Expert

105 – Keith Mitnik – Deeper Cuts: Systems That Simply Work

In this episode of the Trial Lawyer Nation podcast, Michael sits down with legendary Morgan & Morgan trial lawyer, podcast host, and author, Keith Mitnik, for a second time. They discuss Keith’s recently released book, “Deeper Cuts: Systems That Simply Work from Winning Workups to Thumbs-Up Verdicts,” new voir dire techniques, and the importance of words.

Jumping right into the podcast episode, Michael asks Keith how he gets full damages on cases with no obvious villain. Keith shares a recent example where he framed everything around the statement, “It’s not about how much she’s going to get. It’s about what was taken, and what’s a fair value for what was lost.” He draws an insightful connection between our modern-day justice system and the “eye for an eye” justice system of the past. The “brutal” eye for an eye system was never about the punishment, but about recognizing fully what was taken from the person who was wronged. He’ll explain this concept to the jury, and the results are powerful.

Keith continues by explaining the evolution of his voir dire process over the years, including how and when he gets the jury to get a discussion going. He’s tried many methods throughout the years and shares their flaws, but feels very good about his current strategy, which he calls “The First Big 3.” He’ll set up voir dire with the story about full recognition, then start questioning the jury on the big 3 types of bias:

  1. Feelings against this type of lawsuit.

  2. Feelings against the non-economic part of pain and suffering.

  3. Feelings against large verdicts.

After asking the jury about these 3 items, he’ll share the idea that it’s not about how much was taken, but how much was lost, and ask how it felt when they heard that.

Continuing this line of thought, Keith adds another change he sometimes makes to his voir dire, which is asserting that the jury’s job is not to assess the income of your client – it’s about the value of his or her health, which is way more precious than income. These changes have made for a great dialogue between Keith and the jury.

Michael then asks Keith about something he loved in the book – having the client create a list of the “little things.” Keith explains how we often base damages around the big things that are important to the client – but especially with hobbies, those things are rarely important and are often unrelatable for the jury.

To assist with this process, Keith gives clients a small notepad and a homework assignment- to write down every little thing they notice has changed due to their injury. This includes things they continue to do but in a different way and things they do but now it hurts. Then, he’ll sit down with the client to choose a list of the best ones. By the time the client is deposed, the client is able to readily provide a laundry list of relatable examples of how the crash has changed their life, and the defense lawyer is highly motivated to settle the case.

This leads Keith to share a brief but heartfelt story of a recent trial where he decided to ask the jury in voir dire about race, and why he plans to do it again in the future. It’s a story sure to resonate with any trial lawyer hesitant to bring up a sensitive topic in voir dire.

If you follow Keith Mitnik, you know he’s a man of many words – a self-proclaimed “word nerd.” So Michael asks the next logical question – why do words matter, and how does he come up with the words he uses? Keith explains the process he uses to find the best anchor words, where he circles any words he feels might not be the best, then turns to one of his many trusty thesauruses to see what else is available (He recommends either Word Hippo for iPhone or Wordflex for iPad). He shares some real-life examples before explaining the difference between inert words and activator words:

     Inert Words – Ambiguous words with different meanings to different people.

Activator Words – Consistently activate a particular meaning and a feeling.

From there, a word can be either a positive or a negative activator word, meaning it can work in your favor or against you if you aren’t careful. Keith shares numerous examples of inert and activator words, and how he chooses them based on the person he’s addressing.

Moving away from “Deeper Cuts,” Michael asks Keith what his strategy is for going into a case that someone else worked up to try it. Keith highlights the obvious disadvantages as well as the not-so-obvious advantages of this – notedly that he’s able to experience the case “in one, overwhelming wave, just like it will with the jury.” It provides a truly fresh perspective. His one requirement is that he needs to spend time with the client before the trial begins, to connect with them in his heart.

He continues by sharing the different ways he’s split cases up with other lawyers before, and how it varies depending on the other lawyer’s experience and skillset – though as you probably know, he almost always takes the voir dire, opening, and closing.

Michael and Keith then wrap up the episode with a promise to have Keith return soon. In the meantime, you can purchase his books Deeper Cuts: Systems That Simply Work from Winning Workups to Thumbs-Up Verdicts and Don’t Eat the Bruises, listen to Keith’s own podcast “Mitnik’s Monthly Brushstrokes,” and even join his listserv. To join, email Keith at kmitnik@forthepeople.com and copy his assistant Mary Arnold at marnold@forthepeople.com asking to join. They’ll even send you the past editions if you ask!

This podcast episode also covers why it’s important to emphasize your client’s injuries were brought to them “unnaturally,” a story from a recent trial where Keith had to improvise with a client on the stand, how to combat a convincing defense expert, why Keith almost always does both voir dire and opening, and much more, including numerous stories of Keith’s real-life trial experiences.

 

Bio:

Keith Mitnik is the author of Trial Guides’ bestselling book, Don’t Eat the Bruises:  How to Foil Their Plans to Spoil Your Case.

He is also known for his popular audiotape series “Winning at the Beginning” and for his monthly podcasts.

He is a frequent keynote speaker at seminars for trial lawyers across America.

Keith is Senior Trial Counsel for Morgan & Morgan. In that role, he is in trial almost every month, oftentimes 2 or 3 times a month, trying everything from suits against cigarette companies, medical malpractice, and product cases to car crashes and premises cases.

His list of verdicts is staggering.

He has been a commentator on many national television broadcasts and has been interviewed by Mike Wallace on 60 Minutes.

Keith is recognized for creating and teaching systems that simply work – for any lawyer, in any case.

Lawyers all over the country attribute significant verdicts to his methods.

 

102 – Michael Leizerman – The Value of Life: Understanding What Was Taken

In this episode of the Trial Lawyer Nation podcast, Michael Cowen sits down with the Zen Lawyer, Michael Leizerman, for his second time on the show. They’ll cover the importance of language in trial, the difference between something being “taken” vs. “lost,” connecting with your client, Leizerman’s upcoming Zen Lawyer workshop, and so much more.

The episode begins with Cowen asking Leizerman how he’s doing, then immediately retracting the question because he just asked it. Leizerman says this is actually the perfect way to begin the episode, because they’re going to talk about habits. Phrases like “pain and suffering,” harms and losses,” and others have become the go-to for trial lawyers everywhere – but that doesn’t mean they’re the most effective phrases to communicate your client’s injuries. Instead, Leizerman encourages you to think about it a different way; how the defendant took something from your client. 

Diving into further detail, Leizerman uses the example of how you feel when you lose your phone, versus when someone took your phone. When someone takes something from someone else, you feel like they need to either give it back or compensate them for their loss. In the personal injury world, there is no way for the defendant to give back what they took, so they must pay the value of what was taken.

This strategy also changes how the jurors see it. Jurors know it’s wrong for someone to take something. When you give them an active wrongdoer, and describe what they took, it can be very powerful.

Next, Leizerman shares the importance of describing what the defendant took from your client. This goes much deeper than the medical diagnosis, where most lawyers stop. If the client can’t work anymore or can’t play little league with their daughter, this goes down to the very state of their being, and you need to make this very clear to the jury.

“[The jury’s] sole job is to put a value on what was taken from [my client].” – Michael Leizerman

This discussion naturally flows into a topic frequently covered on the podcast – the case is about what we choose to make it about. Using the example of a herniated disc case, where the defense almost always claims there was degeneration prior to the incident, Cowen describes how he uses the treating doctor’s deposition to describe what the client’s life was like before the incident and what was taken from them. Leizerman loves this example and describes how he uses the defense’s medical expert to make the same point brilliantly, citing an impressive recent $10,988,000 jury verdict in a herniated disc case.

After discussing why it’s so important to spend time with a client in their own home, they transition to the concept called “companioning,” where you are present for someone’s pain without trying to fix it. Leizerman shares a deeply personal experience with his mother, who is currently in hospice, where he held her hand and sat with her for a long time. Applying this to lawyering, Leizerman says he has many phone calls with the client where he only speaks about 5% of the time. He simply listens, lets them speak, and every time they thank him for the conversation.

Cowen then adds that one of the greatest self-imposed sufferings in his life has been his “need to fix.” Over the years, he has gone on a journey to accept that his job is not to fix – it’s to get the client as much money as he can. Leizerman deeply relates to this feeling and gives it the term “empathetic distress.” Flipping the script, Leizerman then asks Cowen to dig a little deeper into how he’s coped with his need to fix. He gives an insightful answer and shares a meaningful example from a recent wrongful death trial, where the verdict gave the spouse such a feeling of validation. Leizerman agrees and had a very similar trial recently, where simply being heard was the most important thing for the client.

“My job is to reduce suffering in the world, and that includes reducing suffering in my own life.” – Michael Leizerman

Cowen then asks Leizerman what skills he has used to comfort people who are grieving. Leizerman describes how he is truly present with his client in their pain and aware of their energy. He recognizes the concept of energy may sound “wacky” to some, but he believes it works for him and makes a real difference in his connection with his clients. This has served him well in depos, where the defense will want to take a break as soon as his client begins crying or showing strong emotion. The clients feel supported enough to continue through the tears and pain of that moment, often resulting in a very powerful deposition.

They end the episode by discussing Leizerman’s workshop on Zen meditation. Cowen has attended before, and credits it to a huge jump in his skills and mindset. It has helped him be more present in the moment and make him an overall happier person. Leizerman appreciates this, and adds that Zen Buddhism is non-theistic and not about being calm all the time, but being truly present in a moment. Michael Cowen encourages all lawyers listening, especially lawyers with some experience under their belt, to attend.

Michael Leizerman’s next workshop will be held October 19th-22nd in Toledo, Ohio. You can learn more about the workshop and register here.

This podcast episode also covers why you shouldn’t beat yourself up when you misspeak in trial, why you need to tie the wrongdoing to what was taken, the details of both Cowen and Leizerman’s most recent wrongful death trials, why it’s important to look for non-portrait photos of your client before the incident, Michael Cowen’s experience at Michael Leizerman’s Zen workshop, and much more.

 

Guest Bio:

Michael Leizerman is a partner at The Law Firm for Truck Safety, which handles truck accident litigation across the United States.  He is the co-founder of the Academy of Truck Accident Attorneys (ATAA). He concentrates his practice in select catastrophic injury truck collision cases across the country.

Michael was the first Chair of AAJ’s Trucking Litigation Group. He and his wife and law partner, Rena, wrote the 4,000+ page treatise Litigating Truck Accident Cases. Together, they also spearheaded efforts in partnership with the NBTA and the ATAA to obtain the first and only American Bar Association-accredited board certification in truck accident law in the country.

Michael has taken 13 truck and bus cases to trial since 2006. He has received record-breaking truck accident settlements and verdicts across the country, including multiple verdicts with punitive damages. He and his firm have received multi-million-dollar results in over 50 settlements and verdicts.

Michael is also the author of the Trial Guides book The Zen Lawyer: Winning with Mindfulness, published in 2018.

 

66 – Dorothy Clay Sims & Dr. Oregon Hunter – The Lawyer-Doctor Duo: Exposing Deceptive Defense Doctors

In this Trial Lawyer Nation podcast, Michael sits down with attorney Dorothy Clay Sims and Dr. Oregon Hunter to discuss their research on defense-paid medical witnesses. They’ll discuss how the pair became involved in this research, Dorothy’s book “Exposing Deceptive Defense Doctors,” Dr. Hunter’s published study on the subject, and take an in-depth look at Dorothy’s favorite tactics for exposing deception in defense doctors.

The episode begins with a brief overview of what Dorothy and Dr. Hunter each do and how they became involved in it. Dr. Hunter focuses on watching video tapes of defense medical exams and generating charts of everything the “expert” lied about in those statements. In his initial study, he’s sad to say they lied or misrepresented the facts 100% of the time.

Dorothy explains how she used to have a large worker’s comp practice in Florida when she noticed a pattern – 60 of her clients were found to be malingerers by a Harvard-educated, smooth talking defense doctor. He was giving them all the same test, the MMPI (Minnesota Multiphasic Personality Inventory). Dorothy decided to sit down with the doctor who first created the test and found that the defense doctor was completely misrepresenting the results of the test. She even got the doctor who created the test to sign an affidavit saying, “If he was a student, I’d flunk him.”

This sparked a deep interest in the subject, and she began researching other tests to see how they’ve been manipulated to serve the interests of the defense. As her work gained more attention, she began receiving phone calls from David Ball himself telling her, “You’ve got to write a book, dammit. You’ve got to do it!” So, she complied and wrote “Exposing Deceptive Defense Doctors,”which Michael describes as “the Bible” for any case where you have a doctor on the other side.

Dorothy goes on to share some of her more shocking findings, from 40% of defense doctors lying about their degrees, to a doctor who was fired for stealing from a poor patient’s medical fund to pay for prostitutes. She also shares some creative resources she uses to find this information and implores all plaintiff attorneys listening to do their due diligence whenever there’s a doctor on the other side trying to discredit their client.

Dorothy then shares her detailed, organized method for marking up her depo notes, allowing her to go into every defense doctor deposition prepared with the pertinent information (and a record of their lies). She has now compiled 30,000 pages of information on thousands of defense doctors, which she is willing to share with any plaintiff lawyer interested.

The conversation shifts to Dr. Oregon Hunter, whose published study on the subject.  He explains how if you look at the medical exams from defense doctors, they will appear at face value as an exam of a perfectly healthy person. But when he watches the video tape of the exam, all he can say is, “Oh my god.” He goes on to share countless examples of doctors who claimed they conducted a test, but either didn’t conduct the test at all or were so sloppy about it that there’s no way they could actually tell if the client was injured or not. He also shares how they’ll often use templates which contain information that has nothing to do with the person they’re examining. For example, a patient’s ankles were described as “normal,” but there was just one issue – the patient’s legs had both been amputated.

Michael then asks Dorothy, what are some other things we need to look out for when they’re “trying to pull the wool over our eyes?” Dorothy shares her experience with brain scans and the defense doctor showing slices of the scan which do not show damage, when there are other slices which show the damage much clearer. She continues with other examples of similar practices with different injuries and concludes by emphasizing the need to always be on the lookout for “false choices.” For example, the defense will say a client who had preexisting arthritis cannot have a herniated disc from the crash, when in reality you can have both.

Michael continues on this note by sharing a story of a radiologist who attempted to re-define the word “trauma” for the sake of the defense argument. After finding the book the doctor was referencing (MRI of the Brain and Spine by Scott Atlas) Michael uncovered a paragraph which states, “there is no legal or factual basis to date when a herniation happened from looking at an MRI.” After bringing this up in the deposition, he effectively ended the radiologist’s testimony career.

The episode concludes with Dorothy’s final words of advice for deposing defense doctors. She recommends numerous helpful strategies, including having the plaintiff present when the doctor calls them a liar, having your own doctor present to induce what Dr. Hunter calls “the halo effect,” and finally (and most importantly) do your research. Does the doctor say they are board certified? Look into the organization (one even certified a cat). Does their CV say anything about Harvard? Definitely look into that, as she’s found 80% of defense doctors with Harvard on their resume are lying about it. Utilizing this advice and the excellent resources mentioned in this episode will ensure that even if the defense doctor is lying through their teeth, you won’t let them get away with it.

This podcast also covers gaining permission to video record defense doctor exams, sociopathy in defense doctors, what “grossly normal” on a report really means, the importance of reading the literature the defense doctor cites, and so much more.

You can reach Dorothy Clay Sims via email at dcs@dorothyclaysims.com and through her website at https://dorothyclaysims.com/.

 

Bio:

Dorothy Sims and her team combine decades of experience in medical, legal, and research fields.

On a daily basis, Dorothy consults with attorneys throughout the U.S., to provide methods of expert testimony cross-examination. If an attorney requests, Dorothy can depose experts herself. For more information about her consulting, visit the Consultations page .

Dorothy’s practice includes numerous other projects and philanthropic work. She is frequently invited to in-house seminars for lawyers and law firms on researching and cross-examining. She has given over 350 speeches internationally on medical/legal issues throughout the world and is often invited as the state keynote speaker. She has spoken in almost every state in the United States including Hawaii and Alaska. She has also been a featured speaker in Paris, France, Jaipur, India, and twice in Kyoto, Japan.

She has authored chapters in books with individuals such as David Ball and Don Keenan as well as Dr. Michael Freeman. Dorothy donates a percentage of her book profits various organizations including the American Association for Justice and the International Federation for Human Rights. Her book, “Exposing Deceptive Defense Doctors ” was a best seller for 3 years in a row and went into reprint status soon after publication, unheard of in the industry. She has also authored two children’s books for parents who are injured. The books are available for free upon request. She has also authored articles in national publications to include the Champion MagazineTrial Magazine (The American Association for Justice Journal) most recently on the cover of the December, 2015 issue, and Brain Injury Professional.

About Dorothy Sims

Dorothy received both her undergraduate and law degree from the University of Florida; and studied international law at Oxford University. She is licensed in the state of Florida, US District Court – Northern District of Florida, US District Court and the Middle District of Florida. She has also cross examined experts in many states throughout the US.

Dorothy initially represented miners in Kentucky who were denied black lung benefits. Going down into the bowels of a mine in Eastern Kentucky, she felt vibrations as the miners “shot coal” (exploded portions of the face to loosen the coal). Despite wearing a mask, her trip left her coughing and sneezing coal dust for days; leading to a newfound respect for the dreaded pneumoconiosis suffered by miners who had spent decades in the mines.

After representing coalminers, Dorothy began representing workers who were injured and denied medical care. She co-founded the Florida Workers’ Advocates – the state’s first watchdog over the insurance industry devoted to serving injured – and eventually served as president.

For over a decade, Sims volunteered time to lobby on behalf of the injured and was the first woman to be elected Chair of the Florida Bar Worker’s Compensation Section in its 22-year history. She also served as President of the Marion County Bar Association.

While practicing law, she began to notice an alarming pattern. Forensic experts hired by the other side were reaching conclusions by (1) misrepresenting the science (2) ignoring the science (3) misrepresenting the facts and/or their examination and/or (4) testifying beyond their own training and education.

About Dr. Oregon Hunter

Dorothy’s most recent addition to her team is Dr. Oregon K. Hunter, MD – a medical doctor licensed in Florida – who currently works on cases with Dorothy and other lawyers to determine if misrepresentations are made about the science. If you provide notice to defense counsel, he can attend a deposition as a non-testifying consultant. He can remote in for mediations to explain medical issues to the defense in support of the plaintiff’s case. He watches videotapes of defense exams and provides an analysis for lead counsel explaining what the other side’s expert misrepresented. For an example of an evaluation of a case conducted by Dr. Hunter in which the expert’s exam was videotaped contact us here.

Dr. Hunter is board certified in Physical Medicine and Rehabilitation and practiced medicine in Hawaii, California and Florida. He joined Dorothy’s team in 2015 and is an invaluable asset in reviewing cases.

Dr. Hunter is also available to attend mediations by video and explain weaknesses in defense’s position. Attorneys Evan Lubell (elubell@floridalegalrights.com) and Dan Ramsfeld (dan@ramsdelllaw.com) can be contacted as references for Dr. Hunter’s recent participation in their case.

 

62 – John Campbell – The Empirical Jury: Big Data with Big Results

In this Trial Lawyer Nation podcast, Michael is joined by attorney, law professor, and founder of Empirical Jury, John Campbell. They sit down for a conversation about big data for trial lawyers, what John’s company “Empirical Jury” does, legal “urban legends” and their validity (or lack thereof), the most interesting findings he has discovered working on specific cases, and an in-depth look at the effects of COVID-19 on jury attitudes.

The episode starts off with Michael asking John how he got into the field of jury research. John describes his path of starting out as a teacher and deciding to go back to school to become a lawyer. He then joined Denver Law School as a professor studying tort reform in an academic setting, founded the Denver Empirical Justice Institute, and discovered his passion for big data. There, he studied civil justice issues and how jurors behave, but wondered if he could apply scientific methods and big data to law based on an individual case. Basically, he wanted to know what would happen if he had 400 people look at a case instead of the traditional 10-15 people you get with a focus group.

Thus, Empirical Jury was born. John describes the process as working like a “gig economy.” He will share an ad along the lines of, “be a mock juror and get paid to do it,” and is able to recruit hundreds of workers in one day. The work is all done online in their own time, and costs much less per juror than a traditional focus group. With numbers like that, Michael asks what everyone must be thinking – how representative can your jury pool be? Are the respondents all underemployed young people? John says it’s more representative than you’d think. He explains how many people take online surveys for fun, like playing Sudoku. His participants range between 18-80 years old, very conservative to very liberal, and typically earn up to $150,000 a year.

Michael then inquires about the many “urban legends” of law applied to jurors, specifically are any of them true? The short answer is no, but John dives into some surprising details. The moral of the story is to avoid stereotyping based on factors like race or gender, but to instead focus heavily on their responses to bias questions. A juror who believes the burden of proof is too low for the plaintiff’s lawyer being placed on the jury can have detrimental effects on the outcome of the case.

John goes on to share some of his most interesting findings. The first addresses the idea that if you ask for more, you get more. He has found this to be true based on the anchoring principle, with an interesting caveat – the amount you ask for directly affects liability. Typically, the liability climbs the more you ask for until you hit “the cliff.” He shares a shocking example of this in practice and concludes with, “You’re your own damage cap.”

The conversation shifts to the highly debated topic of COVID-19 and its effects on jury attitudes. John has conducted extensive research on this topic, including a survey of 1,500 jurors asking questions about COVID-19 and trial options. He lists a number of shocking statistics and concludes that to seat a jury today you would have to account for a loss of 50% of jurors before asking a single voir dire question not related to COVID-19. Knowing this information, another vital question remains – do the remaining 50% of jurors skew towards the defense or the plaintiff? John explains how the answer is more complicated than most people think, but goes on to share some in-depth findings which have huge implications for the future of jury trials.

John continues by describing another study he conducted where he asked 1,200 jurors how they would prefer to participate in a jury, including a variety of in-person and virtual options. The respondents had a surprising favorite – the option to watch the case via video recording from home, on their own time. While this may sound far-fetched, John describes a series of strategies which could be used to make this a success.

With virtual trials becoming a new possibility, many plaintiff’s lawyers are wondering if a jury can award a big damage verdict without attending the trial in person. With an absence of body language or eye contact, will damages decrease? John doesn’t think so. He cites multiple studies he has conducted in the past where he’s been able to predict huge verdicts within 10% of the actual verdict. He believes if you show jurors real evidence such as day in the life videos, jurors take that seriously and award damages accordingly. He compares this to watching a movie and crying, to which Michael adds, “You just have to change the presentation.” Michael and John both agree that lawyers may have to go to trial this year whether they want to or not, and they reflect on the best strategies lawyers who face this should take.

Another concern commonly noted by plaintiff’s lawyers faced with the possibility of a trial in the era of COVID-19 is if jurors are forced to attend court in person, do they blame the plaintiff because they filed the lawsuit? While some early research indicated they may, John has not found this to be true. His research showed jurors blame the plaintiff and the defense in equal numbers, but the most common answer was, “I don’t blame anyone. I understand this has to happen.” John summarizes the COVID-19 effect on jurors by stating, “While there are some effects on who will show up for jury duty, what we don’t see is a blame for the plaintiff’s attorney.”

This podcast also covers the role of traditional focus groups, using instincts in trial, jury consultant costs, the Fusion Effect, jury attitudes towards medical malpractice cases, how to test if online jurors are paying attention and if their responses should be accepted, what the defense already does with big data, and so much more.

If you’d like to work with John Campbell on a case or would like to learn more about Empirical Jury, you can visit their website at www.empiricaljury.com or email John directly at john@empiricaljury.com.

Click here to view the COVID-19 research PDF John mentions on the show.

 

Bio:

John Campbell, JD is a trial and appellate lawyer turned law professor turned jury researcher.

John trained as a trial lawyer under John Simon, a member of the Inner Circle of Advocates, and then went on to become a successful consumer attorney.  John’s verdicts and settlements exceed $350 million.  John has also handled appeals in the Eighth, Second, Tenth, and Fourth Circuit, as well as the United States Supreme Court and a variety of state courts.  Most recently, John served as lead counsel in a series of class actions against municipalities, including Ferguson, Missouri, who engaged in policing for profit.  The cases led to the eradication of many predatory fees targeted at minorities and the working poor.   John remains a member of Campbell Law LLC.

For eight years John served as a professor at the University of Denver Sturm College of Law.  While there, he founded the Civil Justice Research Initiative, dedicated to better understanding jury behavior through rigorous empirical research.  He continues to run CJRI at the University of Denver and teaches as an adjunct professor.

John’s academic work led to demand for him to study individual cases for plaintiff attorneys.  He ultimately founded Empirical Jury.  In only a few years, Empirical Jury has emerged as a cutting-edge firm that uses big data and scientific approaches to equip attorneys to obtain the best result possible for clients.  Empirical Jury has been involved in verdicts in excess of $550 million and is routinely called on to analyze some of the most complex consequential cases in the country.

During the Covid-19 era, Empirical Jury is also leading the way on understanding the Covid Effect through careful data gathering and analysis.  To date, Empirical Jury has surveyed over 1,200 jurors on topics relating to Covid-19, virtual trials, and jury duty.

 

50 – Sari de la Motte – Voir Dire & Opening: Forming The Best Jury Possible

In this Trial Lawyer Nation podcast, Michael Cowen invites Sari de la Motte back to the show. Sari was one of our top episodes in 2019, so to celebrate 50 episodes and over 100,000 downloads we invited her to be our first returning guest. This show will cover voir dire, opening, the concept of group communication, and how all of these concepts help you form the best jury for your case.

To start things off, Sari shares that her book “From Hostage to Hero: Captivate the Jury by Setting Them Free” is now available for purchase. She reveals how her desire to help trial lawyers understand why jurors “don’t want to be there” (summoned for jury duty), how to deal with this, and then lead them from their “hostageness – their inability to say no to this process” to choosing to be a part of the jury, was how the idea for the book began. Michael adds how initially this reminded him of Carl Bettinger’s book “Twelve Heroes, One Voice” in that both Carl and Sari believe it is important to help your jury become the hero in the case. But after working with Sari, Michael sees how she focuses more on the hostage aspect, shows you how to release the jury panel from this, works to help you understand how important nonverbal communication can be, and gives practical tips to use in the courtroom.

Jumping right in Michael introduces the highly debated topic of “inclusive voir dire” versus “exclusionary voir dire.” He reveals how in the past he has used exclusionary voir dire to find his bad jurors, but understanding Sari’s thoughts on the “hostage mentality” has made him rethink his voir dire technique. Putting it bluntly Sari gives the example of “when you come in with the mindset of ‘who here is out to kill me and how do I kill them first’ that is like a poison and a disease” which then spreads and has your potential jurors wanting to find a way to get out of being selected for your jury.  A different mindset where you find the people who want to help you can change this and Sari’s analogy involving hiring a new paralegal and sorting through resumes helps put everything into perspective.

Michael pivots the conversation into how important mindset is for trial lawyers. Sari truly believes “how you’re thinking, affects how you act, which affects your results” and explains how the CTFAR model can help. Michael gives the example of his mindset before his upcoming jury trial and how he is reminding himself “jurors are good people and want to do the right thing and help my client.” This example leads to Sari sharing just how useful the mindset of “the jurors love me” was for a client of hers and how the success of this led to a $10 million dollar jury verdict. And if you are thinking “this is bullshit” Sari explains the communication science behind it and why it works.

Moving from mindset back to voir dire, Sari and Michael discuss how frustrated potential jurors are in the jury selection process. When jurors are not sure why they are there and what is happening it’s critical to get to the point and say what they are in court to do. The next step is to then think about voir dire as a group process and not an individual process, because you are there to create a group and you want a group to reach a verdict in your case not 12 individuals. Michael adds how equally important it is to think about the information you share with the group, the order in which you share it, and how you shape the conversation. The order in which you share your information is crucial and your timing is too, which leads to Sari explaining how jurors will immediately think whatever principle or fact (good or bad) you bring up first is the most important part of your case.

Michael wraps up this episode with a discussion on managing energy. He shares his experiences as a trial lawyer by describing his energy level as a young attorney as being extremely high energy at all times, but then when he tried to slow down he came across as “low energy and passionless,” and now he has learned about “managing energy” to keep the jury engaged and never bored. “Ringing the bell” is an engaging way for attorneys to keep the jury on the edge of their seat and is described as a tool for great storytelling in your opening. However, these techniques are not natural and as Michael points out you have to practice before you do this in front of the jury successfully. Practice should not be confused with scripting an opening, so Sari reminds listeners this is for “the ease and the delivery of information not rehearsing it word for word.”

The podcast is filled with additional great advice ranging from the importance of videotaping yourself, why it is imperative to rehearse saying the dollar amount you want a jury to award, thinking about the principles in your case, how journaling can help you in your mindset, using devils advocate questions, thinking about voir dire and how it connects jurors to you in your opening, and so much more. It’s truly a show any attorney will want to listen to more than once.

 

BACKGROUND ON SARI DE LA MOTTE

Sari de la Motte is a nationally recognized coach, speaker, and trial consultant. She has trained extensively with an internationally recognized authority in nonverbal communication and is an expert in nonverbal intelligence.

Sari specializes in helping trial attorneys communicate with jurors.

Sari speaks to audiences of a few dozen people to audiences of over a thousand. A sought-after keynote speaker, Sari is often asked to headline conferences across the United States.

Sari consults with trial attorneys all over the country, assisting with trial strategy, voir dire and opening statement. She conducts mock trials in her studio in Portland, Oregon and assists with jury selection on-site.

Sari has spoken for, and works with, several members of the Inner Circle of Advocates, an invitation-only group consisting of the top 100 trial attorneys in the United States. She’s has been a featured columnist for Oregon Trial Lawyer’s Magazine, Sidebar, and has also written for Washington State Association of Justice, Oregon Criminal Defense Attorney, and other legal publications. She provides CLEs for various state association of justices around the country.  Because of her unique ability to help attorneys communicate their real selves, she has been dubbed “The Attorney Whisperer.”

Sari is regularly interviewed on TV, radio, and in print, and has appeared in the Atlantic, Huffington Post, The Oregonian, Willamette Week and other publications. Her book, From Hostage to Hero: Captivate the Jury by Setting Them Free was released by Trial Guides in November, 2019.

For more information on Sari de la Motte you can visit http://www.saridlm.com/