Today we're looking at the last P in the Five P’s model: Prove Fairness. If you've been following the blog, we've been exploring the SCARF Model from David Rock, author of Your Brain At Work.
The SCARF model states that there are five social needs that when threatened can activate the survival instinct in the brain. Those needs are: Status, Certainty, Relatedness, Autonomy and Fairness. Today let’s look at how jury selection threatens a juror’s sense of fairness, and how you can prove the process is fair and reverse the brain attack jury selection creates.
To most jurors, getting a jury summons in the mail feels unfair.
The concept of fairness is something we throw around quite a bit in trial, isn't it? We talk a lot about fairness. We want to find jurors that will be fair. And yet the number one thing that jurors think while sitting in the jury box is, "This is so unfair."
But what do we ask jurors?
"Can you be fair?"
Upon hearing this, most jurors think, “This entire thing is unfair! Why should I give you fairness when you're not giving it to me?"
Realistically, being called to jury duty isn’t unfair, not really. Most eligible Americans will probably be called to jury selection at some point in their lives. But on this day, to this juror, it sure feels unfair.
In addition to feeling as though it’s unfair to have to show up for jury selection, most jurors also feel the process is unfair. Read any of the online comments on lawsuits in the media, and you'll see that most jurors think the whole process is rigged. That your plaintiff is just trying to “win the lottery.”
There are three things that you can do to prove fairness to jurors.
The first thing? Drop the gimmicks. It is so tempting to try to use some gimmick that you picked up at a CLE, or read about in a book, but jurors can spot a “technique” a mile away.
I've said many times that the best thing in the world is to watch a Gerry Spence voir dire. The worst thing? Watching someone else attempt a Gerry Spence voir dire. Listen, the reason these things work—if they work at all—is because the technique is authentic to the creator. The creator figured out who they are, and they show up that way to the jury. That's what works, not the gimmick or technique.
Which brings me to the second thing: you've got to show up authentically to the jury. This is hard. Standing in front of a hostile group of people causes you to instinctively close up and protect yourself. I’m asking you to do the opposite. And as much as you might want to fight this, it’s what is required in this job.
You have to show up authentically before the jurors can. You have to go first. It's unfair to ask the jurors to do something that you yourself are unwilling to do. You have to show them the way.
Think about it. It’s like saying, "Hey, can you talk to me? Can you tell me all your secret thoughts and feelings? Can you tell me—and all of these other strangers—some crazy things that have happened in your life? Now I'm not willing to be that open with you. Nope, I'm not willing to stand up in front of you and show you all of my warts and weirdness. No, I'm going to show up as a shiny, polished attorney that makes no mistakes and does everything perfectly."
It’s total bullshit.
You show jurors that this process is fair when you stand there, take off your—imaginary, I hope—bulletproof vest and get shot if you have to, proving you believe so strongly in this job, this case, and this client.
Finally, meet the jurors where they are.
The number one thought on any juror’s mind is: "Why am I here and what do I have to do?"
Every single communication situation involves dealing with an issue or tending to the relationship.
Jurors start in the issue bucket. They are not there to have a relationship with you. No juror in their right mind wakes up the morning of jury selection and says, "You know what? I can't wait to get to the courtroom to have a relationship with Mr. or Mrs. Attorney!" They think, "Where do I go? What do I have to do? How long do I have to stay? What is this about?”
Meet jurors where they are. Get to the issue! Which means you don't make jokes and give lame explanations about what bias is, and all the things that you’ve been taught to do to try and "create rapport.” You quit all that shit and get to the point instead; honoring the jurors time and giving them what they need most: to understand why they are here and what they are being asked to do.
When you do that, you prove that you’re playing fair and that maybe jurors should give this process a chance. By showing up as your real deal self, you teach the jurors to do the same. And that my friends, is everything, because active, involved juries are what drive up verdicts.
Jurors are hostages.
To reverse the threat jury selection creates we’ve been looking at the Five ‘P’s’:
Today let’s look at how to Promote Relatedness.
Years ago, I traveled to Wisconsin to help an attorney pick a jury for a medical malpractice case. Voir dire began on Monday, so the attorney arranged for a mock jury on Sunday for practice. The jury was scheduled to arrive at 1:30 p.m. He also scheduled a lunch meeting with the plaintiff at noon. Unfortunately, the restaurant screwed up our order and we ended up being over an hour late for the mock jury. When we walked into the church where the mock jury had assembled, the attorney was shocked. Even though this group had sat together for over an hour waiting for our arrival, the room was completely silent. No one spoke or made eye contact. The air was thick with tension.
This is what you face in the courtroom, isn’t it?
Jurors don’t know you, defense counsel, the judge or each other. The brain views lack of relatedness as an attack.
The number one thing you can do in voir dire to tap into the reward center of a juror’s brain is to form the group. Groups are the most powerful organisms on earth; we want to form a group not just to promote relatedness between jurors, but to also make it easier to get a verdict in our favor.
Many people think that time is what gets groups to form; that by simply being together the group will form and bond, but this is not the case. Time alone doesn’t form groups. You do.
Group formation benefits both jurors and you in a variety of ways:
So how do you form a group?
Groups are primarily formed nonverbally. There are four nonverbal areas you can utilize for group formation: Eyes, Voice, Body and Breathing. To get a group to form you must get them to:
Think of the last cocktail party or networking event you attended. You most likely avoided making eye contact with people you didn’t know. However, once the host introduced you to someone else, you now made eye contact. The introduction gave you permission to look at each other.
This is what you have to do with jurors during voir dire.
Here’s how: once a juror is finished speaking, hold your hand out to him or her and then gesture and look at another juror and ask, “Is what you’re saying any different than [Name of Second Juror]?” It is very important that you look at the second juror, not the first. We are trained to maintain eye contact with the person who is speaking. Merely gesturing to another person while holding eye contact with the first won’t make them look there. However, people look where you look. If you look at the second person while asking the question of the first person, there is an 80% chance the first juror will turn and look at the juror you are looking at.
By doing this, you have now given these two jurors permission to look and talk to each other. Continue to do this with as many jurors as possible and your group will start to form.
You can also form your group by getting jurors to do things together. Simple things like having everyone raise their hand at the same time help the group to form. Why? When people do things together, they feel like a group. Why does the military have soldiers march? To form the group. Why do we sing the national anthem before sporting events? To form the group.
Finally, you help form the group by getting them to breathe. We know the jurors are in fight or flight because jury selection invokes a threat response. You can reverse the fight or flight response by breathing deeply yourself. Breathing together as a group helps them form.
Want to help jurors move from hostage to hero? Preserve their status. Provide them with certainty. Protect their autonomy. Promote Relatedness. Next time we’ll talk about the fifth and final P: Prove Fairness.
In the last several blogs I’ve talked about the concept of juror as hostage. I introduced you to the S-C-A-R-F model from David Rock, author of Your Brain at Work, and the five social needs that when threatened, can activate the survival instinct in the brain. Those needs are: Status, Certainty, Autonomy, Relatedness and Fairness.
We’ve been moving through the Five ‘P’s’ that will help us reverse the threat jury selection creates, those P’s being:
We tackled Provide Certainty in the last blog, so in today’s blog, let’s move onto Protect Autonomy.
This is the big one, isn’t it? Jury selection threatens a juror’s status by making them speak in front of a group of strangers, and yes, jurors have the least amount of information in the room which threatens certainty, but lack of autonomy is the big threat to jurors. It’s what makes them hostages!
Autonomy can be defined as freedom from external control or influence. We all want to feel like we can make our own decisions, decide our own schedules and operate with basic freedom in the world. When autonomy is threatened, however, we feel incredibly unsafe.
Even though jury selection doesn’t actually threaten jurors physically, it still activates their threat response. Think about it: why are most jurors hostile? Because they are being forced to participate! They don’t have a choice.
How can you reverse the threat jury selection causes and protect a juror’s autonomy? Here are a few tips:
When you begin voir dire, start by acknowledging resistance. People who communicate what others are thinking are perceived as more intelligent and credible. Simply start with, “Thank you for being here. I know you didn’t have much of a choice.” But don’t stop there. Continue by pointing out that they did exercise some autonomy, however, by showing up. “Even though obeying a jury summons is required, many people chose to ignore that summons and not show up today. I appreciate all of you for making the choice to come here today and participate in jury selection.”
These few sentences do two powerful things: 1) they communicate to jurors that you understand they are, for the most part, there against their will, but 2) they could have chosen not to come at all and therefore are still autonomous beings who can make their own choices.
So often attorneys attempt to do the first — acknowledge resistance — without doing the second — pointing out that jurors did in fact decide to come. If we acknowledge that jurors are there against their will and leave it at that, we haven’t done anything to protect the juror’s autonomy. It’s extremely important to acknowledge not only resistance, but that jurors are still autonomous beings that can make their own decisions.
Now, a caveat: Avoid making a big deal about how powerful jurors are in an attempt to compensate for the absence of autonomy until later in trial. As I mentioned before, jurors are the most powerful people in the room because they get to decide the case. However, pointing this out too early in the process can seem like manipulation; it’s best to wait until the group is formed before reminding them of their immense power.
But the biggest thing you can do to protect a juror’s autonomy is actually give them a choice.
Instead of asking about their hobbies, describe the mission. Tell them what they’re going to have to do. Get them talking about the principles in the case so they understand what’s at stake. Then ask them if they want to participate. When you get their buy in early, you’ll see that jurors begin to willingly give up their autonomy to join your cause. But you can’t get buy in until and unless jurors understand why they are there and what they have to do.
Want to help jurors move from hostage to hero? Preserve their status. Provide them with certainty. Protect their autonomy. Next time we’ll talk about the fourth P: Promote Relatedness.
In the last two blogs I’ve talked about the concept of juror as hostage. I’ve talked about the S-C
-A-R-F model from David Rock, author of Your Brain at Work, and the five social needs that when threatened, can activate the survival instinct in the brain. Status, Certainty, Autonomy, Relatedness and Fairness. A decrease in status, a lack of certainty, a removal of autonomy, an absence of relatedness and the perception that something or someone is unfair are all perceived as threats by the brain.
In the last blog I I introduced you to the Five ‘P’s’ that will help you reverse the threat jury selection creates:
We tackled Preserve Status in the last blog, so in today’s blog, 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 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 I be sitting on? How long will it take? When will I know if I have to be a juror?”
Once the day of jury selection comes the uncertainty continues. “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?”
But once jurors get to the right place are they 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?”
When the jurors finally make it into the courtroom, 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 process.
The number one thing jurors need at this point is certainty. But do you, the attorney, provide it?
Most attorneys attempt to “break the ice” by asking about a juror’s hobbies or passions or what books they’ve read lately.
This is the absolute opposite of what you should do. Here’s why:
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. 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 you truly want a relationship with jurors, you have start with issue-oriented communication.
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 you increase permission and meet jurors where they are? Get to the point.
Jurors are expecting the entire song and dance of lame jokes, being talking down to, (does anyone really need 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.
What does it mean to “get to the point?” Tell jurors why they’re there. Tell them what the case
is about. No, don’t give details you can’t give, but tell them what types of issues they’ll have to
wrestle with and what’s at stake. Involve them in the process. Right from the beginning. When
you do this you communicate that you take them seriously and honor their time.
Preserve a juror’s status. Provide them with certainty. Next time we’ll talk about the third P: Protect a juror’s autonomy.
Last week I talked about the concept of juror as hostage. I introduced the S-C-A-R-F model from David Rock, author of Your Brain at Work.
David has identified five social needs that when threatened, can activate the survival instinct in the brain. He organized these needs into what he calls the SCARF Model. S stands for Status, C for Certainty, A for Autonomy, R for Relatedness and F for Fairness. A decrease in status, a lack of certainty, a removal of autonomy, an absence of relatedness and the perception that something or someone is unfair are all perceived as threats by the brain.
If jury selection threatens jurors in these five areas, how can you tap into the reward center of the juror’s brain, and reverse the threat that jury selection creates?
Allow me to introduce you to the Five ‘P’s’. Because Status, Certainty, Autonomy, Relatedness and Fairness are all under attack during jury selection, you must:
Today let’s focus on the first P: Preserve Status.
Status is defined as rank or position. Quest for status can be seen across several species; from humans to animals, status is something organisms recognize and strive toward.
We’re hardwired to care about status. Receiving admiration and approval from others is something we all crave.
But how does this apply to jury selection? In any situation where a group of strangers are assembled, no one knows the “pecking order.” Who’s the leader? What is my “rank?” How am I being perceived?
This “not knowing” can cause tremendous stress, and stress does not have a positive effect on decision making, the one thing you need jurors to do and do well.
In addition, not only do jurors not know their ranking in the group, but the very process itself has the ability to threaten whatever status is up for grabs.
Think about it: You put jurors on the spot and ask them to share their most personal thoughts, feelings and experiences in front of total strangers. This threatens status.
In order to tap into the reward center of a juror’s brain, you need to preserve a juror’s status. The first step is to address the power imbalance.
Jurors are the most powerful people in the courtroom. They decide the case! The problem is, they don’t feel powerful, especially at first. This is due to lack of information.
You, opposing counsel, and the judge all know more about the case than jurors do. And yet, you ask jurors questions, questions that relate directly to the case, expecting them to share their experiences, insights, and personal opinions when they aren’t sure why we’re asking in the first place. This threatens status.
For example, have you ever been working at your desk when your paralegal pops his or her head in and asks, “Are you free Wednesday afternoon?” If you’re like me, my response is always, “Why?” I don’t want to commit to anything until I know what it is. Jurors feel the same way.
It is incredibly fear-inducing to be put on the spot and asked to speak in front of a group when you aren’t sure of the context. This is why I suggest you provide context to jurors before asking questions. I call these context statements and include them in all of the voir dire I help attorneys create.
Context statements are simple and neutral. They do not give any information about the case that wouldn’t be allowed, nor are they argumentative. They simply provide context for the question you’re about to ask so that jurors can relax and feel empowered at the same time.
For example, if you are trying a car crash case, one context statement might be, “This case involves a car crash.” Simple. But don’t let the simplicity of the context statement fool you; context statements help jurors feel safe by giving them a reason for the question. I cannot tell you how many times in both mock and actual juries I’ve seen a perplexed look on a juror’s face after an attorney has asked a question. Sometimes they don’t understand the question, but in many cases they don’t understand why the attorney is asking the question.
Providing jurors context will help you preserve status. It shifts the power imbalance. You have more information than the jurors. By sharing that information, the power shifts. Jurors begin to have equal footing, and as jury selection continues, that power grows. The more they learn, the more empowered they are.
Before each line of questioning during voir dire, give jurors some context with a simple context statement. Providing jurors with context before asking them questions preserves their status by making it easier to speak in public. The more informed the jury, the more comfortable they feel. The more they know, the more powerful they are.
It should come as no surprise that jurors don’t want to be there. But have you ever asked yourself why that is?
The obvious answer is that no one wants their day or week interrupted, but there are much deeper reasons, neurological reasons that take jurors captive.
David Rock, in his book Your Brain at Work lists five sociological factors that when threatened, the brain views as an attack. Those factors form the SCARF model:
What process threatens all five of these factors at once? Jury selection.
Think about it: jurors must speak in public. This threatens status. What if they say the wrong thing? Stutter? Embarrass themselves?
There’s no certainty for jurors. They don’t how or if they’ll be picked to serve. They don’t know what the case is about. They don’t even know when lunch is.
Jurors are forced to participate, restricting their autonomy. They cannot choose to opt out. They’re forced to be there.
Jurors don’t know you, defense counsel, the judge or each other. Most of us wouldn’t go to a cocktail party by ourselves, much less jury selection, but jurors are forced to go it alone. Jury selection creates a lack of relatedness.
And although all eligible Americans may be called for jury selection, that’s no comfort to the jurors. On this day, they’ve been called to jury duty and even though it’s not unfair, it sure feels like it.
Jury selection takes jurors captive by taking their brains hostage. They feel under attack due to lack of status, certainty, autonomy, relatedness and fairness. And it’s your job to set them free.
You must reverse the threat jury selection creates and help your hostages become heroes.
Welcome to the From Hostage to Hero blog. In this blog and accompanying podcast, I’ll teach you to understand the juror mindset and change your approach. By working with instead of against the jurors, you’ll find your job becomes easier and you may begin to win more too.
Until next week, subscribe to my From Hostage to Hero podcast on iTunes, and join my From Hostage to Hero Facebook group.
Rachel, my colleague here at FORTE sent this article to me yesterday, titled, The Green Smoothie Problem: Why Others Don’t Buy Your Ideas. In it the author discusses a common problem using an analogy of offering someone a green smoothie:
“Imagine I just handed you a smoothie in a glass. ‘It’s a green smoothie. Wanna drink it?’
If you’ve never seen or heard of a smoothie like that, you’d react in one of two ways:
Simply by handing you the smoothie, I’ve immediately put you at an information disadvantage. As a result, you anchor to a past precedent or try to draw confidence from others in order to fill in the gaps in your knowledge as quickly as possible. If my goal is to get you to drink the smoothie, I’ve done a rather poor job. I’ve merely handed you the drink and left you to do all the reasoning to influence your decision.
But if I really wanted to influence your decision, what if I shared the reasoning too?
What if, rather than simply hand you the smoothie, I laid out the details of how I came up with it?”
I was immediately struck by how the Green Smoothie Problem applies to voir dire. So often attorneys will begin voir dire by asking questions and offer no context or reasoning for why they are asking. Jurors, who are already at a disadvantage by having the least amount of information in the room, are immediately put on the defensive; if they don’t understand why you’re asking the question, they are afraid that whatever answer they give may be the “wrong” one.
Giving context helps put jurors at ease and helps you get more information. Which is why I suggest always giving a “context statement” before asking a question, or set of questions, in voir dire.
For example, if your case involves a car crash, before asking jurors, “Who here has ever been in a car crash?” Simply state, “This case involves a car crash.” If the case involves a hospital, before asking people about their experiences with hospitals, say, “This case involves a hospital.”
Other context statement examples include:
“In this case, someone was injured in a car crash.”
“In this case, there is a disagreement about what caused the crash.”
“This case involves an insurance claim that was not paid.”
Attorneys who hear this advice for the first time will often say to me, “But the judge reads a statement of the case before voir dire begins! Why repeat that info?”
The answer is twofold. One, the statement by the judge is read in its entirety, where voir dire will examine various aspects of a juror’s belief piece by piece. Two, the person who has the most information is the most powerful person in the room. Why leave that power sitting in the judge’s lap? Giving jurors context as you work your way through voir dire increases your credibility while empowering the jury at the same time. It’s win/win.
To learn more about my trial method, visit my Trial Tips page to watch videos on various trial topics, or subscribe to my newsletter to receive these blogs and videos directly into your inbox.
His hands shook violently. So violently that the notes he held only served to illustrate the shaking to the jury. His voice cracked as he spoke. I had put him third; my thought was that seeing two other lawyers present to the jury before him might help him relax. But no, he was as nervous as ever. I tried to read his body language so I could give him feedback later; was he in approachable or authoritative stance? His knees were practically buckling; it was impossible to tell. His “stance” was an attempt to not fall over.
This past weekend was our Opening Statement Studio. Six lawyers from all over the United States came to Portland to work with me for four days on increasing their presence, nonverbal intelligence and presentation skills. We worked on storytelling, teaching and how to deal with objections while playing with breathing and body language and a host of other skills.
After a day and a half of prep, the lawyers arrived Saturday morning to face two mock juries. Each attorney had 20 minutes to present his or her opening and then 10 minutes to hear from the jury and get my feedback. The entire thing would be videotaped.
As I watched this attorney present his opening, I worried about whether or not he’d make it through. But as he began telling the story of what happened to his client, things began to shift. Still nervous as hell, he used a single chair to illustrate to the jury the scene where this all happened. He became, before our very eyes, the characters in those chairs and told the story of how a woman’s life was cut short by a negligent doctor. At one point he ran to the door and shouted, “Call an ambulance!” and it was as if we were there on the day it happened. The jury held their breath as they watched him demonstrate a husband performing CPR on his own wife.
As he brought his opening to a close, his hands were still shaking. The jury, however, was now in tears. I, too, had to fight the urge to allow the tears that had just welled up in my eyes tumble down my cheeks.
Once the jury finished their written feedback, I asked them: “Did you notice that the attorney was nervous?” They all nodded. I then asked, “Who here thinks that this attorney is less credible because he was nervous?” Not a single hand was raised. In fact, as the jury began giving their verbal feedback to the attorney they spoke about his incredible storytelling skills, his ability to make the characters come to life, and how after a 20 minute opening in a complex medical-malpractice case they were ready and willing to award him any amount he asked. His nervousness wasn’t even a factor.
1. The attorney didn’t let the nervousness distract him. He didn’t try to shove it down, but he didn’t let it distract him from the job at hand either. And if it wasn’t distracting to him, it wasn’t distracting to the jury. He taught the jury to ignore it, and they did.
2. The nervousness made him real. Jurors are on high alert for any type of manipulation; had this attorney told this story with perfect poise and perfection, I guarantee you that the jury would have viewed it as a “manipulation” and dismissed it out of hand. Because the attorney was visibly nervous the jury found him more credible, not less.
3. The nervousness made him human. We’ve all been nervous at some point in our lives, whether that was when we asked our boss for a promotion or at our 5th grade piano recital. Nervousness is a human condition. When this attorney embraced his nervousness and presented his opening anyway, he communicated to the jury “I’m just like you.” And they loved him for it.
Nervousness only becomes a credibility issue when we let it distract us from the job we’re attempting to do. Instead of dreading it, embrace your nervousness! Being nervous communicates that whatever you’re attempting to do means something. Forging ahead says to your audience “not only does this mean something to me, it means so much that I’m willing to talk about it even if it makes my knees buckle.”
That takes courage.
Taking courageous action increases your credibility. So the next time you’re literally “shaking in your boots” I suggest you see it as a good thing. Take a deep breath, hold your head high, and let your passion for your subject come through.
Sari de la Motte is the CEO and founder of FORTE, a communications consulting firm that specializes in helping attorneys communicate their real selves. Are you working on a case and need help? Schedule a free 30 minute consultation with Sari now!
Sari has been dubbed the "Attorney Whisperer" because of her unique ability to help attorneys communicate their real selves.