From Hostage to Hero Reviewed by Jason Skuda
Originally published in the July/August 2020 issue of Trial News, the monthly publication from the Washington State Association for Justice.
“Jurors are, for all intents and purposes, hostages.” This concept begins Sari de la Motte’s advice on approaching jury trials. As hostages, jurors are the trial’s first of two “victims.” They arrive unhappy, discombobulated, and, more often than not, scared. The plaintiff’s lawyer must free the jurors by creating a safe space for jurors to express themselves in voir dire and to act on the plaintiff’s behalf when they deliberate.
To do this, Mr. or Ms. Lawyer, you must first free the trial’s second victim. That would be you. Freeing yourself begins by examining your negative biases toward jurors, trials, and your own competency. De la Motte invites lawyers to look at their own “limiting beliefs.” These include the notion that prospective jurors are enemies, the worst of whom must be exposed and eliminated as soon as possible. De la Motte cautions this approach is a self-fulfilling prophecy. “The rule of expectations says people behave the way we expect them to.” Other common limiting beliefs include the idea there is a “right way” to try a case and that the outcome of any one case is the sum of a trial lawyer’s worth.
De la Motte recommends replacing limiting beliefs with “empowering beliefs,” such as “I just have to trust myself,” and considering the whole trial experience as the reward, not just the verdict. Rather than dwelling on inadequacies, she encourages proactive work to improve competencies. For example, if you fear public speaking, quit fretting and find opportunities to practice it outside of trial.
After addressing self-defeating biases, lawyers must examine how they convey information to the jury. This point draws from de la Motte’s expertise in nonverbal communication and nonverbal intelligence; she is not a lawyer. De la Motte distinguishes between understanding non-verbal communication and being a “body language expert.” She dismisses as pseudoscience the notion that body language can be “read” accurately to identify deception or particular thoughts. Instead, her nonverbal communication work focuses on improving how information gets to jurors or other audiences and identifying the audience’s receptivity to the information. (Beware: receptivity to information does not equal agreement to it.)
Effectively communicating verbal and nonverbal information largely determines whether the lawyer creates a “safe space” for addressing difficult issues and presenting the client’s case. De la Motte draws from basic mindfulness meditation in recommending that trial lawyers adopt a breathing exercise program designed to activate the parasympathetic nervous system. Jurors can tell how a lawyer is breathing (shallow and scared or deep and calm) and are likely to mirror that breathing, deriving credibility information from it. She follows this nonverbal tell with others, identifying problematic body language and providing examples of open, trustworthy body language, complete with photographs. The body language recommendations are linked to core trial phases and issues, including group-formation during voir dire, presenting demonstrative evidence, and closing arguments.
In addition to psychological, leadership, and her own authority, de la Motte incorporates core concepts from the canon of trial authorities. She specifically discusses Rick Friedman’s work (Rules of the Road and Polarizing the Case) and provides her own “rule” recommendations for jury selection and an “issue-oriented” voir dire. The book is partially reminiscent of an earlier Trial Guides publication, Carl Bettinger’s Twelve Heroes, One Voice. Both authors advise that jurors should be allies, not enemies, and that it is the lawyer’s job to supply jurors with the confidence and tools to act on the plaintiff’s behalf.
From Hostage to Hero also validates core Trial Lawyers College (TLC) methods, including scene setting, the use of various voices (e.g., describing events from the first-person perspective of the plaintiff or other witnesses), and slowing down. The group-formation discussions reflect “tribe” building TLC alumni will also recognize. De la Motte builds on this concept by adding helpful tips for reading “group culture.”
Some of de la Motte’s recommendations challenge popular trial trends. For example, she advises against bring up money first, or even early, in voir dire. This and “lawyer-hate” questions should follow building rapport with the venire. Springing such questions on prospective jurors too soon, de la Motte posits, conflicts with the human desire to remain consistent in public positions. If a juror identifies as staunchly against large verdicts at the start of voir dire, the juror might stay with that position, even after hearing an otherwise compelling argument that this plaintiff’s harm is in the millions. Along the same line, de la Motte also cautions against a passionate tone in opening, which could “get ahead of the jurors emotionally.”
De la Motte’s “safe eye contact” discussion is particularly helpful because eye contact is inherently awkward. She makes the point that direct eye contact is unnerving for most people and undermines sharing. To back it up, de la Motte provides a test. Stare at someone in the eyes, then have a third person ask a math problem. Few can solve such a problem without breaking eye contact. She then provides a handy “rule of thumb” that rings true. Engage a person (juror) with eye contact. If you detect the person is struggling to formulate a thought, keep the same physical posture and, without lowering your head, look down. It is simple and works. Everyone has seen skillful communicators do it, likely without noticing what made the awkward moment safe. De la Motte provides numerous tips like this, in a well-structured format worth the read.
From Hostage to Hero by Sari de la Motte