Today we're taking a look at the last P in The Five Ps Model. We're exploring how to reverse the threat jury selection creates for jurors by talking about how attorneys can Prove Fairness.
DON'T MISS THESE HIGHLIGHTS:
Introduction: When you're up against a hostile room of people who don't want to be there, you need real strategies that get results. Welcome to From Hostage to Hero, the show that gives you practical advice you can use right now in the courtroom, boardroom, or classroom. Learn how to move your unwilling audience to one that is invested in what you're saying, eager to participate, and engaged in the process. Learn from the attorney whisperer herself, your host, Sari de la Motte.
Sari de la Motte: Hey everybody. Today we're looking at the last P in The Five Ps Model. If you've been listening regularly, we've been exploring the SCARF Model, S-C-A-R-F model, from David Rock, author of Your Brain At Work, and again, that book is not about trial necessarily, but when I read about the SCARF model, I immediately saw the application to trial attorneys, and particularly to jurors.
The SCARF model says that there are five social needs that when threatened can activate the survival instinct in the brain. And so again, what we're looking at in the last several podcasts, and today's going to be the last one on fairness, is how to reverse the threat jury selection creates for jurors, because jury selection absolutely threatens them in terms of status. They don't know anyone else. They have to speak in public. The whole thing is kind of scary and fraught. It threatens them in terms of certainty. They don't know how things work, when they can leave, if they can leave, if they're chosen, how they're chosen. There's no certainty. They can't choose to not be there, so that of course threatens autonomy. As we talked about last podcast, they don't know anyone else. They don't know their fellow jurors. They don't know you. They don't know opposing counsel. They don't know the judge. And today we're going to talk about fairness, and how they believe this whole process is unfair.
Now to be able to reverse these five threats that all jurors experience, we've been looking at what we call the five Ps, or what I call the five Ps. So preserve status, we talked about that several podcasts ago, if you want to learn more about that, go check that one out. Provide certainty, protect autonomy, last time was promote relatedness, and so today we're going to talk about how to prove fairness. Those are the five Ps.
All right, so let's talk, and start by talking I should say, about why this whole thing feels unfair. I think you get it, as trial attorneys, but I don't know that you actually feel the way that jurors feel this unfairness. For most jurors, getting that jury summons in the mail is ... they would rather get anything in the mail quite frankly, a surprise bill, some event that they don't want to have to attend, anything except for a jury summons, and that's because they don't know when they get that, what it actually means. They don't know what the case is going to be. They don't know, you know, maybe where to go. They don't know how long they'll have to be there. And all of that really lends itself to them feeling, "This is so unfair. I had X, Y, Z planned for that day. I have to go to work that day. I had a big project due. That's when my son's baseball game was. I planned to take my wife on vacation." Whatever it may be, it feels so unfair that this thing, hurling out in the universe like a meteor, has just landed in their mailbox, and now it's just changed the trajectory of what they had planned. No one likes that.
And I was thinking about this in terms of this word, or this concept of fairness, it's something that we throw around in trial quite a bit, isn't is? I mean, we talk a lot about fairness. Our big concern, from the trial lawyer side is finding jurors that will be fair, right? We want them to be fair. We don't want them to be biased. And yet the number one thing that they're thinking when they're sitting in those juror seats, at least initially is, "This is so unfair." And yet we sit there and we ask them, "Can you be fair?" And they're thinking, "Fuck you. I don't want to be fair. I don't want to have to deal with this. This whole thing is unfair. Why should I give you fairness when you're not giving it to me." Now, I apologize for being so harsh, but this is the reality that you are facing with these jurors, they just don't believe in this process, and having to be forced to be there is just awful for them.
Now this perceived unfairness, and really, you know I say perceived, but it is unfair on many levels. I mean ultimately the meta view is that it isn't unfair. Most jurors, most eligible Americans, I should say, will probably be called on some day to jury selection, but on this day, for this juror, it just feels super unfair. And so that unfairness activates the threat response, because they don't get that this is what's going to happen probably to everyone at some point, it just feels like it's only happening to them. Fairness by definition means everyone is being treated the same, but they can't see that on the day that they're chosen, or the day that they're called to the courtroom. All they can see is, "I have to be here along with these 30, 40, or 80 other people, but everyone else gets to go along their merry way while I'm stuck here. This is so unfair." Let's face it. Let's be realistic for a moment. Serving as a juror is a hardship. It really is. It takes an investment of time. It often takes an investment of money, meaning jurors have to by law, still get the time off from work, but that doesn't mean they're getting paid necessarily, and so it really is a hardship for so many jurors, and it's a sacrifice that they don't willingly make.
What I'm hoping that you understand as we go through the podcast today, is that this, whether unfair, or fair, jurors perceive it as unfair, and even before I say what I was about to say, we have to think about this idea too, that jurors don't believe in the process. That's part of the unfairness is, if this was something that they believed in, or understood better, they might be willing to actually come in and play. I hate to use the word play, but you know, come in and really get involved in the process. But read any of the online comments on lawsuits that are going on right now in today's media, in fact, on second thought, don't do that, you'll just be so discouraged, and you'll see that most jurors think the whole process is rigged. That your plaintiff is just trying to win the lottery, so on and so forth. So add to the fact that it feels unfair because there's this investment of time and money that they're not choosing to willingly give up, but that they also don't believe in the whole thing. They don't believe in the whole thing.
So what I hope that you understand, or coming around to believe, is that we have to view the jurors, and we talked about I think in our first podcast, about the jurors being the enemy, is that so many of you view the jurors as the enemy, where they are really the hostages. And that I hope by taking you through these five SCARF factors, you know the fact that they're status is being threatened, that they don't have any certainty, that they can't choose not to be there in terms of autonomy, that they don't know anyone else, that the whole process feels unfair. I hope that this is helping you turn around your view of jurors as the enemy, and have some compassion for what they are going through, because I really believe that once you start to view jurors differently, that that will change everything. In fact, that's what I'm on a mission to do through this podcast and through my book, From Hostage to Hero, which should be out this year, later this year, is to change the way that you're viewing the jurors, because I really believe that what you focus on, you will create. If you think that the jurors are out to get you, then that is how you will communicate, first of all, and that is how the jurors will respond.
We have trained to respond to messages in the way that they are received. If you come at me with an aggressive message, you better believe that I'm going to come back at you with some more aggression, and the same can be said for the way that you view jurors. If you're going out there, and you're looking at this jury pool, and you're thinking, "These guys and girls are all out to get me. Who of you are going to kill my case?" That is what you are going to get back in return. You've heard me say it before, you set the tone at trial. You do. You get to decide what this process feels like, not only for you, we're going to talk about that in future podcasts, but for the jurors themselves. By setting the tone, by telling jurors nonverbally, and otherwise, that they don't have to be hostages. They do not have to remain hostages. They may have been brought here against their will, but they can choose to participate in this process, and if they do choose, that they then have the opportunity to really rise and become heroes, not just for your plaintiff or for your case, but for themselves. That is the opportunity that you are giving them and affording them. By changing your mindset of who they are.
When you look at the jurors as enemies, you absolutely erase that opportunity, you no longer make it possible. You make this process one which is where you are at war, not with the other side, but with the jurors themselves, and these are the people that are going to have to decide the case. You don't want to make them the enemy. You don't want to be at war with them. You want to be at war with the other side. You want to focus all of your fighting toward beating the other side, not the jurors themselves. I cannot make this point strong enough. So what I'm hoping is, by seeing the five sociological factors that automatically threaten a jurors brain, that you can get on the side of, my job now is to help calm or reverse those brain threats so that the jurors can see the opportunity, willingly choose to participate, and get on my team. The winning team.
All right, so to help us with this fifth P which is prove fairness, I've got three things for you. Three things for you. So the first thing is, if you want to show jurors, or prove to them that this is fair that they've been brought here, and that they should stay and listen, and choose you, actively choose you and your case, the first thing I'm going to caution that you don't do is, attempt to manipulate or use any gimmicks. Man, it is so tempting to try to use some gimmick that you picked up at a CLE, or read about in a book, and I get it, we are desperate, absolutely desperate for some kind of formula, something that will help us to figure out how to help these jurors vote for us and vote for our client, and win the case. I am telling you that formulas, techniques, those kinds of things are just not helpful. They aren't.
That doesn't mean that you shouldn't learn how to be a better communicator, for example, which is what all of my work is, or you shouldn't attend CLEs, or watch DVDs, or do all the things that you're doing. I think all of those things are great. But what I am suggesting is that you stop making gimmicks or techniques the center of your practice. That you think that you finally found the answer, and then you use this gimmick to attempt to manipulate the jurors, and it's not even authentic to you. For example, one of the reasons that Gerry Spence, or Nick Rowley, or Rick Friedman, or any of the greats out there are so great, is because they are so comfortable in their own skin. They are not trying to be anyone but themselves. In fact, their whole mission is to be the best version of themselves in the first place.
This is why Gerry Spence put the whole college together. I mean, yeah, you go out to the Trial Lawyers College and you learn trial skills, but man, from what I understand, and I've not been myself, but so many of my clients have, the number one thing you're doing out at the ranch is learning how to be a better person. Learning about who you are, and how to bring that forward. I've said many times that the best thing in the world is to watch a Gerry Spence voir dire, and the worst thing in the world is to watch someone attempt to try to be Gerry Spence in voir dire. I mean it's just awful. And so often you guys are trying on these things that you're learning, not realizing that the reason they work is because they are authentic to the creator. It works for the creator because they've found their voice. They've found who they are, and they're showing up in this big awesome way in front of the jury, and that's what's translating, not the fact that they're using some gimmick, or some technique, or something that you can replicate.
Now this doesn't mean that you shouldn't try the “brutal honesty,” for example, that Nick Rowley suggests. Or that you shouldn't try putting things in context, like Keith Mitnick suggests in his book. What I am suggesting is whatever technique you've learned, that you find how it works for you. It's not the technique that works, or doesn't work, it's the ability to show up in front of the jury as your most authentic self. That's what translates to the jury, which is really the second thing, is that you've got to show up in a huge authentic way. And I know that asking you to do this is asking you to do something hard, and here's why. You are standing in front of this group of hostile people, and I, and others like me, Gerry Spence and the college being one of them, is asking you to do the absolute opposite thing that you instinctively want to do when you're in front of a group that is sitting there, hating your guts, which is, open up and be vulnerable. And I'm sorry to tell you, there's no way around it. This is what is required in this job. This is what is required of you as a trial attorney. You have to be able to stand in front of a group that is hostile, and open yourself up.
When I went thinking about this, I think that that's going to be easier for you if you understand the reason for the jurors hostility. That's why I've been trying to push this so much in my book and here on the podcast, to help you understand that the jurors are only hostile because they're hostages, and that when you show them the way out, that this will be much easier on you. It will be much easier for you to show up authentically. In fact, you have to show up authentically before the jurors can. You have to go first. It's absolutely unfair, I mean let's talk about that for a moment, it's unfair to ask the jurors to do something that you yourself are unwilling to do. Boom. There's a truth bomb for you. You have to go first. You have to show them the way.
It's just, it feels unfair to say, "Hey, can you talk to me? Can you tell me all your secrets thoughts and feeling and everything you ever thought about? These crazy things that have happened in your life? But hey, you know what, I'm not willing to be that open with you. 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." You know, it's bullshit, and they can read through it. They absolutely can read through it. So you have to go first. That's number one. So first, don't use gimmicks. Don't try to manipulate.
Second, show up as your big awesome self, and show them that you mean business. Show them that this process is fair because you are willing to stand there, take off your bulletproof vest and get shot if you have to, because you believe so strongly in this job, and in this case, and in your client. That is going to prove that you are fair and you're playing fair.
Third, and probably I won't say most importantly, but super important here is you've got to meet the jurors where they are. Jurors are all wondering, "Why am I here and what is it that I have to do?" Now I talk about how every single communication situation, I mean every situation is either dealing with an issue, or tending to the relationship. I don't care whether you're ordering coffee, or talking to your spouse, or working with jurors. You're either in the issue bucket, or you're in the relationship bucket, and what you have to understand about jurors is jurors start in the issue bucket. They are not there to have relationships 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." No one thinks that. They're thinking, "What do I have to do? How long do I have to stay? What is this about? How do I do my job?" So on and so forth.
So if you want to increase what we call permission, how receptive these jurors are to you, you have to meet them where they are. Which means you get to the issue. Which means you don't waste time. Which means you don't have the funny jokes and the lame explanations about what bias is, and all the things that you're trying to do to try to have that relationship, or "create rapport". You quit all that shit, and you get to the point by honoring the jurors time, and warming them up by giving them what they need most, which is, why am I here? When you are able to do that, then the jurors start to go, "Okay, here's someone who gets it. Here's someone who knows that this feels unfair. Here's someone who is showing up in a huge real way, giving me what I need, not trying to use all the gimmicks and manipulations that I'm expecting. I'm now willing to show up myself. To maybe be open to hearing what he or she has to say." And that my friends, is everything, because it's the active involved juries that drive up verdicts.
Hostages make terrible decisions. Hostages, make decisions that are the decision that gets them out of this the quickest. That is never a good decision, especially for plaintiff attorneys. We want jurors that are actively involved and are willingly wanting to be there. We have to be able to shift them out of hostage mode and into hero mode, and we do that by first understanding their plight, which is what we've been doing over the last six podcasts. Really looking at, what is this like for jurors? So that you intimately understand, what it is that they're facing, and how some of the things that you've been doing all along, is actually shooting yourself in the foot.
Now that you understand how jurors feel threatened, and how you can begin now to turn that around, and the first thing being, changing your mindset about them, we can now move forward and start talking about how we start moving them from hostage to hero, but the first step is understanding their hostageness. Now, before we talk about moving them from hostage to hero, in our next podcast we're going to talk about how you're a hostage too.
Until then, visit our website at attorneywhisperer.com, or saridlm.com, they'll both get you to the same place, and click on the trial consulting tab to see all the different ways you can work with me. There's lots of good stuff in there. You can also click on some links in the show notes to get direct access.
I also want to let you know about two additional podcasts that I host. Yes, I'm a very busy person, but I love talking to all y'all. One is Sound Check, that is the podcast I have for speakers of any stripe. So that is all about presentation skills, about working with any kind of audience, those types of things. It's not as juror focused, it's just basic speaker focused. And then we've just launched, about a month ago, our brand new, Tap Into Your Power: The Amplify Project Podcast. That one is all about changing your communication from the inside out. If you are interested in really doing an overhaul, a makeover so to speak, of your communication, and who you are really as a person, because I believe we communicate who we are, you'll definitely want to get plugged in to The Amplify Project at amplify-project.com, but at least get started by listening to the Amplify Project Podcast: Tap Into Your Power.
Alrighty. Well, until we meet again, I invite you to find your voice and amplify it.
Thanks everyone. We'll see you next time.
That's it for this episode of From Hostage to Hero, but head to our website, saridlm.com for other must have resources from Sari de la Motte, read the transcript of this podcast, watch trial tip videos, or download your free copy of Sari's article, why jurors hate the hobby question? We're glad you joined us today, and until next time remember, that to lead a hostage to freedom, you must first free yourself.
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.