In this episode, we discuss how the same threats that your jurors face are the ones that you face in the courtroom. Using the SCARF model, we break down the common fears that confront you and begin to recognize that you are a hostage too.
When you're up against a hostile room with 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:
Welcome trial attorneys to another episode of From Hostage To Hero. We have been looking primarily at jurors, and today I would like to get started talking about you. Because as we've been discussing, the jurors are hostages yes, but you're a hostage too.Let's talk a little bit about what I mean by that. Of course, unlike the jurors, you are not forced to come to trial. Sometimes you are in terms of if they don't settle and you really want to take it to trial, but not forced in the sense that jurors are. You also get to choose your cases and your clients unlike jurors who don't get to make a choice about whether they get to stay or not, so you're not a hostage like jurors are but you are a hostage to one very important thing, that if you do not handle and ... or I should say get a handle on, you are in trouble. You are a hostage of fear.
Yep. Fear of losing, fear of screwing up, and fear yes, of the jurors themselves. In the last podcast we talked about how to change your mindset of viewing the jurors as the enemy, but this is one of the reasons why I started the last podcast with that, is because this fear of the jurors, of screwing up, of losing has the potential to absolutely derail you at trial. And you've got to get a handle on this idea of fear ruling you on one level or the other, because that's what we're going to do in the next couple of podcasts. Is we're going to look at some very specific what I call limiting beliefs that I've seen so many trial attorneys suffer from in the nearly 15 years that I've been doing this work.
Today, we're going to just take a broad view just like we did in one of the very first podcasts in terms of the SCARF model and how it applies to jurors. Today, we're going to talk about the SCARF model and how it applies to you.As we move into this content, one of the things I want you to be thinking about is the pressure that I see so many of you under. The outside pressure is one thing, whether you're going to lose case, whether you're going to lose the money that you put into it. All of the things that go into actually going to trial, that outside pressure. But the inside pressure is what I see that can be even worse. There's so much pressure that you put on yourself in terms of if you're doing it, "right." And in fact, the next podcast we're going to be talking about this idea, one of our limiting beliefs of having a formula, there's a formula out there.
Because I think you guys have bought into, or you gals or I should stop saying that, you trial attorneys have bought into the idea that there is a right way to do this. And with that comes this other thing, that's a problem, which is that really if you think about it, in terms of trial attorneys, this is a train yourself profession.Most of the skills that you need at trial you don't learn in law school. It's not until you get actually into your job and you start finding out what it is that's required, that you now have this new thing you have to do, which is go out there and find out how to actually do this. How to actually communicate with jurors, how to put your opening together. All of those things are done on your own, on your own time and on your own dime.
It's no wonder to me with all the pressure both the outside pressure of losing and so on and so forth, and the inside pressure of whether you're doing it right or if you're seeing the right CLEs or reading the right books or hiring the right consultants. It's no wonder to me that the rate of depression and suicide in divorce is just sky high with trial attorneys. And I really believe that yes, I want to help you with your trial skills and help you change your mindset, but you have to start thinking about this piece of taking care of yourself. And I don't just mean self care, but I mean really thinking about your job and your position and what you're doing in a very different way, because the skills are not going to be enough.This job is so freaking hard.
And when we're looking at what it takes to be a trial attorney, yes, skills are huge part of that. But it's not the only part. You also have to really look at how you are in the same boat as jurors, and how you can get out of that boat.Let's take a look at this in terms of the SCARF model. So again, the SCARF model I use it quite a bit. It's from David Rocks, book, Your Brain at Work. He talks about this sociological model that says we reward or punish people based on five factors. And those five factors, and we take the first letter spell the word SCARF, so the first one is STATUS, the second one is CERTAINTY, the third is AUTONOMY, the fourth is RELATEDNESS, and the fifth is FAIRNESS.
Now with the jurors, we talked about how these five things really apply to threaten jurors, because status is up for grabs. Nobody knows anybody else. They have to speak in public. They could embarrass themselves. So we know that jurors believe that's a threat. Certainty also provides a threat. And in terms of that, there's no certainty for the jurors. They don't know how you pick them, or if they'll be picked or how long the trial is. There's no certainty for the jurors. Autonomy, they can't choose to not be there. Relatedness, they don't know you, co counsel, defense counsel, each other. That's obviously a threatening situation. And because of that, the whole thing feels unfair. We know that in terms of the SCARF model for jurors, at least they're absolutely under threat. The brain perceives all of those things as a threat and they are in fight or flight.
But now let's take a look at how those things apply to you as trial attorneys. Because you might be surprised that you are in the same boat as jurors. I think understanding that is going to help you have more compassion for the jurors and to change your mindset, just like we talked about in the last podcast.
Let's start with STATUS. As a trial attorney alone, your status is in toilet. I mean, as far as the jurors are concerned, you are the reason why they are there in the first place.We know that it's not us that have actually brought the jurors there. It's the other side, it's the defense. If they had taken the responsibility in the first place then the jurors would never have to be here. But the jurors don't get that. They think the reason that they're there is because of you, you filed the suit, therefore, they now have to come and do this thing that they don't want to do. Your status is already in the toilet right when you begin. And not to mention you're a plaintiff attorney, right? You are greedy, you are there for money. No one wants to talk about money in our society, and the jurors think that you're just there with your Rolex watches and your fancy cars just for money. It's not for the plaintiff in their minds. So in terms of status that also puts you behind.
Not to mention, as I said, the inside pressure that you feel. The idea that you may screw everything up, that you may get this wrong. What if you forget your opening? What if the jurors don't talk to you? What if, what if, what if. There's all this internal pressure that you have in terms of status, in terms of screwing it up, doing it wrong. Just like jurors have this feeling of, "Oh my God, I've got to speak in public." So do you. You also have to speak in public, and that can be very nerve racking for many of you. In terms of status, you and yours are in the same boat. They don't have status because they don't know who anyone else is, what their rank is. They don't know each other, they don't have a lot of autonomy, that obviously cues into status. You don't have status, because you're a plaintiff attorney, you've brought them here, they don't like you. And you also have to speak in public and may screw it up, so those two things you guys share.
In terms of certainty, the jurors, again, as we said, don't have a lot of certainty, but neither do you, if you think about it. You have to decide which jurors are "good" and which jurors are bad. What's the right juror for this case? There's a lot of uncertainty in that. What methods should I use? Should I stand in front of the jury like Nick Rowley and ask them to be brutally honest, or should I ask them to share their fears, and share mine like Gerry Spence. Or maybe I should talk about their passions like Don Keenan I mean, they're just ... It feels like there's no right to do this, so there's no certainty on the exact like method that you want to use. And when you think about it, there's really no certainty in terms of how the jurors will decide. You could use the "right method" and pick the "right methods" and you still don't know how or if they'll decide for you, so there's a lot of lack of certainty again which puts you in the same boat with jurors.
Now that lack of certainty in terms of how they'll vote really cues in to the third fear the autonomy fear.Jurors can't decide to be there but you also have lack of autonomy, in that you don't get to decide the verdict, jurors do. And that's having to give up a lot of control. I think if we look at what drives attorneys crazy is ... and the reason why they believe that jurors are the enemy, is they so feel like this is unfair.I mean, this is so out of their control, they don't have autonomy, they don't get to make the decision, they have to leave it all in the hands of the jurors. And so in that way, both you and yours are in the same boat. They don't feel that they can't choose to not be there or they can choose to not be there. And you don't have any control over the ultimate end verdict. Again, same bucket, you and the jurors.
In terms of relatedness, jurors don't know anyone, they don't know each other. But you also don't know the jurors. If we were being honest quite frankly, some of you may say, you don't want to know that jurors. These are the people that hold so much power in your case, and that creates a threat to the brain in terms of I don't know who these people are, I don't know what they are going to do, and that is threatening. Because what you're doing is you're having to put your case in the hands of these people that you don't know. Again, relatedness is, or lack of relatedness is a threat in terms of trial for both you and the jury.
Finally, fairness is also an issue here. In terms of, it feels so unfair that you've worked up this case for months, if not years, and now you have to deliver it into the hands of amateurs who don't have any specialized training or knowledge, who only get to hear the facts for a couple of days, if not weeks, and then they get to make this decision that's just urgently important to you and your client. Not to mention that you start behind right? The other side if you're a criminal defense, they have the state, sometimes federal. They have the police force, they have everybody on their side. If you're a plaintiff attorney, the other side has unlimited time and resources and money. In many ways as a criminal defense attorney or plaintiff attorney in the two types of clients that I work with, you start behind.Not just in terms of status, but also in terms of what's available to you, and that can feel very unfair. Just like the jurors feel this is unfair, that they've been called to decide this matter and spend time on something they don't view as valuable, it also feels unfair to you as a trial attorney, that you have to deliver your case into the hands of jurors in this limited time, with a limited knowledge and limited expertise. That also feels unfair.
The reason I'm pointing out all of this is not to depress you. What we're going to do over the next several podcasts with some guests interviews thrown in here or there, but in terms of when you just get me by myself, is we're going to look at all of these things and how to reverse this.Because I really believe that you have to get a handle on the fear that trial produces in you, on any level. Some of you may love to be public speakers, some of you may love voir dire. I'm not saying that every single trial attorney has all of the fears that I've just talked about. But on some level every trial attorney I've ever worked with, from the greats down to the, I wouldn't say not great, but the beginning attorneys, is there's fear there on certain level, and you've got to be able to conquer that fear and stop trying to shove it down if you really truly want to be great.
Because here's the thing, trial activates your threat response.When we are standing in front of this hostile group, the natural response is to want to close up, and yet trial demands the absolute opposite. It demands that you open up, that you become vulnerable. Let's just put it out there, trial demands balls. Trial takes balls. That's what it requires. That you are this person that even though you know you may get shot and you may be viewed as a pariah, that you still stand there and ask the jurors to connect with you and see your point of view. That takes balls. And let me just say right now, that I admire those of you who are taking cases to trial and doing this kind of work. When I think about trial taking balls, I think of Randi again, who I am assuming doesn't have physical balls, but she has, man, she has balls when it comes to trial. She tells the story about how she went and she was writhing on the floor while she's telling the story of her client, and she gets objected too, and she handles the objection and she goes right back down to writhing on the floor, to tell the story of her client.
That's what we're talking about. We're talking about doing things that may draw an objection, that may not work out. That's what's required of you as a trial attorney, and those things can produce fear. And it's not until you can conquer that fear, that you can really get on your way to becoming great. 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. What we're going to do over the next several podcast, is look now specifically at limiting beliefs that you have, and ways that you can turn those around and have beliefs that serve you instead of limit you as a trial attorney. Because, now that you understand where jurors are at in terms of what their mindset is and how they're feeling like hostages, you now need to understand why you're a hostage to and how to free yourself before you can free the jury.
Just take from this podcast the fact that you're both in the same boat, and that should actually relax you and help you feel better. You're both on the same side. You have the keys both to your freedom and to the jurors,and as I show you how to free yourself, we'll then start moving into how to free the jury. Alright, until next time, I invite you to find your voice and amplify it. Now, you can do that in a variety of ways. You can go online at sarildlm.com and sign up for a Strategy Session with me. You just do that by clicking on trial consulting, and then the one on one tab. If you don't need any time with me, you can just buy our strategy session right there. It gives you the video either on Voir Dire or Opening or both. And it comes with workbooks and guidebooks and all kinds of goodies. You definitely want to do that if you're getting prepared for trial.
If you want to look more at the mindset stuff, go and sign up at amplify-project.com. That's going to be opening later in the spring. Lots of videos, lots of things for you. As trial attorneys, you can sign up for coaching once you become a project member. For now, we just have the wait list. And once you're on the waitlist you'll be getting things like our newsletter, our self care newsletter, our power up, blog on Mondays, so on and so forth. You can also subscribe to our Sound Check podcast, that's where we'll be talking about the skills that any speaker needs, whether you're in the courtroom or on a different stage all together. Join our From Hostage To Hero Facebook group, by going to Facebook and searching for that in the search bar and it should come up. You have to answer three questions and we'll let you in there. I'm in there live taking questions every week and talking about questions you might have about our podcast.
Those are the ways that you can connect with us, and find your voice, and amplify it. Until next time, we'll talk soon.
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" and has been dubbed the "Attorney Whisperer" because of her unique ability to help attorneys communicate their real selves.