The biggest thing you can do to protect a juror’s autonomy,
is to actually give them a choice.
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You’re listening to From Hostage to Hero Podcast Episode number 4. The biggest thing you can do to protect a juror’s autonomy, is to actually give them a choice.
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, aka the Attorney Whisperer. I’m so thrilled that you’re here and listening; I’m having such fun recording these podcasts and hope you’re having as much fun listening to them as I am creating them.
In the last several podcasts we’ve been talking about the concept of juror as hostage. We’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. Those five things are Status, Certainty, Autonomy, Relatedness and Fairness.
We’ve also been moving through theFive ‘P’s’ that will help us reverse the threat jury selection creates, those P’s being:
We tackled Provide Certainty in the last podcast, so in today’s podcast, let’s move onto “Protect Autonomy.”
Ooh, this is the big one, isn’t it? Yes, jury selection threatens a juror’s status by making them speak in public, 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!
Jurors cannot choose to not attend jury selection. They MUST attend. This threatens their autonomy. So let’s talk about why this is such a big deal and how you can reverse this threat.
Autonomy can be defined as freedom from external control or influence; independence. We all want to feel like we’re the captain of our own lives. That we can make our own decisions, decide our own schedules and operate with basic freedom in the world. When that ability is threatened, however, we feel incredibly unsafe.
Part of this is due to the fact that we think our autonomy keeps us safe. If we’re being told where to go and what to do, and not only told, but forced, this limits our ability to keep ourselves safe. Someone else is in control, and we don’t understand or know their motives.
Now even though jury selection isn’t threatening on a physical level, it still activates the threat response due to lack of autonomy. Jurors can’t decide to not attend. They can’t decide to not participate. They can’t decide when to show up or when to leave. All of that autonomy is taken from them.
And guess what: this REALLY pisses them off. Why are most jurors hostile? We tend to think it’s because of tort reform or the bias against plaintiff attorneys or the fact that what we’re arguing over is money, and we are VERY uncomfortable, in western society at least, as in other cultures, talking about money. And sure, all of this is part of the hostility we feel from jurors. But the real reason jurors are so hostile is because they are being forced to participate! They don’t have a choice.
Imagine for a moment you’ve been forced against your will into a room full of strangers. You’re told that you must wait. For what, you’re not sure. You don’t know anyone in the room or the people who have taken you into their custody. As the hours wear on you grow weary and hope this will be over soon, but just when you think you can’t wait anymore, you are hustled, along with the others, to a different room. Now the interrogation begins.
You begin to sweat as new captors grill your fellow inmates. You’re not sure what’s going on and you hope they’ll leave you alone. As you squirm in your seat, anxious about being the next victim to be questioned, one of the captors sets his sights on you. As the questions come at you like machine-gun fire, your mind goes blank: everyone is watching, and you’ve forgotten what you were going to say. Your face gets hot and your collar gets tight as you stammer and stumble over your words, hoping you get it “right.”
You’ve noticed that the captors have let some hostages go. You hope that if you can come up with the right thing to say, they’ll let you go too. You try to mimic the ones who were able to break free, but a person wearing a black robe sitting high above everyone else lectures you about your duty to remain and shames you for your pathetic attempt at escape.
Several hours pass and you’re now tired and hungry. You also have to go to the bathroom, but it’s clear you can’t just stand up and leave. Suddenly the person wearing the black robe says you may now have a break but warns you not to talk to anyone. You and your fellow hostages awkwardly stand in line for the restroom doing your best to avoid eye contact. You’re lucky to get the last cup of weak coffee from the machine when suddenly you’re pulled back in to the interrogation room only to learn that you’ve been “chosen.” You can leave, they tell you, but you have to come back every day for three weeks. Your mind races as you think about how you’ll cover shifts at work and who will pick your kid up from school. As you’re contemplating your captivity for the next three weeks, the person in the black robe commands you to stand and raise your right hand. You’re forced to swear to do your best at a job you never chose to do.
That’s an excerpt from my upcoming book, From Hostage to Hero, due out in 2019. You’re welcome. Heh. But in all seriousness, this is what it is like for jurors!
Alright, so how can we 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 can 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. 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. We’re going to talk about how to do that in the next podcast.
But the biggest thing you can do to protect a juror’s autonomy is…wait for it…actually give them a choice.
Look, so often we view jury selection as a time to deselect jurors. We stand in front of this group of people and think “who here is out to get me? Who do I need to kick off?”
This is like writing an ad for a job you’re offering at your firm. In the ad you give the job description, discuss the qualifications, and list the benefits. But then instead of waiting and hoping for the most qualified eager candidates to show up, you instead start looking for the ones who you don’t want to hire. Does this make any sense? It doesn’t to me. If I’m looking for the best possible candidate, I HOPE that person shows up, not the worst candidate. Of course I’m not going to hire the candidates that aren’t a good fit, and I’m not suggesting you do that either. But what I am suggesting is that instead of worrying about who you want to kick off, you start thinking about who you want ON.
If I’m a trial attorney looking for justice for my client, you better believe I want to assemble an army of soldiers who are willing to go to battle for me. Because that’s what jurors do, don’t they? They continue the fight you’ve started. Behind closed doors. It’s your job to give them the tools to do that, but first, you’ve got to get them to sign on to your mission, to WILLINGLY join your team instead of looking for who to kick off and then making do with whoever is left.
What’s a hero? Let’s say the building across the street is on fire. A woman is standing at an open window as smoke pours out, holding her tiny baby. She is screaming for help. A man walks by on his way to work and hears her screams. He drops his bag and sack lunch and springs into action. He crawls up the fire escape and puts himself in grave danger as he reaches for the baby. He grabs the baby and brings it to safety as the firetruck arrives and helps save the woman. He is a true hero.
Contrast that story with the following: the building across the street is on fire. The same woman and baby need help, but this time, a man with a gun points it at a bystander and forces the bystander to climb the fire escape to help the woman and her child. Is the act still heroic? No. Even though the bystander’s actions were identical his actions are only heroic when he choosesto take heroic action versus being forced to.
“What’s the difference?” you might think. “Either way he saved the baby.” True. But this isn’t always the case in trial. There is no gun pointed at the juror’s heads, forcing them to vote your way. Yes, they must stay and participate if chosen, but you can’t force them to make a decision in your favor. It’s not until they choose to participatethat their verdict becomes heroic.
How do you get jurors to choose? Give them an actual choice, to start with. Instead of neglecting the ones who might actually want to help you, by focusing on finding the ones you -don’t- want, show them why they’re there. Describe the mission. Tell them what they’re going to have to do. Get their buy in early and often and you’ll see that jurors begin to willingly give up their autonomy to join your cause. Only then will you truly see the jurors who aren’t a good fit and at that point you can let those ones go. But the mindset is completely different.
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.
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. In addition, don’t forget to check out my podcast for speakers of any stripe: Sound Check. The link to sign up for that podcast is also in the show notes, or just click on thepodcast tab up in the menu on the homepage of our website at attorneywhisperer.com.
Have a trial coming up? Schedule a free 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.
Until we meet again, I invite you to Find Your Voice and Speak it Powerfully. Thanks everyone for joining us!