OTLA Trial Lawyer Fall 2020

14 Trial Lawyer • Fall 2020 The Hobby Question Continued from p 13 can communicate what others are think- ing are perceived as more intelligent and credible. Simply start with, “Thank you for being here. I know you didn’t have much of a choice.” But don’t stop there. Continue by pointing out they did exer- cise some autonomy by showing up, “Even though obeying a jury summons is required, many people chose to ignore that summons and not show up today. I appreciate all of you for making the choice to come here today and participate in jury selection.” These few sentences do two powerful things: 1) they communicate to jurors you understand they are, for the most part, there against their will, but 2) they could have chosen not to come at all and, therefore, are still autonomous beings who can make their own choices. So often attorneys attempt to do the first — acknowledge resistance — with- out doing the second — pointing out that jurors did in fact decide to come. If we acknowledge that jurors are there against their will and leave it at that, we haven’t done anything to protect the juror’s autonomy. It’s important to ac- knowledge not only a juror’s resistance, but also each one’s autonomy. Outside of acknowledging resistance and pointing out that jurors did, in fact, choose to show up, there isn’t a lot we can do to reverse the threat that jury selection inflicts on jurors in regards to autonomy. But avoid making a big deal about how powerful jurors are in an at- tempt to compensate for the absence of autonomy until later in trial. Yes, jurors are the most powerful people in the room, but pointing this out too early in the process can feel manipulative. It’s best to wait until the group is formed before reminding the jurors of their immense power. Promote relatedness The number one thing you can do in voir dire to tap into the reward center of a juror’s brain is to form the group. Why? 1. Forming the group creates safety. When jurors feel related to each other, they feel safe, and jurors must feel safe to be able to learn about and decide the case. 2. Forming the group reduces the need for autonomy. When people feel they belong and are doing important work they are more willing to give up their autonomy. 3. Forming the group allows you to lead. If there’s no group, there’s no need for a leader. People lead themselves — that’s the basic definition of autono- my. But once a group is formed, it needs a leader. So how do you form a group? Groups are primarily formed nonver- bally. To get a group to form you must get them to: • Look at each other (eyes) • Talk to each other (voice) • Do things together (body) • Breathe together (breathing) Think of the last cocktail party you attended. If there were people there you didn’t know, you probably avoided eye contact. At some point, hopefully, the host introduced you to the other party goers. That introduction gave you per- mission to look at each other, reducing the awkwardness and likely led to a more engaging party. Although we aren’t passing drinks around (that would make voir dire a whole lot easier!) we can still get jurors to look at each other. Here’s how. Once a juror finishes speaking, hold your hand out to him or her and then gesture and look at another juror. Ask, “Is what you’re saying any different than [Name of Sec- ond Juror]?” You must look at the second juror, not the first. We are trained to maintain eye contact, but merely gestur- ing to another person while holding eye contact with the first won’t make them look because people follow our eyes not our hands. (Although the gesture will help.) You have now given these two jurors permission to look and talk to each other. The awkwardness is removed. They can look and talk to each other as much as they want and most likely will continue to do so during voir dire and otherwise. Continue to do this with as many jurors as possible and your group will start to form. You can also form your group by get- ting jurors to do things together. Simple things like having everyone raise their hands at the same time help the group to form. When people do things to- gether, they feel like a group. Why do we sing the national anthem before sporting events? To form the group. Finally, you help form the group by getting them to breathe. Jurors are in fight or flight because jury selection in- vokes a threat response. But how on earth can you affect the breathing of the group? Breathe well yourself. Research shows listeners adopt the breathing pattern of the speaker. If you aren’t breathing well due to nervousness or anxiety, your jurors won’t breathe. The jury will respond to how you breathe, so make sure you’re breathing slow and low when you start voir dire . Years ago, an attorney from Oklaho- ma flew out to work with me on voir dire . I taught him these same skills so he could form the group. He was skeptical. “Are you sure this will get the group to form?” he asked. “Yes,” I responded. “Groups don’t form by just being together. You’ve got to nonverbally help them.” The next morning, a mock jury ar- rived. Within 20 minutes, the group, which had sat quietly and stiffly just moments before, was now lively chatting with the attorney and each other. At times the attorney couldn’t get a word in edgewise. Once the jury was dismissed, the attorney said to me, “You rigged this!” He was amazed at how quickly he was able to form the group through these simple nonverbal techniques.