OTLA Trial Lawyer Fall 2020

12 Trial Lawyer • Fall 2020 Sari de la Motte By Sari de la Motte V  oir dire . Two words that strike fear into the hearts of many trial attor- neys. Voir dire is supposed to be a con- versation where you get to know the people who will decide your case, but it often ends up being an awkward, stilted, cross-exam where it feels like pulling teeth to get jurors to talk. Enter the “hobby” question. Slide into any seat at your local courthouse and you’ll probably hear an attorney asking jurors, “So what are your hobbies?” (Similar questions include: “How do you spend your free time?” “What do you do for fun?” and, “What books have you read lately?”) You’d think you were wit- nessing a first date, not jury selection. Attorneys have been trained to ask these types of questions to combat the awkwardness voir dire inevitably creates. Most attorneys don’t feel right about just jumping in and asking jurors how they feel about trial issues, so they attempt to “create rapport” first. Here’s the problem: You can’t create rapport this way. David Rock, author of “Your Brain at Work” has identified five social needs that when threatened, can activate the sur- vival 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 something or some- one is unfair are all perceived as threats by the brain. Jury selection threatens jurors in each and every one of these areas. What’s your hobby? Several social interactions could threaten maybe one or two of these areas. A toast at a wedding, the inability to understand a medical bill, a family obli- gation you resent or being passed over for a promotion are all things that could activate the survival response. But what situation puts all five areas directly under attack? Jury selection. Knowing this, what could possibly make the situation worse? Asking jurors what they do for a hobby. The hobby question isn’t fooling anyone. Jurors don’t trust you, especially at the beginning of voir dire . They are on high alert for manipulation of any kind. When you ask jurors about their hobbies most jurors think, “You don’t really want to know what I do for fun! You’re just trying to butter me up so you can find out if I’ll vote your way.” And, well, aren’t you? There’s a better way: Tap into the reward center of the juror’s brain and reverse the threat that jury selection cre- ates. To do so, practice what I call the “Five P’s” for building rapport. Preserve, pro- vide, protect, promote and prove. Preserve status To tap into the reward center of a juror’s brain, we need to preserve a juror’s status. This means making it as easy as possible to speak in front of the group. But how? Start by addressing the power imbal- ance. Jurors are the most powerful people in the courtroom. They decide the case. But they don’t feel powerful, especially at first. They don’t have enough informa- tion. Jurors know next to nothing about your case. And yet we expect them to share their experiences, insights and personal opinions when they aren’t sure why we’re asking in the first place. Have you ever been working at your Why Jurors Hate the Hobby Question