speech or a terrible movie, we avoid endings because they're uncomfortable. I remember avoiding an ending nearly every summer of my childhood: leaving Finland. All of the relatives would come to our cabin to say goodbye and line up to give hugs as we walked to the car. I HATED this day and dreaded it for weeks. So, when the day came to leave the cabin and begin our journey south to Helsinki, where we'd catch a plane back home, I'd hide. Under the bed, in a closet, wherever I could find so I didn't have to say goodbye. Endings suck, but they're also necessary to transition into the next phase of our life. When you find yourself facing a time of transition, the first thing you need to ask yourself is: What do I need to let go of? Getting rid of the old is the first step to taking on the new.  Phase #2: Neutral Zone
Unfortunately, we can't jump right to the new thing after letting go. As William Bridges says in his book Transitions, after letting go of the old we now enter what he calls, "the neutral zone." Folks, I can speak from experience when I say, the neutral zone BLOWS. This is where you know you're done with the old thing, but you're not totally clear what the new thing is. But here's what's important to remember: hanging out in the neutral zone is where you get clear on next steps, what you want, and which direction you want to take. When you rush your time in the neutral zone you often make costly mistakes and only have to start over again. Surrender to the neutral zone. Just stand still for a minute. Clarity will come, I promise. Phase #3: New Beginnings Woot woot! The phase we've all been waiting for! Now you can start the new thing. But a word of caution: don't obsess over results here. Especially at the beginning. You're trying things out, feeling your way around. Be kind to yourself! We all experience transitions in our life from time to time. The key is to surrender to the process. To learn more give this podcast a listen, and pick up a copy of Transitions by William Bridges. Working with various attorneys over the last several months I've heard myself repeat something over and over again: "Your case is not about your client." This, understandably, catches some people off guard. What? How is my case -not- about my client? Well, obviously it's about your client as far as that's why you're bringing the case to trial. Someone harmed, maimed or killed your client (or your client's family member) necessitating this need for trial. But when we get down to communicating to jurors what the case is about, it's not about the client. It's about a violated principle. Your client is just a representation of the result of the violated principle. Principles are, as Stephen Covey says in Seven Habits of Highly Effective People, "...deep, fundamental truths that have universal applications." Principles act as natural laws. They are what govern human behavior. And although we all violate these principles in various ways throughout our lifetime, they serve as landmarks for how society should operate and behave. Here are some principles/violations that nearly all humans hold as sacred:
Nearly any plaintiff case can fit into a violation of one of these principles.
These are just a few examples, and many of the above examples could fit other principle violations. The point is, jurors don't find for plaintiffs, they take a stand for principles.  As much as we'd like jurors to care about our client, they don't. Tort reform has made sure of that. What you must do instead is get jurors to rally around the principle in your case.
Give this podcast episode a listen to learn more. This one's going out to the ladies. But men, there's stuff here for you too. In nearly every seminar I present, I always get a question from a female trial lawyer in the audience. It usually goes like this: "How do you suggest women use these techniques?" My answer? "The same way men use these techniques. My advice does not change depending on what's in your underwear." But here's the thing: these women aren't asking how to use the techniques, as I have just demonstrated how to use them in the seminar they just attended. What they're really asking is, "How do I use these techniques and not get corrected/penalized/judged?" And that's an entirely different question. The truth of the matter is, women are unfairly chastised when they show up in a big, bold way in the courtroom (or anywhere else for that matter.) And it's also true that women need to do it anyway. Look, I get it. There's a lot on the line and there are consequences for women who dare show up authoritatively or wear what's comfortable or any of the hundreds of things men are allowed to do without anyone batting an eye. But what I'm saying is, someone has to go first. Someone always has to go first. I firmly believe it is this generation of women that are going to change things. The women who are practicing law today are the ones who are willing to say, consequences be damned, "I'm done hiding who I am just so other people can be comfortable." And with this bold step, they will make it comfortable for women in other professions to do the same. There is no other option. You either bend yourself into a pretzel in an attempt to not piss anyone off, or you boldly go where very few women have gone before, and decide, right here and now, that you won't step back for anyone, even if it costs you a verdict.  But I don't think it will. Doing this job as long as I have has shown me one thing consistently: jurors love people, men OR women, who are comfortable in their own skin. Jurors love confidence. Jurors love lawyers who show up in a real, authentic way.
Does this mean you should make it all about you, aggressively throw your weight around or do things just to piss people off? No, and that advice stands for men as well. Great communication is all about timing. You must know what is needed when. So show up as your big bad self, but also learn how to read your audience and adapt your communication so you are serving their needs as well. Lady lawyers, I salute you and stand with you as you boldly stand up for your right to communicate, dress and lawyer any way you damn well please. Give this podcast a listen to learn more. It's easy to get angry at trial. Lying witnesses, judges who block your planned voir dire, and opposing counsel that continually object have a way of getting you hot under the collar. But communicating anger at trial can be dangerous. First off, anger can cloud your judgement. Allowing yourself to get angry can take you off your game and cause you to make decisions that aren't good for you or your client. Second, communicating anger at trial sends the message to jurors: "This.Is.Personal." Which means you are now, nonverbally, at least, asking the jury to award you, the trial lawyer, a verdict, instead of your client. No jury is willing to do that. But third, and most importantly, anger communicated at trial reduces the amount of "space" allowed for anger. When you get angry at trial, you force jurors to "balance out" the emotional energy. If you're angry, they must remain calm, or the atmosphere gets too tense. There are three things you can do when you feel angry at trial:
Don't let anger take you off course. When you feel angry, breathe and try and drop it. If you can't, let it be. And if appropriate, express it. Remember: the truth needs no defense; it needs a voice. Your job is to be that voice so truth can prevail at trial. Give this podcast a listen to learn more.  I wrote a book! From Hostage to Hero is now available via Trial Guides at www.trialguides.com. I wanted to write a book for years, but it wasn't until I really understood that jurors are hostages and that lawyers--come to find out--are hostages too, that the concept took off. In the book you'll learn about how a juror's brain is under attack during jury selection and how yours is too. I'll introduce you to the concept of permission and why increasing your nonverbal intelligence is the best way to build permission with jurors. Then I'll walk you through the four steps you need to take to move jurors from hostage to hero. Grab your copy and join me November 21st at 1 p.m. PST for a virtual launch party in the From Hostage to Hero Facebook Group. I'll walk you through the book, take your questions, and help you get the most out of your reading experience. You don't want to miss it! Order your copy today to begin your journey from hostage to hero.  What is the focus of most voir dires? To find the bad apples. On its face, this make sense; bad jurors can derail things in the verdict room, making all your hard work for naught. But consider this: it's going to take a team of willing participants to take heroic action for you and your client. Focusing on finding your bad jurors and then working with whoever is left is no way to build a team.  That's why I suggest you focus your voir dire on finding your ideal juror.
In order to find your ideal juror, you need to know what they look like. To begin, look at the issues in your case. Ask yourself, "What would an ideal juror have to think or believe for this no longer to be a fear?" Instead of looking at how to frame your issues, look at what will fix them instead. For example, if you're worried about the fact that your client is an undocumented immigrant, ask yourself, "What would fix this?" An ideal juror in that case might believe: If you hurt someone, you're responsible for the harm, regardless of the victim's citizenship status. Continue coming up with beliefs your ideal juror will hold. Go down your list of issues and come up with 2 - 3 ideal juror beliefs for each issue. When you're done you should have a pretty comprehensive list. Take a look at your list. Is it clear what kind of juror you're looking for now? You bet it is. Your ideal juror believes the things on this list. Now you know what to ask in voir dire. Bonus? As you go looking for your ideal jurors, it will be really clear where the bad apples are. What you focus on, you create. Look for your ideal juror and they'll show up. In 2009, after a double bird strike, which killed both engines, Captain Sullenberger made the decision to land a commercial jet with 155 people on board in the Hudson River. A few seconds before the plane hit the water, Captain Sullenberger came on the intercom and said three words which many passengers later said calmed them down immediately. What were those three words? Perhaps they were words of comfort like, “We’ll be ok,” or “Don’t you worry.” No, the three words Captain Sullenberger said were: “Brace for impact.” Brace for impact? How on earth are those words comforting? They aren’t. That’s the point. It isn’t –what– Captain Sullenberger said, it’s how he said it that brought assurance to the passengers. He was in command of his breathing. He was calm. He was confident. And although the words he said were, “Brace for impact,” the message the passengers received was, “We’re in good hands.” Leadership is communicated. You can think you’re a leader, but unless you can communicate it, no one else will see you that way. But how is leadership communicated? Through breathing. Authenticity shows people who you are but breathing shows people how you are. If you are not breathing well, or holding your breath in court, you activate your fight or flight response. When you are in fight or flight, you are in survival mode, which means you’re looking out for yourself. No one is going to follow someone who is only looking out for themselves! Breathing well in court communicates, “I’ve got this,” and shows jurors that you are a safe, steady presence and someone worthy of following.  If you want to show up as a leader in court, get your breathing under control. The jury wants to know you’ve got the knowledge, experience, and skill to handle the stress of trial. You communicate all of these things through breathing. But you also communicate that jurors are safe with you. Breathe deeply, and often, and you’ll start to see your leadership grow in court.
Last week I talked about getting clear on want. But knowing what you want is only half the battle. You also have to want the side of shit that comes with your want. In other words, when you pick up one end of the stick, you also pick up the other. Here's what I mean: Every "want" has a shadow side. Want a satisfying relationship with someone? Choosing that means you're also choosing disagreements, not being able to make decisions without taking someone else into consideration, not sleeping with other people and all sorts of other things. Want to have a kick ass body? Choosing that means you're also choosing not eating whatever the hell you want, spending time exercising instead of doing other things, drinking lots of water instead of alcohol, etc. Want to run a business? Choosing that means you're also choosing mundane tasks, managing people, financial ups and downs and lots of other non-sexy things. You have to embrace the shadow side of your work. Opposing counsel that makes every interaction a drawn-out nightmare. Putting up your own money. Clients who make your life miserable.  These are the things that come with the job you've chosen. Seeing this clearly instead of shaking your fist in the air stops unnecessary suffering. You have enough stress in your life. Stop being surprised that this job is hard. Embrace it.
You can, and should, get clear on what you want. But as you do that, also consider that whatever you choose, you're choosing the shadow side too. When you pick up one end of the stick, you pick up the other. Choose wisely. What's getting in your way? Well if you're like most of my clients, I bet it's one of these three things: You Don't Know What You Want What do you want? When I ask clients that, I usually get a blank stare or a confused look. Want feels so...indulgent. So...self-involved. And what the heck does want have to do with anything anyway? Everything. Without want there is no WILL. When things get tough, you've got to have a want that's flashing so brightly in front of your face that you KEEP GOING. It's so easy to wake up one day and realize you're living a life you don't even recognize. Getting clear on what you want not only helps you keep going when things get tough but determines the course of your life. You're Waiting Maybe you know what you want but you're waiting to take action. You've told yourself you don't have enough experience. Or training. Or knowledge. Or preparation. You should wait. It's the prudent thing to do. Here's the truth: you'll never have "enough." You'll never walk into court feeling 100% prepared. You'll never feel you know everything there is to know. (At least I hope not. How boring!) "Enough" doesn't exist. It's a myth. It's a fantasy land you think exists if you'd only patiently wait for it to arrive.  You'll be waiting forever.
Stop waiting. Do it now. Whatever "it" is. You Aren't Willing to Fail What's the real reason you're waiting? Well, if you're like most people, you aren't willing to fail. You tell yourself it's because you aren't "enough,” but the real reason is you don't like failing. Newsflash: no one like to fail! But being willing to fail is the key to moving to the next level of your development. If you want to up your game at trial, you've got to put your fear aside and willingly put yourself out there and give up your excuses. Start wanting. Stop waiting. Be willing to fail. Get out of your own way and watch as your life, and trial practice, transforms before your very eyes. How do you help jurors understand the difference between economic and non-economic damages? On one hand, jurors want a formula, but on the other hand, formulas often backfire. For example, it’s not unusual to watch a mock jury deliberate and hear someone say, “Well, they’re asking for $10,000,000. This guy will live 23 more years according to their experts. So let’s see. Ten million divided by 23 is about $435,000. Divide that by 12 and that's…holy hell that’s over $36,000 a month!” This is dangerous. So how do we navigate this in trial? I firmly believe that you need to tell jurors how to calculate damages. So many attorneys throw up their hands and say, “No one can tell you how to do this, you just have to rely on your judgment.” Uh, big mistake. As David Ball says, if you tell the jury that no one can tell them how to calculate damages, they hear: “it can’t be done.” Here’s how I often suggest handling it... In voir dire, ask jurors about the difference between the price of something versus the value*. For example: "Can something have value even if you paid very little for it?" "What should happen if someone destroys something “priceless?” "How do we, as a society, make it up to that person?" "Why are some things valued very high in our society, say, a Picasso or a basketball player, and other things aren’t?" In opening, tie economic damages to price, and non-economic damages to value. You know jurors will want to use a calculator so tell them when that is appropriate. Say: “Economic damages is where you can get your calculator out. This is where you look at ‘price.’ How much will it cost to get the plaintiff back on his feet? What accommodations will he need? How much will medical care cost? This is the easier part of your job. You just look at the receipts, the bills, the reports and add it all up." You can then continue: "The hard part of your job, however, is non-economic damages. This is where you determine value. You won’t be able to use a calculator here. There is no formula. This is where you have to decide how much value to place on something like no longer being able to walk your daughters down the aisle. Or no longer being able to do simple things like change a lightbulb without asking your neighbor for help.” But don't stop there. In closing say: “Now here’s how we came up with the non-economic number.” Walk the jurors through your process. Tell the jury how you came up with the number but continue to tie it to value and not price.  The minute you start talking about how much things cost, you're in the “price” zone. You've got to get jurors into the “value” zone when discussing non-economic damages.
There’s no perfect way to help the jury with non-economic damages, but I do think jurors need more help than we often give. So help the jury by first, explaining the difference between the two types of damages, and then, helping them understand your reasoning for the non-economic number. *Thank you to John Coletti who, along with Paul Luvera, developed this method and allowed me to share it. What's the first thing you do when you screw up? Well, if you're like most people, you try to forget it as fast as possible. Big mistake. I've talked a lot about failure in this space and on my podcast, but the only way to really learn from your failure and grow as a trial attorney (or anything else) is to feel your way into it. Here's an example: A trial attorney came out to work with me last month. During his opening statement to our mock jury, something went wrong and instead of course correcting, I could see his inner critic take over. The opening got choppier and choppier and when he ended, I could tell he felt badly about his performance. It would have been very easy to try and make him feel better. I could have told him it was fine. I could have reminded him about what a good trial attorney he is. I could have switched gears and done a new activity to build his confidence. Instead I did nothing. I let him feel his failure. I didn't argue with him when he said he felt it went terribly. I just let him be with what he was feeling.  When he was ready, we watched the video of the opening and processed our way through it. We then tried the opening again, and this time, I watched him perform more passionately than I'd ever seen him perform before.
Here's what's important: When the attorney sat with his disappointment, he eventually realized, on his own, that it was his inner critic that caused his opening to go awry. He wasn't broken, ineffective or untalented. He just let his inner critic take over for a moment and, by really feeling what that was like, he decided he never wanted to do that again. Had he ran away from his failure, he wouldn't have recognized what actually happened during his opening. He would have instead told himself to just work harder, when in reality, he didn't need to work harder at all. He just needed to ignore his inner critic the next time it started yapping at him when he made a minor "mistake." When we attempt to run away from our pain, we don't learn. The first step to greatness is to be willing to fail. But merely failing is not enough. You need to feel your way into it. Here's a podcast episode that talks about this in more depth. devil's advocate noun. a person who advocates an opposing or unpopular cause for the sake of argument or to expose it to a thorough examination. Are you using the devil's advocate question in voir dire? No? Well pull up a chair, 'cause you're gonna want this in your repertoire. I've been playing with the devil's advocate question for several years now and have found it to be an absolute must in my voir dire arsenal. Here is the basic gist: A devil's advocate question is where you ask the jurors a question that exposes a defense argument. For example, say you have an overserving case. A bar overserved a customer, that customer drove drunk, and someone was killed. The defense may say things like: "We didn't force him to drink." "He wasn't obviously intoxicated." Etc. A devil's advocate question then would sound like this: "Yeah, but, what about personal responsibility? No one poured the drinks down his throat." Or: "But could the bar really do anything? He didn't seem intoxicated." You take a defense argument and turn it into a question. But, you have to be careful. For example, NEVER use a devil's advocate question until you've rallied the jurors to your side.  For example, you wouldn't say:
"This is an overserving case. Which means a bar overserved a customer, and that customer drove drunk and killed someone. Who here thinks the bar couldn't do anything if he didn't seem intoxicated?" Aack! No. You might as well pack up and go home with that question. Instead, you want to ask the jurors if they think bars can play a part in preventing drunk driving. You want to ask why that's important. You want ask the jurors if bars should be held responsible when someone they overserved hurts or kills someone else. And, depending on how they answer (ie, if they are "with" you) you can THEN play devil's advocate with: "Yeah, but, what about personal responsibility? No one poured the drinks down his throat." Here's why this works: once someone communicates an opinion, if you challenge that opinion it strengthens their conviction that they're right. Social science backs me up on this. See this article and this one and this one. The devil's advocate question allows you to both a) bring up a defense point and b) strengthen the opinions of favorable jurors all in one. Just make sure you only use the Devil's Advocate Question if the jury is firmly rallied around your idea or the question can backfire. Click here to listen to my podcast on the Devil's Advocate Question. |
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