When I first started working with lawyers, I was surprised to find that voir dire was the part of trial most lawyers dreaded.
This made no sense to me: voir dire was the one part of trial that was unscripted. It was a conversation, a "get to know you" type of deal. But I soon realized that the "unscripted" part of voir dire was the very thing that made it difficult.
So I set out to fix this problem. I developed a method to help attorneys craft a voir dire that would get jurors talking. And it helped. But there was still a problem.
You can prepare your side of the conversation, but you still have no idea how the jurors will respond.
And that's when I realized that good questions are important, yes, but they're just the start. What you really need to get good at is listening.
When you think of listening you probably think of focusing intensely on someone else (in this case, the juror) and giving them your full attention.
You might be surprised to learn that there are three types of listening.
The first type of listening is the listening I see all the time in voir dire: listening to yourself. This is where you act as though you're listening to the juror but what you're really doing is listening to your own inner chatter.
"Is this a good juror for me?"
"How do I follow up on this?"
I hardly need to point out that this is -not- the type of listening you want to be doing in voir dire.
The second type of listening is where you listen to someone else. This is what most of you have been taught to do in voir dire, but to stop here is a mistake. There's a third type of listening you need to develop.
You need to listen to your intuition. When you listen to your intuition you listen for what's not being said, what's in the room, and how the group is reacting to what individual jurors are saying. This is where every good thing in voir dire happens.
When you listen to yourself, you miss out on all the good information the juror is sharing.
When you listen intently to individual jurors, you risk boring the group.
But when you listen to both jurors and your intuition, you can shape the conversation and infuse it with meaning and purpose. You are present with the individual juror, yes, but you also have an eye on the entire group and what needs to happen next.
But here's the thing about intuition: it doesn't shout at you or slap you in the face. (At least, not most of the time.) It shows up when you get quiet and give it space to arrive. And yet most of you are afraid of silence! So when the juror stops talking you immediately jump in and crowd out the opportunity to let your intuition speak.
Stop. Slow down. Trust that what needs to be said next is just lurking under the surface. Start giving your intuition time to show up and you'll begin to master voir dire with each passing trial.
Give this podcast a listen to learn more.
You communicate nonverbally all the time.
You can't -not- communicate.
And yet I'd guess most of you have received little to no nonverbal communication training.
You cannot be a high performing trial attorney if you don't master nonverbal communication.
1. The majority of any message is nonverbal.
There are three parts to any message:
Content is what you say. Delivery is how you say it. Reception is how it was received.
Even if all three parts were weighted evenly (they aren't, nonverbal communication always speaks louder than words) 66% of any message is nonverbal. How you deliver a message is nonverbal, (body language, voice tone, breathing, and gesturing) and reading how people receive it is done nonverbally. (More on this below.)
To get your message across, you must tune into your nonverbal communication.
2. If there is a mismatch between your verbal message and your nonverbal message, the listener will believe the nonverbal message every single time.
You tell the jury you want to hear from them but then dart your eyes around the jury box. The message jurors receive? "Shut up already, I want to move on."
You tell the jury this case is very serious but then joke around with opposing counsel on breaks. The message jurors receive? "This case is a joke."
You tell the jury this case is simple but then use hundreds of PowerPoint slides and lots of jargon. The message jurors receive? "This case is complex."
Your nonverbal communication speaks louder than your words.
3. The ability to ensure good communication happens rests on your ability to read nonverbal cues.
If you haven't mastered nonverbal communication, that means you misread (or don't read at all) the nonverbal communication of whoever you're communicating with. But this is the only way to tell if what you're doing is working! Communication doesn't happen in a vacuum; you have to keep an eye on your listener to gauge whether your message is landing. You do this nonverbally.
Want to master trial? You must master nonverbal communication. There are no shortcuts. Jurors believe what you do, not what you say.
Give this podcast a listen to learn more.
I bet you've been told you need to build trust with jurors, haven't you.
Here's the problem: trust takes time. Yet, you don't have the luxury of time to get jurors to believe and trust you.
What you need is permission.
What is permission?
Permission is how receptive someone is to you or your message.
Permission is a function of three things:
You can increase permission with jurors (or anyone else) by meeting their need.
For example, what do jurors need at the start of jury selection? Information. They want to know why they're there and what they have to do. So tell them. Forget phony "rapport builders" like asking about hobbies or what jurors have read lately. Get straight to the issue and watch permission go up.
You also increase permission by doing things at the right time. Jurors need to feel empowered, yes. But telling them they're the most important people in the room at the beginning of trial nearly always fails. Why? It's the wrong time. Jurors are on the lookout for any hint of manipulation and this fits the bill. You empower jurors in closing, not when you begin.
Finally, you increase permission by meeting people's needs at the right time and in the right context.
The different parts of trial represent different contexts. The context of voir dire is to get information. The context of opening is to give information. The context of closing is to argue your side. Stay in your lane! Don't argue in opening or deliver a presentation in voir dire.
You need jurors who are receptive to you and your message. Forget about getting them to trust or like you. Instead, focus on meeting their needs at the right time and in the right context and watch permission steadily increase.
Several years ago, Bill Barton agreed to speak at our Power of Presence event. During his talk, he said that he had “learned not to take the losses personally.”
A few weeks later, David Sugerman, an attorney based here in Portland, and I had lunch. David just won a 420-million-dollar verdict against BP. He had attended the Power of Presence seminar where Bill had spoken.
As we discussed his recent win and Bill’s remarks on losing, David said, “I too, have learned how to not take the losses personally. But what I think is even more important is to not take the wins personally either.”
Bill, David and other great attorneys know that there’s little rhyme or reason to why you win or lose at trial. They know that there will be times they’ll lose cases they should have won, and win cases they should have lost. Therefore, they don’t take any of it personally. They just do their best and let the chips fall where they may.
Praising yourself for your brilliant lawyering when you win and beating yourself up when you lose makes absolutely no sense. You cannot base how “good” you are on your win/loss record.
Redefine what success means. Are you there to win or to fight? If you’re there to win, well good luck with that. You cannot control whether that happens or not. But if you’re there to fight? THAT you can always be successful at.
We’re in this to win.
The problem is, you can’t control whether you win or not.
And although I think you know this, I don’t think you accept it.
I see so many attorneys desperately attached to winning at trial that when they lose...it knocks them off their game.
When I was wrestling with an issue in my life years ago, my coach told me something I’ll never forget. She said, “The goal is to be 100% committed and 100% unattached.” It’s ok to want to win. But you need to detach from whether it happens or not.
Let go of the idea that winning is the only acceptable outcome. Instead, focus your energy on doing the best job possible and you might just find that winning takes care of itself.
Verbal information is the most difficult information to get across. Because verbal information is difficult to process, audiences tend to tune out things they don’t understand or have trouble following.
The answer, then, is to create hundreds of PowerPoint slides, right?
No. No no no.
Last year I had an attorney come through my opening statement class. A few weeks before the start of the class, he sent me a 150-slide slide deck.
That’s when I knew we were in trouble.
After he presented his opening to the jury, one juror said, “I thought you were very credible.” The attorney responded, “Thank you!” But the juror continued, “until you started with all the PowerPoints. That’s when you lost all credibility with me.”
When you use hundreds of PowerPoints, what message do you send jurors? This case is really complex. It’s so complex, in fact, it’s going to take HUNDREDS of PowerPoints for me to explain it to you. This is not the message you want to send to jurors.
SO complex = TOO complex = Defense Verdict.
In addition, using tons of PowerPoints interferes with your ability to connect with jurors. Jurors can only look at one thing at a time; you or something else. If you’re constantly using PowerPoints, that means jurors must look at the PowerPoints, not you. You’re missing out on real connection with jurors when you use an insane number of PowerPoints.
I'm not saying never use PowerPoints. What I am saying is every single visual you use should support your presentation, not detract from it. You may think that PowerPoints reduce information overload, but they often do the opposite.
YOU are the main attraction in opening. Focus on telling a good story with excellent nonverbal communication. Use visual information to deepen a juror’s understanding, not as a substitute for teaching from you.
I recently asked a room full of lawyers who the enemy was at trial.
“The jurors!” someone shouted. The audience laughed.
Jurors are not the enemy, but thinking they are can cause you all sorts of problems.
Look, I get it. Trial is hard, and blaming the jurors are easy. They’re the reason you lose, right?
Jurors are hostages. They have been forced to participate in a process they neither chose nor believe in. Your job is to free them so they can become the heroes you need to win justice for your client.
But as long as you view them as the enemy, you keep them, and yourself, enslaved.
Think about it: you tell the jurors you want them to believe and trust in you all the while training your gun on them thinking, “Who here is out to get me???”
Body language begins in the brain.
If you think the jurors are your enemy, you’ll communicate it.
Not to mention that thinking the jurors are the enemy means you walk around with constant worry. You weigh yourself down with attempts to “influence,” “persuade” or god forbid, “be charismatic.”
Drop your weapons. Once you view the jurors as hostages in need of a leader, you no longer need fancy techniques and gimmicks. You just need you.
You attract what you focus on. Want bad jurors? That’s what you’ll get when you think jurors are the enemy. Want willing soldiers who will go to battle for you and your client? Change your mind about jurors and they’ll show up.
We’ve been looking at what limiting beliefs are holding you back. Today we’re looking at the limiting belief: My Stories Are True.
Years ago, I was working with a trial attorney in my office. After several attempts to get him to open up his body language, he still remained closed.
Frustrated, I finally blurted out, “Ok, what’s the story?”
And out tumbled a story about how he’s afraid he’ll say or do something that will turn the jurors against him and how this fear had been eating him alive.
When our communication is “off” there’s always a story behind it.
Body language starts in the brain. What we think gets communicated through our nonverbals.
This is dangerous.
Walk into the break room and see two people abruptly stop talking and you make up a story that they were talking about you.
See a juror frown and you make up a story that they don’t believe you and your version of events.
Your spouse is late coming home from work and you make up a story that they’ve been in an accident.
All of these stories have consequences because we communicate based on our stories.
Think your colleagues are talking behind your back? You’ll start avoiding them and acting strangely when they’re around.
Think a juror is against you during trial? You’ll start getting nervous about trying new things and play it safe.
Think your spouse has been in an accident? You’ll increase your stress and may lash out at your child.
It’s nearly impossible to stop making up stories because the brain is wired to make sense of our experiences. So instead, ask yourself, “Does this story serve me?”
If your story causes you stress, worry or anxiety, it doesn’t serve you. So ditch it. Tell yourself a new story.
Maybe your colleagues were sharing a personal story and were embarrassed if others heard.
Maybe the juror has a stomach ache.
Maybe your spouse got stopped by his or her boss on the way out of the office and didn’t have time to text you before getting in the car to drive home.
Are these stories true? It doesn’t matter. The point is, they serve you and your mindset. If you end up getting more information that gives you a clearer picture, great! Reframe your story. But until then, pick a story that serves you.
Here’s a podcast you might enjoy.
Last week we looked at one of the limiting beliefs so many of you hold: there is a right way to do this. (This, meaning trial.)
Today’s limiting belief is similar but not quite the same. And that’s the belief that you have to be like [insert-famous-trial-attorney-here] to win cases.
It’s soooo tempting to see the “greats” and attempt to mimic their style, thinking that they’ve somehow figured out the way to win, and if you mimic what they’re doing you can win too.
Here’s the mind-blowing truth: the reasons the “greats” are great is because they’ve learned how to let go of their limiting beliefs and just show up as their real-deal selves.
Want to know what Gerry Spence is better at than anyone else on the planet? Being Gerry Spence.
Yes, you need to have command of the law and be well versed in various trial methods and techniques. I’m not suggesting that “authenticity” is all you need at trial. But so many of you believe that if you just had [insert-famous-trial-attorney-here]’s style, personality, dare I use the word…charisma…THEN you’d have it made in the shade.
You don’t need to be anyone but yourself. Working with as many of you as I do, I cringe as I watch you attempt to scrub yourself clean of any perceived faults all while bending yourself into a pretzel in an attempt to show up like [insert-famous-trial-attorney-here].
Stop. Stop the madness.
YOU ARE ENOUGH. Not only are you enough, when you attempt to be like [insert-famous-trial-attorney-here] you overlook your most powerful weapon at trial: your uniqueness.
Trial is a battle over credibility. The most credible person wins. What is the foundation of credibility? Authenticity. Show up like you. Yes, keep learning and practicing. But stop believing that you have to be like [insert-famous-trial-attorney-here] to win. You don’t. You just need to be you.
Jurors are hostages, but so are you. You are a hostage of fear.
In order to conquer your fear, we need to look at some limiting beliefs that are getting in your way. Today we’re looking at a limiting belief I find SO many trial attorneys hold:
There’s a right way to do this. (This, meaning trial.)
Not a day goes by that I don’t get an email of some sort or another claiming that THEIR method is the key to winning at trial.
I see the same thing in my private work with clients: there’s always some new method clients want to use whether that’s Nick Rowley’s brutal honesty or Keith Mitnik’s Don’t Eat the Bruises or whatever else has just hit the market.
There’s nothing wrong with trying new things at trial. There’s a lot of great stuff out there that’s geared toward helping you increase your skill as a trial attorney. Taking advantage of these things isn’t the problem. The problem is the belief that there is a formula out that will teach you the ONE RIGHT WAY TO DO THIS.
Uh oh. Here comes the bad news.
It doesn’t exist.
And believing it does causes all sorts of problems.
First and foremost, it causes you stress, in addition to costing you money and time.
But more importantly, believing there is a formula trains your instincts out of you. Instincts are felt in the body, not the brain. Yes, those messages are sent to the brain from the body, allowing you the choice of whether or not to take action on those instincts, but instincts occur in the body.
Yet most trial attorneys view their body as a way to just carry their heads around. You’re not tuned into all the body wisdom because you’re so focused on all the “formulas” floating around out there instead of dipping into the wisdom you already possess.
Trial work is hard. Formulas are easy. They promise an easy fix. In addition, they give you a way out: if you fail, you can blame the method, right? It’s the method’s fault, that’s all. So then the search begins anew for the next best thing allowing you to bypass the truly hard work that trial demands: working on yourself.
Here’s what’s missing: MASTERY.
Most trial attorneys flit from one thing to another, try a method, then drop it. Then they move onto the next thing.
It takes work and practice to master a skill. You have limited time, energy and money. Instead of sampling from the buffet of choices, why not decide, once and for all, that there is no right way to do this and focus on mastering whatever it is you’re learning?
Drop the reliance on formulas. Stop chasing the shiny new thing. Focus on becoming the best you possible and mastering the skills needed along the way. This is how you’ll begin to grow your confidence and let go of your fear.
Over the past several blogs we’ve been looking at how trial threatens jurors. Today we’re going to talk about how trial threatens you as well.
Jurors are hostages yes, but you're a hostage too.
What has taken you hostage? Fear.
Fear of losing, fear of screwing up, and fear of the jurors themselves. These fears have the potential to derail you at trial.
We’ve talked about how trial threatens jurors in five areas: STATUS, CERTAINTY, AUTONOMY, RELATEDNESS and FAIRNESS. But trial also threatens YOU in these five areas.
Let’s start with STATUS. As a trial attorney, your status is in toilet. As far as the jurors are concerned, you are the reason why they are there in the first place. You’re the reason for their imprisonment. Never mind that you’d never have to be here if the other side had taken responsibility in the first place. But the jurors don't get that. They think the reason they're here is because of you.
And to add insult to injury, you're a plaintiff attorney. You are there to ask the jurors for money. Talking about money in our society is taboo; the fact that you’re asking jurors to award it, much less talk about it makes your status decrease.
Not to mention, you may screw everything up! What if you forget your opening? What if the jurors don't talk to you? Jurors are forced to speak in public, but so are you. This can threaten status.
In terms of CERTAINTY, jurors don’t have much, but neither do you. You have to decide which jurors are "good" and which jurors are “bad.” In addition, there’s no certainty about the right “method” to use. Should you stand in front of the jury like Nick Rowley and ask them to be brutally honest, or should you ask them to share their fears, by promising to share yours like Gerry Spence? Or maybe you should talk about their passions like Don Keenan. Who knows? Trial threatens your certainty in a variety of ways.
In terms of AUTONOMY, trial threatens a juror’s autonomy by forcing them to participate. But it also threatens your autonomy. How? You don't get to decide the verdict, jurors do! You have zero control over how they decide your case. It’s all in the juror’s hands.
In terms of RELATEDNESS, jurors don't know anyone; you, opposing counsel, the judge or even each other. But you also don't know the jurors. And if we’re being completely honest, maybe you don't want to know them. These people have the power to destroy your case. Many of them already view you negatively, why open yourself up to that?
Finally, in terms of FAIRNESS, being called for jury duty certainly seems unfair to most jurors, but trial can also feel unfair to you. Think about it: you've worked up your case for months, if not years, and trial requires that you deliver it into the hands of amateurs who don't have any specialized training or knowledge. That can definitely feel unfair.
Depressed yet? I hope not. I’m sharing this with you not to depress you, but to show you that you and the jurors are in the same boat.
Trial activates your threat response. For the reasons I listed above as well as a myriad of other reasons. When you stand in front of this hostile group of jurors, the natural response is to want to close up. Yet trial demands the opposite. It demands that you open up and become vulnerable.
No one gets into trial work because it's a safe, easy, bet. It's the opposite. It's difficult. It's hard to do.
In upcoming blogs I’ll help you release your fear. But until then, relax in the knowledge that you and the jurors are in the same boat. And more importantly: you hold the keys to both your freedom and the juror’s. Once you free yourself, the jury will follow.
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.
I am pleased to announce that my book, From Hostage to Hero, is currently being edited by Trial Guides and will hopefully be out later this year.
To assist trial attorneys who want to engage with me and my method, we’ve designed several ways to do so:
First, you can subscribe to my From Hostage to Hero podcast. Available on iTunes or on my website, in this podcast I’ll discuss ways to help move your hostile group to one that wants to take action for you and your client.
Second, you can join my free Facebook Group: From Hostage to Hero Facebook Group by clicking here and asking for access. You must be a civil plaintiff attorney or criminal defense attorney to join. I’ll be live, each week in the Facebook group teaching and taking questions. In addition, this blog, along with the podcast, will be posted to the group. There will be group discussion starters, trial tips and other goodies as well.
Third, you can add yourself to the waitlist to know when The Amplify Project will open by visiting amplify-project.com. What is The Amplify Project you ask? It will be an online community that is available by subscription only. Inside the project you’ll find my Path to Power course, my Power of Attorney course, nonverbal videos, workbooks, sample openings and voir dires, coaching and live training. You do -not- want to miss it when the project opens as it will only be open for 5 days and we’ll only open the project a few times a year. Want to learn more? Take the Free Course at amplify-project.com and subscribe to the TAP Into Your Power: The Amplify Project Podcast on iTunes.
Finally, you’ll receive a weekly digest on Mondays that will include this weekly blog, a preview of the upcoming podcast and FB live, and other announcements that will keep you informed, such as when the book will be available.
I look forward to interacting with you here on the blog, in the FB group and through the podcasts. Get ready to learn how to move not only the jurors, but yourself, from hostage to hero!
Smart phones. iPads. Laptop computers. Take a look around and you’ll see faces glued to a device of one sort or another. We can order groceries to be delivered to our homes, hire someone to walk our dogs, and even get a college degree, all from the comfort of our couch. Technology has made it so that we never have to leave our homes.
North Carolina trial lawyer Perry Fisher recently introduced me to the work of Dr. Twenge. Dr. Twenge has done some interesting research around the rise of individualism; this is where society places a greater emphasis on the self and less on social rules. Individualism, for example, is often blamed for the decline of religion in America.
On its face this shift from community to individual and the increasing isolation of the individual would seem to be a negative one for trial lawyers. I, however, think it’s a unique opportunity and can work in your favor.
Regardless of the shift towards individualism and isolation due to technology, we cannot erase our very nature: humans are social creatures. We crave interaction with each other; the massive popularity of Facebook is testament to this fact.
So how is this good for trial lawyers? We crave social interaction, but we rarely get it. Due to our reliance on technology it is easy to remain isolated, and yet, research shows that isolation is causing more depression and takes a major toll on our mental health. Trial gives people a place to come together and do something important.
Think about this for a moment: the opportunity to come together with our fellow community members and do something that will have a lasting impact is so very rare in today’s world. And yet the experience of affecting real change is incredibly rewarding. Ask any juror who has served on a jury and they’ll tell you that it was one of the most meaningful experiences of their lives.
We must do a better job of conveying this opportunity to potential jurors during the jury selection process. I’ve seen time and time again jurors self-select to be on a jury once they understand how important their job is and the effect they’ll have on their communities.
Our increasing isolation as a society isn’t something we need to worry about in trial; it is something we can use to our advantage. Trial offers people a unique opportunity to feel important, affect change and connect with their fellow human beings.
What a gift this is in today’s world.
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.
Sari has been dubbed the "Attorney Whisperer" because of her unique ability to help attorneys communicate their real selves.