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.
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