In From Hostage to Hero: Captivate the Jury by Setting Them Free, trial consultant Sari de la Motte provides detailed examples from real cases to give you clear, practical steps that you can take to better communicate, engage, and inspire jurors to take action and become the heroes your clients need to obtain justice.
In the abridged excerpt below, de la Motte demonstrates how to create a voir dire that gets jurors talking and engaged by focusing on the underlying principles that allow jurors to relate to the issues in your case.
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Advertisers spend hundreds of thousands of dollars—millions in some cases—to get your attention, even if just for a second. There are now ads in places that didn’t even exist twenty years ago. Whereas before most ads were in magazines and TV, making it fairly simple to ignore them should you wish to, now you can’t get away from ads no matter how hard you try. There are ads on Facebook, Netflix, and even in restroom stalls! Ads are everywhere. One article I read said in the 1970s the average American was exposed to about five hundred ads per day. Today? Between four and ten thousand. And it isn’t just advertisers vying for your attention. It’s your kids, your spouse, your boss, your coworkers, your friends, that article you saved last Sunday you didn’t have time to read…
Attention is a precious commodity. When you have the attention of a group, you owe that group something in return. They're giving you something that is in such short supply. You need to show them what’s in it for them.
Issue-Oriented Voir Dire
What’s in it for jurors? Why should they choose to participate and engage? Sure, most jurors end up enjoying the experience, but that’s not until trial is over. You simply don’t have time to wait until then. You need jurors invested now. But what will get them interested and engaged? Understanding how your case relates to them personally. You can’t tell jurors what’s in it for them until they know what the case is about. Heroes, remember, choose. In order to choose you and your case, they need to know more about it.
As I mentioned in chapter 4, “The Permission Principle,” every single communication interaction falls into one of two buckets: issue or relationship. You’re either dealing with an issue or tending to the relationship. Unfortunately, most attorneys, even if they understand this principle in theory, still forge ahead with whatever bucket they want jurors to be in, which is usually the relationship bucket. But that’s not how it works. You don’t decide what mode others should be in; your job is to understand what mode they are in and meet them where they are.
What follows, then, is how to create what I call an issue-oriented voir dire. An issue-oriented voir dire gets jurors talking about the issues in the case and how those issues relate to them personally. Creating this type of voir dire does two things: it meets jurors where they are—the issue bucket—which helps increase permission, and it shows jurors what’s in it for them if they participate. As you’ll see in a moment, every case has something to offer jurors because every case revolves around principles all jurors share.
Now I know you can’t talk about evidence or case specifics in voir dire. Creating an issue-oriented voir dire requires that you explore the principles underneath the issues present in your case. Principles are different from rules. A rule prescribes action. “A doctor must rule out the most dangerous condition first.” That’s a rule. It says what a doctor must or mustn’t do. A principle, on the other hand, is a true statement but doesn’t prescribe action. For example, “Diagnosing someone with heartburn instead of a heart attack can lead to death.” This is true, but it doesn’t state what should or shouldn’t be done.
The Fears List
One of the first things I ask for when working up a case with an attorney client is a fears list. What is a fears list? Anything and everything you fear in your case.
Fears List in Anesthesiologist Case
Here’s an example of a fears list from a winning case I helped work up several years ago. [The] attorney [...] sued a small-town hospital because they allowed an anesthesiologist to continue working with patients even after patients reported being sexually abused by the anesthesiologist. [The attorney] represented one of the women who was abused.
His fear list looked like this:
- The hospital had no way of knowing if the reports were credible or not. Several women did not leave their names or contact information.
- How could someone remember sexual abuse if it happened while under anesthesia?
- How can someone be “damaged” from sexual abuse if they couldn't remember it?
- The plaintiff in this case, a nurse, should have known the anesthesiologist wasn’t following protocol and protected herself. That is, she should have refused to go to a room where procedures didn’t normally take place, she should have requested another nurse be present, and so on.
- The nurse didn’t come forward for several months afterward, which makes her accusation suspect.
- The hospital is not responsible for the anesthesiologist’s actions.
- This is a small-town hospital; it wouldn’t survive a lawsuit.
And so on.
Every case has problems. To create an issue-oriented voir dire, you have to start with a fears list.
CREATE A FEARS LIST
Start by culling through defense arguments. What will the defense say about liability? Causation? Damages? Anything the defense may not say, but hint or suggest, such as your client is malingering, or they’re only in it for the money, should also go on the list.
Next, add your fears to the list. What are you worried about? What keeps you up at night? Perhaps you’re worried about how your client will do on the stand. [...] Maybe you’re worried about an interaction your client had with a nurse at the hospital and how the defense might use it against you. Any fear, of any stripe, belongs on this list.
Finally, add anything you’re afraid the jurors will think, even if you don’t think the defense plans to bring it up. For example, in most plaintiffs’ cases, at least some jurors will think, “Shit happens. It’s wrong to sue for every little thing.” This needs to be on your list.
Ideal Juror Profile
Once you have a fears list, you create an ideal juror profile.
“Now wait a minute,” you might think. “Ideal juror? Aren’t we looking for the bad jurors? The ones who will kill our case?”
Not at first. Of course you want to make sure to kick off jurors who are bad for your case. But as I’ve previously mentioned, if that is all you focus on, that’s all you’ll get. Not to mention those jurors aren’t too hard to spot. Ask any plaintiffs’ attorneys which jurors are bad for their case and you’ll hear, “Tort reformed jurors, people who can’t give money for pain and suffering, and people who think lawyers are greedy.” You don’t have any problem knowing who your bad jurors are. Just take a look at your fears list. Your fears list is the “bad juror” profile, right?
What you focus on you create. This is true in life and it’s true in court. So although you’ll be on the lookout for bad jurors, you’re going to walk in prepared with what a good juror looks like and call them forth. You’re looking for heroes, and you won’t find them by accident. You have to make a conscious effort to design what a hero looks like, actively ask them to reveal themselves, and then develop them once they show up.
Your job is to focus your gun on the real enemy—your opponent, not the hostages before you. You’re looking to build a team, and you want to be really clear about what you want that team to look like.
That’s why you create an ideal juror profile. It’s like putting together a job description. The things on the ideal juror profile are the qualifications your hero jurors need to have.
Let’s use the anesthesiologist case as an example. One of the fears on our list was that the victim was a nurse and should have known better. I asked [the attorney], “What would a juror have to believe to nullify or negate that fear?” Here’s his answer:
- Just because someone works at a hospital doesn’t mean the person knows the doctor is a molester.
- Employees have a right to safe care, especially when they’re a patient.
- Nurses shouldn’t have to be “on-duty” when they are patients.
We then went to the next fear on our list and continued to brainstorm ideal juror beliefs. Here are some ideal juror statements we came up with:
- We need to feel safe in our local hospital.
- Bad things can happen even in small communities.
- It doesn’t matter where a procedure is done. A patient should always be safe from sexual predators in a hospital.
- Just because someone works at a hospital doesn’t mean the person knows the doctor is a molester.
- Employees have a right to safe care, especially when they’re a patient.
- Nurses shouldn’t have to be “on-duty” when they are patients.
- When it’s a nurse’s word against a doctor’s, the doctor is often believed.
- It’s hard to talk about sexual abuse.
- Knowing others have been through it, and seeing them step forward, can give sexual abuse survivors courage to come forward.
- Just because someone doesn’t tell anyone about experiencing sexual abuse doesn’t mean it didn’t happen.
- It’s never too late to come forward.
- Sexual abuse can be psychologically damaging.
- Sexual abuse can affect all aspects of a person’s life.
- Just because someone looks and acts OK doesn’t mean she isn’t seriously hurting on the inside.
- Not keeping records makes the doctor look bad, not the patient.
- It’s not the patient’s responsibility to make sure records were kept.
- Just because there aren’t records of a medical procedure doesn’t mean it didn’t happen.
- It’s not the patient’s responsibility to make sure a nurse is present.
- When people are in severe pain, they don’t pay attention to their surroundings.
Do you think a list like this might make it easier for you to find your ideal juror? You bet it would! However, this is some of the most difficult prep you’ll do in terms of jury selection. It’s difficult because you’re asking your brain to do a flip: instead of asking yourself, “What’s wrong with my case?” you’re asking, “What beliefs would jurors need to hold to fix this?” Your brain isn’t used to thinking that way. You’re usually so focused on finding the bad jurors you don’t know how to accurately describe the good ones.
Remember: what you focus on, you create. If you want to find the jurors who are ready to fight for you and take heroic action, you need to know who they are!
CREATE AN IDEAL JUROR PROFILE
Take a look at your fears list. Beginning with the first fear, ask yourself this: What would an ideal juror have to think or believe for this to no longer be a fear in my case? Continue until you have a page or more of beliefs your ideal juror would hold. This is your ideal juror profile.
How to Find the Principle
If you go back and read the ideal juror profile we just created, you’ll see nothing on that list is case-specific. We don’t mention the hospital’s name or the patient’s; we don’t discuss the actual room where the procedure was done or specifics about what happened. Why? Because we can’t expect jurors to believe or think things they don’t know anything about. You don’t want to put case-specific things on your ideal juror profile list; you want to put things on your list that get at the principle behind the issue. You want things you can discuss with jurors without them having to know the details about what happened. For example, jurors can easily talk about whether the damage from sexual abuse is real without knowing the details of this specific case. They can also debate whether nurses should be treated differently from other patients and not have to know exactly what happened. Details are something they’ll learn during trial; in voir dire, we’re interested in what jurors think about the principles behind those details and how those principles relate to their own lives.
Patient Safety in a Skin Cancer Case
For example, I helped work up a case where a patient had skin cancer in his ear. The doctor removed the cancer, but didn’t get it all. As we created the ideal juror profile, I asked the attorney what an ideal juror would believe in this case. She responded, “Dr. Smith should have referred the patient to a Mohs surgeon.” A Mohs surgery is surgery performed by a doctor who is also trained as a pathologist. These doctors take a sample from their patient, but instead of sending it to a pathologist, they look at the sample themselves, right there in their office, with the patient still on the table, to check and see if they have removed all the cancer. This way, the doctors can go back and remove more cancer cells until all of the cancer is gone. In this case, the doctor knew about the Mohs surgery option but didn’t tell the patient. He didn’t get all the cancer cells, and the cancer spread.
However, “Dr. Smith should have referred the patient to a Mohs surgeon” isn’t a good ideal juror belief. Why? Because it’s too case-specific. We couldn’t expect jurors to have any familiarity with Mohs surgery, Dr. Smith, or why he should have referred the patient. Even if we did discuss what Mohs surgery is in voir dire, which we ended up doing, there’s too much back story to ever hope a juror would hold this belief so early in the game.
Instead we asked ourselves, What is the principle behind this issue?
And that was when we realized what we really wanted jurors to believe—that doctors should always choose the safest option for the patient. Jurors don’t need to know case specifics to share their thoughts about that principle. Additionally, this principle directly applies to them personally. We all want our doctors to choose the safest option. This principle applies to all doctors, not just the one in this case!
Loss of Business Case
Here’s another example. In this case, a landowner had an easement on his land, and the city decided they were going to build a highway. The landowner had a summer business that required customers to access a driveway on his property. He and the city negotiated that the city would not block his driveway during the highway construction.
But the city did block his driveway. They blocked his driveway for six months while working on the highway project, causing him to lose business. As we put together the ideal juror profile, we asked, What’s the principle behind what happened?
The principle is people should honor their agreements. Instead of hoping jurors would believe our version of the story, we conducted a voir dire that asked jurors about agreements. By discussing this in voir dire, jurors saw how the case applied to them personally because we all enter into agreements within the course of our daily lives and trust that people will keep their end of the bargain.
The principle is what you want on your ideal juror profile, not a case-specific belief.
Ask Why? to Find Your Principle
To get at the principles in your case and create an ideal juror profile, try the
Here’s an example:
- Why do you exercise? Because I want to lose weight.
- Why do you want to lose weight? Because I have gained fifty pounds in the last several years and want to get back to a normal weight.
- Why do you want to do that? Because I want to take care of my body.
- Why is that important? So I can have less back pain, have more energy, and not feel run down all the time.
- Why is that important? So I can play with my daughter and live a long life.
Ah. Now, we’ve gotten to the deeper reason for the exercise. I exercise in order to play with my daughter and live a long life.
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To learn more about creating an issue-oriented voir dire to successfully select a winning jury, including the additional questions, sequencing, and steps you need to take to follow de la Motte’s case-winning method (including expanded examples, templates, and more), click the link below to get your copy of From Hostage to Hero today.
