Why do jurors feel like they're being held hostage?
Learn to understand the juror's mindset and how impactful choice is in their experience.
Listen to Episode #1: Choice Changes Everything now.
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You’re listening to “From Hostage to Hero” Podcast, episode number 1.
Welcome to “From Hostage to Hero,” a podcast where trial lawyers learn how to free themselves and the jury. And now your host, Sari de la Motte…
Welcome to the “From Hostage to Hero Podcast,” my name is Sari de la Motte and I’m known as “The Attorney Whisperer.” I couldn’t be more excited about the launch of this brand-new podcast as my fans have been asking me for more audio content and I’m happy I can finally oblige!
For those of you who are new to my work, allow me to tell you a little bit about myself; first and foremost, I am -not- a trial lawyer. I am a communications consultant that specializes in helping attorneys communicate with jurors. I work with speakers of all kinds but I primarily work with trial attorneys. I’m based in Portland, Oregon but work all over the United States and Canada. My clients include several members of the Inner Circle of Advocates, I’ve spoken with Rick Friedman, Roger Dodd and Randi McGinn, Bill Barton has been a guest on my stage at events here in Portland and Trial Guides just released my brand-new DVD: The Power of Presence last month.
I’m currently working on a book called, From Hostage to Hero, which means you, dear listener, are going to get a sneak peak of the content I plan to include in the book; in fact, we’re going to travel this journey together, for as I am writing the book I’m also producing this podcast so you are getting my freshest, best ideas, which I am so excited to share with you.
In this inaugural podcast we’re going to talk about the concept of juror as hostage. I’m going to show you why I think jurors are hostages and how choice changes everything. My hope is that you’ll leave this podcast with a better understanding of the juror mindset and how impactful choice is on jurors, as well as society at large.
Now to understand this concept of hostage to hero we first have to understand where jurors are when we first meet them in the courtroom. I don’t mean where they are physically, I mean emotionally.
To do that, allow me to introduce the SCARF model. S-C-A-R-F. David Rock, author of Your Brain at Work 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. Jury selection threatens jurors in each and every one of these areas.
Most people list public speaking as their number one fear. (Number ONE!) Death is number two. Comedian Jerry Seinfeld once remarked that this means that the average person would rather be in the casket then giving the eulogy at a funeral. Joking aside, this is a real fear for most people. But why? Why is public speaking so threatening? It threatens status. Our status or “rank” is important both societally and professionally. We all want to be admired and respected, which is why public speaking is so scary for a number of people. Public speaking has the power to embarrass us and humiliate us in front of our peers, which can lead to a decrease in status.
Jury selection puts jurors on the spot and asks them to share their most personal thoughts, feelings and experiences in front of total strangers. Status is suddenly on the line. Maybe they worry that they might reveal something embarrassing. Maybe they are ashamed of their job or their marital status. Maybe they hold views that aren’t popular. Whatever it is, this fear activates the survival response.
Most of us can avoid public speaking should we wish to. But not jurors. Participation in jury selection requires public speaking. In fact you are forced to speak in public! This threatens a juror’s status.
Why is it hard to get jurors to talk in voir dire? Jury selection activates the survival response.
Jury selection also threatens jurors due to a lack of certainty. Jurors don’t know how the jury selection process works; the average Joe thinks that lawyers get to pick who they like and get rid of those they don’t. Think about that for a moment: jurors don’t understand a process that has the power to affect their lives for a number of days, weeks or even months. And even if jurors did understand the process, they still face the uncertainty of waiting to see if they are chosen to serve. Lack of certainty is present throughout jury selection, down to the smallest details. For example, in most cases jurors don’t even know when lunch is.
At the very least, lack of certainty creates resentment, but the bigger issue is that lack of certainty activates the survival response. Again, our brains are wired to view unfamiliar people and places with suspicion. Until we can determine that something isn’t threatening, we assume that it is. Lack of certainty keeps jurors in this confusing place, forcing them to view you, the process and their fellow jurors as a threat until proven otherwise.
This is the big one and the one we’re talking a lot about today.
Autonomy is the ability to make your own decisions and act freely without restriction. Several studies have been conducted relating to autonomy, or more specifically to the restriction of one’s autonomy. Researchers have found that people who lacked autonomy had uncontrollable stress, cognitive decline and even premature death.
As humans, we have to have independence and freedom in order to thrive. But at its most basic level, autonomy is the primary way in which we keep ourselves safe. Our ability to make decisions allows us to control dangerous or potentially dangerous situations. We all want to be able to leave situations where we feel uncomfortable in case they become unsafe. When autonomy is restricted, we feel trapped, like a caged animal. This is extremely threatening in any context.
Trial threatens a juror’s autonomy. Jurors HAVE TO attend jury selection; they have no choice. And if they’re picked to be on the jury? They can’t say no. They must serve. Is it any wonder jurors find the entire process threatening? They’re forced to be there. Jury selection removes a juror’s autonomy, creating yet another survival response in the brain.
Humans have a deep need for connection. “Love/belonging” is the third need in Abraham Maslow’s hierarchy of needs. Humans feel safer in packs: perhaps that’s due to the days when humans lived in caves and belonged to clans. If you were removed from your clan there was very little chance of survival.
We’ve all heard the adage, “There’s safety in groups.” A gathering of individuals, however, does not constitute a group. Until and unless a group is formed, jury selection is just a bunch of strangers who don’t know each other, you, opposing counsel or the judge. Most of us wouldn’t attend a cocktail party where we didn’t know anyone, much less jury selection where we’re going to have to answer personal questions in front of a group.
The absence of relatedness feels very unsafe to jurors. What’s the one thing most of us do when faced with a scary situation? Ask someone to go with us so that we don’t have to face it by ourselves. Jurors can’t do this. Jury selection forces them to “go it alone.”
In addition, absence of relatedness also ties into the other fears. Status is up for grabs. (Who’s the leader? What’s my role?) There’s no certainty. (What are the rules of this gathering? How does this all work?) Autonomy has been removed. (You mean I might not be able to go back to work for a week? How can I get out of this?)
The absence of relatedness in jury selection is just one more way we activate a juror’s survival response.
Okay, finally, Fairness
The entire jury selection process feels unfair to jurors. They have to be there. They have to speak in public. They don’t know anyone. They don’t even know how the whole thing works. They may not get paid. They may have to find childcare they can’t afford. They’ll probably miss their son or daughter’s baseball game. Being gone from work is going to tick off their coworkers and possibly their boss. Jury selection feels incredibly unfair, which the brain, again, perceivesas a threat.
But how does perceived unfairness activate the survival response?
Fairness, by definition, means everyone is being treated the same. Although all eligible Americans can, and most likely will, get called to serve as a juror, this isn’t much of a consolation for the juror who’s been called to jury selection TODAY. To this juror, on this day, jury selection is unfair and unreasonable. Everyone else gets to go about their merry way, but this juror is stuck in the courtroom, losing time with family, losing time at work, and losing money.
Let’s face it: serving as a juror is a hardship. It’s an incredible sacrifice jurors don’t willingly choose to make. Not only has their autonomy been taken away, so has their time and money.
If something or someone threatens a person’s ability to make money, take care of their family or go to their job, the survival response definitely gets activated.
So, hopefully, you now agree with me that jurors are hostages. They don’t want to be there.
Now think about that for a moment. What is the one thing that jurors MUST do above all else? MAKE A DECISION. Jurors must make a decision in the case. That’s their number one job. So let me ask you, how good of a decision are they likely to make if they’re being forced to make it?
I have an almost three-year-old daughter. She is VERY into making her own decisions. She wants to get in the car all by herself. She wants to decide what she has for lunch. She wants to pick what she’s going to wear.
But when she’s busy, when she’s doing something she’s absorbed in, whether that’s playing with her train set or watching cartoons, getting her to make a decision is IMPOSSIBLE. “Do you want baby carrots or goldfish?” I ask, only to repeat myself a thousand times. By the time I finally get her attention she just picks whatever I have in my hand so that she can stop being bothered and go back to what she was doing.
This is not the type of decision making we want jurors doing. But unfortunately it ends up being the exact type of decision making they default to. When you are being “bothered” you will make whatever choice is easiest just to get the person off your back. This is even more true if the decision you’re being asked to make is one you don’t particularly care about. And if you’re being held against your will? You will do anything to get free. It’s just human nature. You’ll pick whatever is easiest if it means you get to leave.
Now in plaintiff cases, what’s easiest to do, is nothing. As the attorney for the plaintiff you are asking the jury to take action. And the easiest thing is to do is -not- take action. To leave things as they are.
Look, we can talk all day about how to frame your case or craft your opening statement or what visuals you should use but none of that is going to make a huge difference unless the juror CHOOSES to be there.
Choice changes everything.
When jurors choose to be there, they come from a completely different place. They are now self-motivated instead of feeling forced to make a decision. They more carefully weigh the evidence, they’re more engaged, they pay attention during trial; isn’t this what we want?
We tend to think this happens if we get the information just right, or if we’re a dynamic speaker. Those things are helpful yes, maybe even essential. But it ALL begins with a juror’s choice to be there.
Let’s look at this in terms of biology. When we feel trapped, we activate our sympathetic nervous system. One of three things will happen: we’ll either attempt to flee, attempt to fight, or we’ll freeze. Doesn’t this mirror the jury pools we see? We have our angry jurors (that’s fight), we have our jurors who are just trying to get out of there by any means possible (that’s flee) and then we have our jurors who won’t speak up or offer anything when questioned in voir dire (that’s freeze.)
This is due to lack of choice. When we don’t feel we have choice we either get angry, attempt to escape or give up.
When our sympathetic nervous system is activated, we go into survival mode. And when we’re in survival mode, who are we looking out for? Ourselves. No one else matters. Not you, not my fellow jurors, and certainly not the plaintiff. They’re the reason we’re trapped here in the first place!
Now there have been attempts to remedy this by working with that very survival instinct by focusing the juror on the defendant’s conduct, in other words, sure, you feel forced to be here, but if you don’t vote our way, not only will you feel trapped for a few days or weeks, this guy or gal could threaten your safety out in the real world.
And it works! To a point. Connecting a verdict for the plaintiff with safety of the community is a brilliant strategy, don’t get me wrong. However, jurors still need to choose to take this mission on or the entire thing becomes moot.
Think about this in terms of the concept of a hero. We are offering jurors the chance to become a hero by not only “rescuing” the plaintiff but the community at large. But just like it isn’t heroic to see a burning building, pull out a gun and force a passerby to go into the building to rescue someone, it isn’t heroic if jurors return a verdict in a process they felt trapped into participating.
Heroes choose. They choose to run toward danger when everyone else runs away. They choose to do things that other people say no to. So your job as a trial attorney isn’t to apologize for the inconvenience of jury duty to jurors, or to thank them for their service. Your job is to get them to choose to participate so that they make the best decision possible for you and your client, and in the process, become a TRUE hero.
So how do we get jurors to choose? We’ll explore that, and how to invite them to be heroes in future podcasts.
Until then, visit our website at attorneywhisperer.com and click on trial consulting to see a variety of ways to engage with me, including access to my free Trial Tips video library. You can also click on the links in the show notes to get direct access.
Have a trial coming up? Schedule a FREE One-On-One 30-minute consult with me to talk about the issues in your case. The link to do this is on our website and also included in the show notes.
Thanks everyone for joining us! I look forward to hearing from you on our facebook page. Feel free to send me an email at email@example.com, and until we meet again, I invite you to “Find your voice and speak it powerfully.”
Sari de la Motte is the host of "From Hostage to Hero" and has been dubbed the "Attorney Whisperer" because of her unique ability to help attorneys communicate their real selves.