Do you understand the plight of the juror?
And do you have concrete communication strategies to address their needs?
Learn more about why "We Must Preserve A Juror's Status."
Listen to From Hostage To Hero - Episode 2 now.
Check out these Highlights:
You’re listening to From Hostage to Hero Podcast Episode Number 2. We must preserve a juror’s status.
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. Welcome to our second From Hostage to Hero podcast! We are so excited to have you. This podcast is meant for trial attorneys looking on how to up their skill when communicating with jurors.
In the last podcast we talked about the concept of juror as hostage. I introduced the S-C-A-R-F model from David Rock, author of Your Brain at Work. David 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 someone or something is unfair are all perceived as threats by the brain. As I discussed in detail in the last podcast, all of these five needs are threatened by jury selection. Do check out that podcast to learn more.
My goal, as we move through these podcasts is to give you ways to first, understand the plight of the juror so that you can speak to their needs and two, give you concrete communication strategies to meet those needs.
So in today’s podcast we’re going to look at how we begin to turn things around. If jury selection threatens jurors in all five of these areas, how can we tap into the reward center of the juror’s brain, and reverse the threat that jury selection creates?
Because Status, Certainty, Autonomy, Relatedness and Fairness are all under attack during jury selection, we must:
Each of the P’s deserves its own podcast, so for today, we’re going to focus on the first P: Preservation of Status.
Status is defined as rank or position. Quest for status can be seen across several species; from humans to animals, status is something organisms recognize and strive toward.
For example, perhaps you’ve heard the phrase “pecking order.” Unfortunately, this description is literal; chickens will peck each other in a battle for status. Several other animal groups have established hierarchies and dominance structures as well. This is often tied to survival: the higher your status in the animal world, the better access you have to food and location in the pack (for example, being nearer to the outside makes you more susceptible to an attack by a predator).
Status is often a function of genes or physical features. For humans, however, that’s not always the case. Sure, like animals, humans often view those with specific traits in higher regard, but higher levels of status in the human world can be achieved in a variety of ways: through possessions, through achievement, through clothing, through intelligence or perceived intelligence and so on and so forth.
Now, just like animals, we’re hardwired to care about status. Just like animals, for thousands of years our status was linked to availability of resources and that helped us survive. But outside of basic survival, receiving admiration and approval from others is something we all crave. And for much of history, status was determined via your reputation; how you were perceived by others determined your worth.
So let’s look at this then from the prospective of jury selection. In any situation where a group of strangers are assembled, no one knows the “pecking order.” Who’s the leader? What is my “rank?” How am I being perceived? This “not knowing” can cause tremendous stress, and stress, as we’ll discuss in future podcasts, does not have a positive effect on decision making, the one thing we need jurors to do and do well.
In addition, not only do jurors not know their ranking in the group, but the very process itself has the ability to threaten whatever status is up for grabs.
Think about it: We put jurors on the spot and ask them to share their most personal thoughts, feelings and experiences in front of total strangers. This threatens status. Primarily because jurors don’t know what’s happening. Why are you asking what you’re asking? Is there a “right” answer? Is there a “wrong” answer? What’s the context? When jurors don’t understand the process and how it works, there is a HUGE threat to status because the “rules of engagement” so to speak, aren’t clear.
Have you ever played that game where you go out of the room and the people in the room decide who you are? Say…the Queen of England. When you come back in the room you must ask questions of the group to determine who or what you are. The person that guesses who they are with the least amount of questions wins.
This is kind of what it’s like for jurors. They have no idea what the context is, or what their role is. They’re asked questions in a vacuum, questions that seem to have no rhyme or reason in most cases.
In order to tap into the reward center of a juror’s brain, we, as the attorney, need to preserve a juror’s status. The first step is to address the power imbalance.
Jurors are the most powerful people in the courtroom. They decide the case! The problem is, they don’t feel powerful, especially at first. This is due, primarily, to a lack of information. **Jurors are the most powerful people in the courtroom, but they don’t feel powerful until they have information.
You, opposing counsel, the judge, you all know more about the case than jurors do. Jurors know next to nothing. And yet, we ask jurors questions, questions that relate directly to the case, expecting them to share their experiences, insights, and personal opinions when they aren’t sure why we’re asking in the first place. This threatens status.
For example, have you ever been working at your desk when your paralegal pops his or her head in and asks, “Are you free Wednesday afternoon?” If you’re like me, my response is always, “Why?” I don’t want to commit to anything until I know what it is. Jurors feel the same way.
It is incredibly fear-inducing to be put on the spot and asked to speak in front of a group when you aren’t sure about the context. This is why I suggest you provide context to jurors before asking questions. I call these context statements and include them in all of the voir dire I help attorneys create.
Context statements are simple and neutral. They do not give any information about the case that wouldn’t be allowed, nor are they argumentative. They simply provide context for the question you’re about to ask so that jurors can relax and feel empowered at the same time.
For example, if you are trying a car crash case, one context statement might be, “This case involves a car crash.” Simple. But don’t let the simplicity of the context statement fool you; context statements help jurors feel safe by giving them a reason for the question. I cannot tell you how many times in both mock and actual juries I’ve seen a perplexed look on a juror’s face after an attorney has asked a question. Sometimes they don’t understand the question, but in many cases they don’t understand why the attorney is asking the question.
I cannot emphasize enough how providing jurors context will help you preserve status. It shifts the power imbalance. You have more information than the jurors. By sharing that information, the power shifts. Jurors begin to have equal footing, and as jury selection continues, that power grows. The more they learn, the more empowered they are. We tell jurors all the time how powerful they are, but it just feels, to most jurors, like something to say in order to get in their good graces. Actually empowering them is different. And when it comes to trial; information = power.
Now, if you want to try incorporating context statements into your voir dire, it’s important that you put your context statements in order. Here’s why:
Storytelling is an essential trial skill but we rarely apply it to voir dire. This is a mistake. If you order your context statements, you can successfully use storytelling in voir dire as well as opening. The brain loves storytelling; it’s a terrific way to deliver information. The more clearly you can communicate the context to the jury, the more empowered they feel. When jurors feel empowered, they gain the confidence to join the conversation. Think of it this way: If I don’t understand what it is that we’re talking about, I’m going to avoid speaking up in case I end up looking stupid.
There are four components of a good story: Setting, Characters, Plot, and Theme. To utilize storytelling in voir dire simply ask questions in that order. Any questions to do with the setting go first. Questions that have to do with characters, they go next. Questions regarding plot go third, and then end with questions related to the theme. Now this is just a general rule of thumb. It doesn’t apply to every case in this way. Sometimes we’ll talk about Characters first and then the Setting, but in general, it makes sense to set the scene (that’s Setting), introduce the characters (that’s Characters), talk about the Plot (what happened?) and then weave the Theme throughout or start the Theme questions right about there.
This also taps into the reward center of a juror’s brain. No one likes a story told out of order; it doesn’t make any sense! The same goes for voir dire. Even though your context statements should remain neutral and simple, that doesn’t mean you shouldn’t pay special attention to the order.
For example, I once had an attorney come to one of our studio classes, and we were talking about this very thing. With the morning jury, on the Saturday that we have the two juries, he did this out of order. He started with a question about the Plot. This particular case had to do with four teenagers, all drinking, got in the car, got in a crash, passenger suing the driver. That’s basically how he started voir dire. So when he started to ask questions about the plot, the jury was incensed. They could not believe that he would bring a case like this to trial. How dare the passenger sue the driver when they were all drinking?
So over the lunch break, I said to him, “You’ve got to do this differently. You’ve got to follow the story arc. Let’s start with some setting and character questions before we get to the plot.” And that’s exactly what he did.
So in the second jury, he started with “This case involves a car crash. Who here has been involved in a car crash?” He got some questions going around that. “This case involves teenagers. How many of you were a teenager at one time?” Everyone laughed. “Do teenagers make the best decisions? No.” We had a great conversation about that. “Now in this case, we’re also talking about alcohol. How many of you talk to your kids about alcohol? What about drinking and driving?” Now by the time he got to Plot, boy did we ever have a different jury! This jury was all for the passenger, and was like, “Well, he was drinking, but he didn’t choose to drive. The other guy chose to drive.” Completely different situation. Same questions, just in a different order.
Here’s an example from a winning case where we followed this structure in voir dire. Here’s the first context statement:
Context Statement #1: “The incident you’re going to hear about in this case happened at a hospital.” (Setting)
Now, notice I don’t use the hospital name. I’m not talking about the defendant. I’m just saying, “Hey! We’re talking about a hospital.” And then we ask some questions…
“Who here has ever been hospitalized?”
“How did you feel about the care you received?”
“Is a hospital responsible for the behavior of its staff?”
So that’s all the context stuff. I’m sorry…SETTING stuff. Then we went to the second context statement that was introducing the Character.
Context Statement #2: “The patient in this case is a nurse.” (Characters)
So then we asked some questions about that…
“Does being a nurse make her more responsible for her safety than someone who isn’t a nurse?”
“Should hospital staff be treated differently than non-staff when they themselves are patients?”
The third context statement now introduced the Plot…
Context Statement #3: “The patient was under anesthesia when the hospital’s anesthesiologist sexually molested her.” (Plot)
“How aware are you of your surroundings when you are in pain?”
“What responsibility does a hospital have to protect a patient from abuse while under anesthesia?”
And then my favorite question…
“What responsibilities does a patient have to protect herself from abuse while under anesthesia?”
Context Statement #4, really having to do with Theme: “You’ll hear a lot about hospital procedures in this case.” (Theme)
Questions we asked there were…
“How many of you have to follow procedures at work?”
“When something ‘bad’ happens at your workplace, perhaps someone is injured, for example, how does your work handle it?”
“Is sexual abuse something a hospital can foresee and prevent?”
“What should a hospital do when they suspect a crime has occurred?”
As voir dire progresses, you can see that jurors learn a little bit more about the case each time we say that context statement. Jurors learn that this happened at a hospital, that it involved a nurse, that she was abused by an anesthesiologist, and that hospital procedures probably had something to do with it. Asking questions in order is incredibly satisfying to the juror brain. Remember: the brain perceives jury selection as a threat; we want to do everything we can to minimize that threat and put jurors at ease.
Providing jurors with context before asking them questions preserves their status by making it easier to speak in public. The more informed the jury, the more comfortable they feel. The more they know, the more powerful they are.
Now, one last comment on status before we end this podcast, and that’s in regards to your status. Jury selection is, and should be, about the jurors. I cannot tell you how many voir dires I have observed where the attorney made it all about them and not the jury. That said, it is important that you clearly communicate your role to the jury, and fast.
“Who’s the leader?” is what every unformed group is thinking once they are assembled. And here’s the thing: leadership is up for grabs. I fully intend to do a series of podcasts on leadership in the future, but for now, know that it is your job to show up as the leader, for the jury, and this also preserves status. How? Because leadership provides safety. When there are a bunch of people who don’t know anything or each other, it’s the leader who creates safety and provides calm.
And here’s the thing…Leadership is communicated. It’s a blend of position and person. Jurors need to know that you CAN lead them but they also need to know that you care and that you’re a real person. This is the winning combination. Leadership is not a function of role or authority, anyone who communicates leadership is the leader. Period. We’ll look at this in more detail 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. 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 on our website or just click on podcast up in the menu on the homepage.
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! See ya next time.