OTLA Trial Lawyer Fall 2020

13 Trial Lawyer • Fall 2020 See The Hobby Question p 14 desk when your paralegal pops his or her head in and asks, “Are you free Wednes- day 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. Nothing activates the fear response like being put on the spot and asked to speak when you aren’t sure of the context. This is why you must provide context to jurors before asking questions. You can do this through context statements. Context statements are simple and neu- tral. They do not give any information about the case that wouldn’t be allowed, nor are they argumentative. For example, if you are trying a car crash case, one context statement might be, “This case involves a car crash.” An- other might be, “In this case, the driver of the car was injured.” You then ask questions related to the context state- ment such as, “Has anyone here been injured in a car crash?” Simple. But don’t let the simplicity fool you. Context state- ments create safety for jurors by giving them information everyone else in the room already has. Providing jurors with context before asking them questions preserves their status by making it easier to speak in public. The more informed the jurors, the more comfortable they feel. Provide certainty Next, provide certainty. If there’s anything that jurors can count on, it’s waiting. They wait and wait, and then wait some more. So imag- ine what it’s like, once they finally get into the courtroom and into the jury box to hear the question, “So, what are your hobbies?” Jurors want you to get to the point. They are desperate for some cer- tainty in this process, and you need to provide it. Almost every communication situa- tion tends to fall into one of two buckets: relationship or issue. Most attorneys strive to create a relationship in voir dire . They want jurors to like and trust them. But jurors have no desire to have a rela- tionship with you. Attempting to create a relationship with jurors at the begin- ning of voir dire doesn’t work because jurors begin the process in issue mode. If we truly want a relationship with ju- rors, we have to start with issue-oriented communication. Years ago, I reached out to a new contact and expected the interaction to be a social call. But when I arrived, she was ALL business. I was there for rela- tionship, but she wasn’t having it. I could have insisted on small talk and tried to steer the conversation back to our shared connection, but instead I picked up on her cues and communicated about the issue. Once we were done discussing the issue, however, she leaned back and asked me a personal question. That was my cue that she was now ready to be social. Ac- knowledging her preference for discuss- ing the issue eventually gave me permis- sion: she was now open to relationship. Permission can be defined as how receptive people are to you and your message. Meeting people where they are is the number one way to increase per- mission. Gaining a juror’s permission is the true goal of voir dire , not trust. There simply isn’t enough time to gain a juror’s trust in voir dire , and attempting to do so can backfire. But we can get a juror’s permission if we provide certainty and get to the point. Jurors are expecting lame jokes, being talked down to (does anyone really need an explanation of what bias is?) and at- tempts to get them to like you. When you get to the point, not only does per- mission go up, but so does your credibil- ity. You’re not who they were expecting. By getting directly to the point you communicate that you take this process seriously. By doing so, you teach the jurors to take the process seriously, too. Protect autonomy When you begin voir dire , start by acknowledging resistance. People who