OTLA Trial Lawyer Fall 2020

15 Trial Lawyer • Fall 2020 Prove fairness Finally, tap into the reward center of a juror’s brain by proving that the process is fair. Jurors perceive jury selection as unfair because they’re forced to be there. But they also believe the process itself is un- fair. Most jurors think the court system is broken, that lawyers are liars and that plaintiffs are just trying to get rich. The average juror thinks the entire legal sys- tem is rigged. Believing the system is rigged makes jurors resist engaging in the process at all. If the process is unfair, what’s the point? Your job is to prove, regardless of the reputation of the court system, you are playing fair. But to do this you have to let go of winning. We all want to win. As humans we’re wired to avoid pain at all costs. So, of course, we don’t want to lose. And that’s perfectly acceptable. You should want to win. You should want to win very much. But what you can’t do is be attached to winning. Now what do I mean by attached? Think about this in terms of cross examination. We get attached. We really want to show the jury what a liar the defense doctor is. So we make it per- sonal. We get snarky. We get rude. We say sarcastic things. All of which do nothing for our case. We’re too attached. We think this is personal when it’s not. So how do you know if you’re at- tached to the outcome? Anger is a really great indicator. The more attached we are to something, the more angry we get when things don’t go our way. Anger is dangerous for trial attorneys. Anger communicated at trial is almost always the wrong decision, especially for plaintiff attorneys. When you’re angry at trial you communicate to the jury that this is personal. You’re asking the jury to award YOU a verdict, not your client. There is no jury on the planet that is willing to award YOU, personally, a verdict. But the biggest problem with a focus on winning is that you will communicate it. Jurors will pick up on your attachment to winning and they already think you’re willing to do anything to win. You will lie, cheat and steal to win. Don’t allow this to happen. Let go of winning, focus on the job at hand, and let the outcome take care of itself. Drop the gimmicks Jurors hate the hobby question be- cause it’s a gimmick. Years ago, I observed a jury selection where a juror indicated on her question- naire she found criminal defense attor- neys “untrustworthy.”The attorney made a big production of walking over to his client, dramatically putting his hands on his shoulders and asking, “Will your view of criminal defense attorneys affect your ability to judge my client fairly?” He had barely finished his question when she shot out, “THAT! That right there is what I’m talking about! You’re trying to manipulate me!!!” Drop the gimmicks. Jurors are won- dering if they can trust and believe in you. When you use gimmickry of any kind they shut off and pat themselves on the back for being right about you. Jurors are looking for a real person. Someone who respects their time and has respect for the process itself. This is why you won’t see Rick Friedman, for ex- ample, yacking it up with defense coun- sel or joking around with the judge. He knows jurors are watching his every move. He shows them he believes in this process and in his client by doing his job thoughtfully, seriously and without gim- micks. He communicates to jurors what is about to happen is important. That they are important. And by doing so he puts jurors at ease so he can talk to them thoughtfully about the case. So is there ever a time to ask the hobby question? Sure. When you’re at a barbeque or an office party or stuck talking with your brother-in-law. In court, however, be authentic and do everything possible to reverse the threat that jury selection cre- ates for jurors. An expert in nonverbal intelligence, Sari de la Motte is known as “The Attorney Whisperer.” She works with attorneys on trial communication, witness preparation, and jury selection. Her office is at 2451 SW Anemone Ave., Lincoln City, OR 97367. She can be reached at 503-880-2958 or [email protected]. De la Motte discusses jury selection techniques with OTLA member Tom D’Amore. She encourages her attorney clients to practice the “Five P’s” for building rapport with prospective jurors.