Taking a closer look at the fourth of "The Five 'P's": Promote Relatedness, and how it can reverse the social threats of jury selection.
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Welcome to the "From Hostage to Hero" Podcast, my name is Sari de la Motte, aka: the Attorney Whisperer. I have to apologize to my listeners for such a break in the podcast; I’ve been working on my book, From Hostage to Hero, due out this year, but now I am back in the swing of things and looking forward to talking with you regularly!
To get us back on track, in the first four podcasts I introduced you to the concept of juror as hostage. We 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. And those things are: Status, Certainty, Autonomy, Relatedness and Fairness.
To reverse the threat jury selection creates we’ve been looking at The Five ‘P’s:
We’ve been looking at the last three in the last podcasts – Status, Certainty, and Autonomy. 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 started on Monday, so the attorney and I decided to have a mock jury on Sunday to practice. And we scheduled them to arrive at 1:30 in the afternoon. Now, he also scheduled a lunch meeting so that I could meet the plaintiff. Unfortunately, though, the restaurant screwed up our order and we ended up being over an hour late to the mock jury. So we walked into the church where the mock jury had assembled, and 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. No one made eye contact. I mean, the air was thick with tension.
This is what you face in the courtroom, isn’t it? We think it’s hard to get a hostile group to talk to us because they’re irritated that they’ve been forced to participate. But that’s only part of the story.
Most of us wouldn’t go to a cocktail party where we didn’t know anyone else, much less jury selection. But this is exactly what we ask jurors to do: go it alone. Jurors don’t know you, they don’t know defense counsel, they don’t know the judge, and they certainly don’t know each other. The brain views this as an attack.
The number one thing you can do then, in voir dire, is to tap into the reward center of a juror’s brain by forming the group. Groups are the most powerful organisms on the 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.
Now, a lot of people think that time is what forms the group; meaning, that simply being together the group is going to form, they’re going to bond, but that is not the case. Time alone does not form groups. You do.
For example, when my best friend, Rachel, got pregnant, she decided to attempt to deliver her daughter medication free. Not only did she do this with one daughter – no pain medication - she did it with her second daughter exactly the same way. I mean, she’s a Rockstar. Now, she’s my hero, so when I found myself unexpectedly pregnant at the ripe old age of 42 (literally, my chart said “elderly,” on it), - and yes, at 42, I did know what caused pregnancy, but I just didn’t think I would have a viable one, having lost two previously, but this one stuck, and I’m glad it did - I decided that I would also birth my child without medication.
Now, as you might imagine, this is not an easy thing to do, and it takes training. Ten weeks of training, to be exact. I know this because I signed my husband and I up for a ten-week class to learn how to push a kid out of my nether regions without any pain medication.
Classes were held in the instructor’s living room, (which is a little odd) and there we were one of 8 couples that had signed up to attend the two-hour training every week. And during that two hours the teacher would discuss different aspects of childbirth, have us try an exercise. Afterwards there would be snacks, and so on and so forth.
I’d love to tell you that over those ten weeks the group bonded and shared our progress over email and at meetings, but that actually didn’t happen. The group never formed. Think about that for a minute. Ten weeks together, two hours a week. Even though we spent over 20 hours in each other’s presence, discussing seriously intimate topics we never bonded. Why? The instructor never formed the group. Outside of the initial introductions, the instructor never had the class members engage with each other during the class.
Unformed groups, and this is what is really important to understand, not only increase a juror’s lack of safety, they are really hard to work with. For example, in an unformed group you, the attorney, have to connect with each and every juror. This takes time, and you often don’t have that time, or energy, and you can’t spare it, even if you did. Additionally, when attempting to connect with each and every juror, you bore the other jurors who aren’t participating. Voir dire becomes a series of one-on-one conversations, and that’s a snoozefest in any context. Unformed groups are also incredibly difficult to read because you have to observe each individual now instead of watching the group, something we’ll talk about in future podcasts.
So, group formation benefits both jurors and you in a variety of ways. Here’s a couple of key points. :
So how do you form a group?
Some of this will be a little difficult to discuss over a podcast, but I’m gonna give it a try, because groups are primarily formed nonverbally. There are four nonverbal areas I want you to pay attention to in terms of group formation: What people are doing with their EYES, what they’re doing with their VOICE, what they’re doing with their BODY and how they are BREATHING. So, here it is. To get a group to form you must get them to:
So, let’s talk about this.
Have you ever attended like, a CLE or a seminar of some kinds and you arrived early in the morning to find all the other attendees sitting there, alone at their tables, eyes cast down, perhaps reading the course materials, but the room completely silent? This is the hallmark of an unformed group. On the other hand, have you noticed that on the second day or maybe the second afternoon you walk in after lunch, and people are chatting, having coffee, and making eye contact? That’s because the group has now formed, hopefully, if the instructor has done a good job in doing that over the day one and morning of day two.
Think of the last cocktail party or networking event you attended. If there were people there you didn’t know you probably avoided eye contact. This is pretty natural. However, at some point in the night, hopefully, someone introduced you to someone else. That introduction now gave you permission to look at each other.
This is what you have to do with jurors during voir dire. Although we aren’t passing drinks around (that would make voir dire a whole lot easier!) we can still use the introduction template to get jurors to look at each other. 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, even though that’s going to feel incredibly awkward. We are trained to maintain eye contact with the person who is speaking. But, merely gesturing to another person while holding eye contact with the first won’t make them look there. People look where you look. If you look at the second person while asking the first person the question, there is an 80% chance the first juror will turn and look. I’ve seen it happen over and over again. But you have to train yourself to take your eyes off the first person and, with your gesture, move your eye contact and your hand over to the second.
What you’re nonverbally saying is “Hey! I am giving you permission to look at this other juror.” When you do that, the awkwardness is now removed. Now they can look and talk to each other as much as they want and most likely they’ll continue to do that throughout voir dire and, hopefully, otherwise. Continue to do this with as many jurors as possible and your group will start to form.
So, that really covers both, and there are other things, but on this podcast I just wanted to give you one tip. That really covers both getting the jurors to look and talk to each other.
The third one, getting them to do things together, you can use really simple things like having everyone raise their hand at the same time. How can oyu get them to raise their hand at the same time? You can say things like, “How many people here have ever attended jury selection before?” Or, if you’re pretty sure that most peple have now or there’ll be some who have and some who haven’t, you can be funny and say, “Who here would rather be somewhere else this morning?” Again, even more, “Good morning!” And wait for them to say, “Good morning.” So simple things like that will help you get the jury to do things together. Just saying “Good morning” and waiting for the whole group to respond, asking “Who here has heard of ‘beyond a reasonable doubt?’” something you know nearly all the jurors have heard. That will help. So anything like that that you can get them doing things together, they’re going to start to feel like a group. When people do things together, they feel, and act as if they are a group. This of this in terms of the military. Why does the military have soldiers march? To form the group. I mean, they do everything together. The entire concept of the military is to work the idea of the “individual” out of the person who is signed up. They make their beds at the same in the morning, the same way, they get up at the same time. Everything they do, they do it uniformly and together as a group. The individual is not even a point of focus. Same thing, why do we sing the national anthem at sporting events? To form the group. They’re all group formation activities. So the more things you can have the group doing together, the easier it will be to get your group to form. Don’t overlook these little things you can do in jury selection that you think are a waste of time, or are gimmicky. They’re not gimmicky. What you’re doing is creating a group that feels comfortable with each other and that is one of the most primary, safety-creating things that you can do in jury selection.
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. We’ve been talking about that the last four podcasts. We can reverse that fight or flight response in many ways, but the primary way is to breathe deeply, and get them to breathe deeply.
Research shows that listeners adopt the breathing pattern of the speaker. I always remember speaking at Rick Friedman’s “Take Back the Courtroom,” this was years ago, and we were talking about breathing in the portion of my program that I was allowed to be onstage – I loved being there – and we showed a clip from Rick’s propofol case and, we had, I think the 30B6 representative was on the stand from the company that had created the vials in this case, and he was absolutely sputtering. Every question that Rick asked, the man was just “I don’t know, uh..uh…no, that’s not what I’m saying….” Rick was completely calm. This guy was not. The point being, that when we finished the clip, I turned and asked the audience, “How are you breathing right now?” And nearly all 200 people, together, in that moment, just went “haaaahhhh!” They were holding their breath. Just watching this 2-3 minute clip created this feeling of having to hold their breath because they were starting to adopt the breathing pattern of the speaker. This means that you have more power than you know to affect the breathing of the group. If you aren’t breathing well due to nervousness or anxiety, your jurors will remain in fight or flight themselves. So, you’ve got to get your own breathing under control. We’re going to have some podcasts on breathing. I talk a lot about breathing if you’ve ever been to my seminars you know that’s a big deal for me. So, we’ll do more of that in future podcasts, but for now, you can practice at home, start a meditation practice, or doing yoga, just simply sitting for 10 minutes – I set my iphone timer – and just focus on your breath. Do whatever it takes to get your breathing under control because the jury is going to respond to how you breathe, and you’re got to be breathing slow and low to get them to be breathing slow and low. And that’s also going to form the group. Why? Because it communicates, we’re safe and we’re comfortable. Most of us breath high or hold our breath in situations that are stressful or tense. So, getting them to breathe and relax sends a message to their brain that they’re safe. I cannot overemphasize this enough. And again, we’re going to have several podcasts on this because it’s so important. But for now, in terms of group formation and relatedness, just know that your breathing is paramount to getting the jurors to breathe.
An attorney from Oklahoma flew out to work with me on voir dire. The day before our mock jury I taught him all of the things I just taught you in the above-mentioned group formation techniques. He was skeptical. “Are you sure this will get the group to form?” he asked. “Yes,” I responded. “Groups don’t just form by being together. You’ve got to nonverbally help them.”
The next morning the mock jury filed into the room. The attorney watched from the screen in the other room, cause we’re all wired where you can see the jury from a back room. And, one by one, each juror would get up, go get coffee and then returned to his or her seat, speaking to no one and making zero eye contact. Now, that is a hallmark sign of a group that is not formed. I popped my head in the room where the attorney was pacing back and forth. “Ready?” I asked. “Ready,” he replied.
So, he comes out, and I’m telling you, within 20 minutes -- those of you who have limited voir dire, you’ll always push back on this and say “Sari, how can you do this with 20 minutes. I say, “You can do this in 20 minutes. I’ve seen it happen. Cause within 20 minutes this group - these jurors which were a group of individuals at this point, not a group - they had sat quietly and stiffly just moments before was now chatting, not only with the attorney, but also with each other. At times the attorney couldn’t get a word in edgewise. Once the mock jury left, of course the attorney spins around and says, “You hired actors. You rigged this!” He was joking, of course. But, he was so amazed at how quickly you can form the group through these simple nonverbal techniques.
If you want to help jurors move from hostage to hero, you’ve got to, first PRESERVE their status. Second, PROVIDE them with certainty. Third, PROTECT their autonomy. (And, if you don’t know how to do those things, go back and listen to the three podcasts before this one.) And you also have to PROMOTE their Relatedness. That is absolutely central. Next time we’ll talk about the fifth and final 'P': PROVE Fairness.
Until we meet again, I invite you to Find Your Voice and Amplify It. Thanks everyone for joining us! I’ll see you here next time.
Sari de la Motte is the host of "From Hostage to Hero." She has been dubbed the "Attorney Whisperer" because of her unique ability to help attorneys communicate their true selves.