Episode 2: Inside Jury Selection & Voir Dire with Harry Plotkin
The following is a transcript of Episode 2 of Championing Justice. You can listen to the full episode here, or watch it on YouTube.
Darl: You’re listening to Championing Justice, this is Darl Champion. I’m honored to have our guest today, who is Harry Plotkin. Harry is a nationally recognized jury trial consultant, who has obtained a number of very large verdicts as a jury trial consultant. And I can never memorize this because his success is so incredible.
I pulled this from his LinkedIn profile: 60+ eight-figure verdicts since 2013 and four verdicts over 100 million since 2021. That’s pretty impressive, Harry.
Harry: Thank you. Well, I picked the jury. I wasn’t there trying the case. So a lot of great lawyers, obviously, but definitely an honor and something I’m super proud of to be part of so many great verdicts.
Darl: I was at when Lanier Trial Academy in Houston last week, learned a lot of great things from Mark Lanier, he’s one of the most accomplished trial lawyers in the history of our country. And, you know, it’s interesting to hear his perspective on jury selection, which I imagine may be very similar to yours. So before we talk about voir dire and all the, you know, the different ins and outs and the rules that you have and how you go about doing it, tell us a little bit about the type of work that you do and the services that you provide to lawyers.
Harry: Sure, I mean, you know, the most important thing I think I do is be there for jury selection, assessing the jurors, you know. And before I’ve done that, I’ve written the jury selection, the voir dire questions, that I really want them to ask because, you know.
I was telling someone the other day, you know, my greatest skill I think is in assessing jurors and getting you a great jury. And so, for me, I need, you know, my voir dire list is like, they’re not recommendations. This is like, you know, kind of like a recipe list. Like if you want me to make you a, you know, lasagna, you got to get me these things. And this is the information that I really need to know because, you know, probably what I find important and I want to know about jurors, maybe different than other lawyers or different jury consultants.
But that’s the primary thing. I mean, I do tons and tons of focus groups. I give a lot of advice on themes and framing, opening statements, how to deal with good and bad facts, anything to do with helping persuade your jury. But getting you a great jury is the most, for me, the most important thing.
Darl: And that was gonna be one of the first questions I had, is tell us why you think jury selection is so important.
Harry: You know, the most important reason is that, and I found this over the years, so many cases, is that there’s a lot of things that matter in trial to me. And I found over the years that there’s a very specific hierarchy. And for me, number one is the jury.
And number two is actually the lawyer, or the quality of the lawyer and how the lawyer does.
Number three are the facts of the case, which is the thing that always surprises people.
And number four is how likeable your plaintiff is.
All those are really important. And I’m not going to say they’re not important, but that really is the hierarchy. And so I found you can have all those other things and if you have a lousy jury,
I mean, you have the best case with the best lawyer and the most lovable plaintiff. And if you have a bad jury, you’re going to get a terrible verdict.
I mean, that’s all that, you know, and it’s so funny to me that, you know, sometimes I hear old school lawyers or even a lot of judges these days say, you know, “Why spend all this time on jury selection?” and “Just take the first 12,” and, you know, ”All jurors are the same.”
And we just did a focus group recently, or a friend of mine did and he showed me the whiteboard of all the verdicts that came in and they’re all over the place. So, if jury selection isn’t important and all jurors are gonna come to the same conclusion, why on this board are you seeing one juror wanted to give 30 million and one wanted to give 200,000? And it was all this huge spread of people.
So it really is the most important by far thing because if you’re not preaching to the choir, there’s really nothing you can do, all your skills, great facts that are gonna make a difference. But if you have a great jury, I mean, I’ve seen cases that are not the greatest case in the world, you know, get great results if you have a really great jury.
So, you know, that is the most important thing, but everything matters.
You can’t just get a great jury and bomb your opening statement or have a client who’s caught lying, I mean, but jury is the most important.
Darl: Sure. So in terms of jury selection and your approach to it, I hear a lot of different philosophies about it from lawyers. So there’s some lawyers who say you’re just there to try and connect with the jury. That’s your main goal.
I’ve heard other people say you’re really trying your case in jury selection by asking these loaded questions that sort of like embed all these self-serving facts for your case.
Other people say, you know what, you’re job, obviously you need to connect with the jury and that’s a huge component of it. That’s probably universally agreed on, but you’re really just trying to identify your bad jurors to ensure that you either get a strike for cause or you use one of your peremptory challenges on them.
When you are advising lawyers about jury selection, what are you telling them the ultimate goal is in terms of what they should be trying to do?
Harry: Sure, you know, all those things are really important. And those are all things that I strive for, which is why jury selection really is the hardest part of trial, you know, not only because it’s, you know, so unpredictable and, you know what your witnesses are going to say in direct and cross, for the most part. And you have total control over your opening and closing.
But yeah, there’s a lot of things you have to be doing in jury selection. You can’t come across poorly and you need to build the connections with everybody. There are certain things that I do that, I don’t know if I call them preconditioning, but they maybe sort of are. I mean, you’re getting jurors thinking and framing, I guess. I call it framing. You’re not really changing their minds in jury selection, but you’re framing the case subtly for them.
But the most important thing is winding up with a good jury. And that means, you know, not only identifying and getting rid of your bad jurors, which everybody knows, but probably the one thing that I do differently, and my approach has been different, and I wasn’t like this 10 years ago, or and I was starting to kind of do this even five years ago, but especially since COVID, the one probably biggest change in how I approach it is, I’m not viewing it as just pure deslection of jurors. I’m proactively helping lawyers find ways to keep your good jurors on the jury. And we can talk about that a little later, but certainly you got to get bad jurors off.
But to me, I think it’s just as helpful that if you can empower your jurors and find ways to keep your good jurors on there, because there’s so many more good jurors these days in the last couple of years than there ever were, that if you can do that and take cause strikes away from the defense and even find ways to, you know, convince the jurors defense to keep some of these jurors, that’s just as helpful as getting rid of a couple of bad ones.
Darl: So that’s a great topic, is, not only deselecting your bad jurors, but selecting your good ones.
A lot of lawyers are at a loss on how to do that because I can certainly speak from experience. I’ve had trials and even if the end result is a really great result, objectively, when I start talking to the jurors I had one recently we talked to the four person and I was surprised at the jurors that wanted to give us the most money we’re not the people I thought that we’re going to be on our side.
It was a conservative venue, they were from that conservative venue, they kind of fit the demographic of who you would stereotype as being conservative. And I know you’re against stereotypes, but that was kind of one of those snap judgments you make, that’s what you’re thinking: “Is this person be a bad juror?”
Whereas somebody I thought that was going to be a great juror, they were from a big city, they had not lived in the county that long, they themselves had had a personal injury case and had filed a lawsuit or gotten a settlement…they wanted to give us almost nothing.
So what are some ways that we can try to identify who is going to be a good juror for our case?
Harry: So I always like to ask open-ended questions that have nothing to do with “Can you be fair?”, nothing to do with “No right or wrong answers.” Just really getting at the key, for me, and this is the hardest part of writing good voir dire questions, but what is the real key attitude in the case that really tells me how they really are going to feel? And are they going to be really angry at what the defendant did? Or are they not going to be angry at all? Or are they going to blame the plaintiff?
And so I’ll give you a couple of examples. Like so, you know, in one of the really big employment verdicts I got I asked the jurors, I had my friend who’s trying the case asked each and every one of the jurors, you know, “What are your feelings on whether employers should have to enforce and monitor the workplace?” And really the way he asked it, that way I had him ask it, was really to say, let’s say a company has great policies, strict zero tolerance policies, on harassment in the workplace. They have these policies. They train everyone to follow them. It’s in the handbook. Has that company done enough? Or should they have to actually monitor the workplace and enforce the policies? And there’s really no, “What are your feelings about that?”
And forcing them to kind of give you answers really told me everything that I needed to know about this jury and who was gonna be good for us and who’s gonna be bad for us and who’s gonna be really pissed off. And you’ll find that your good jurors will give you great answers: “Oh, absolutely.” But really making sure that you get a couple of topics that really get at the heart of their feelings about some of the issues in the case.
And also those questions, I really like them, because they also sort of start to frame the case about what you’re gonna make the case about, too. For me, that’s the best way. The thing I want to know the most really about jurors is like, who’s going to get really get pissed off? Because not only are jurors are going to get pissed off, even if you have inflammatory, great facts and a defendant doing something awful. There are some jurors who are going to make excuses for them, and there are some jurors who may technically find them at fault, but they’re not going to give you big damages if they don’t get pissed off.
Darl: So, do you have any recommendations for an admitted liability case? Let’s say that the defendant has admitted fault and their whole defense is gonna be, “We accept full responsibility.” They’re just either raising a causation defense or there’s some dispute about pain and suffering damages. How does that strategy for jury selection shift then when you’re not really capable of having those facts and seeing how it’s going to motivate the jury.
Harry: Right, that’s a great question. And I do those all the time. And they’re definitely more challenging for a couple of reasons. I mean, one is usually in those cases if they’re a car crash case, it’s a individual as opposed to a corporation, which is a lot harder for jurors to really get super mad and wanna hold them fully accountable and stuff.
But, so one thing that I always do, and even if it’s an admitted liability, you know, car crash, case, for example, I always like to ask them questions about liability issues because I still want to know. I’ve still found that the best jurors are ones who really do get angry at careless drivers.
And, you know, and the people who really think “Not a big deal,” they don’t get upset about speeding or distracted driving or whatever it is, even if they’re not necessarily going to hear the reason why, you know, those jurors just don’t tend to get upset. And so I always like to ask them questions about that, just to get a pulse of, you know, are these jurors going to be angry? And they’re going to be willing to, you know, feel like this defendant needs a big verdict to hold them accountable?
Darl: One question I have for you, and this is a very, very specific question. And I’ve heard both sides to this and there’s different theories on it. Maybe there is no hard and fast rule, but if you have somebody who has been injured that’s on your panel, the fear of plaintiff’s lawyers is they’re going to get back there and be like, “Well, I didn’t get this much money when I got hurt,” whether it was a personal injury case or whatever.
On the other hand, there’s a thought that, well, maybe they’re more likely to have been through the process, know that there’s insurance, especially if you’re dealing with an individual that maybe they did get screwed and they’re just ready to stick it to somebody.
Do you have any hard and fast, either one, is there a hard and fast rule we should apply to that? Just as kind of like, “Hey, let’s just keep it simple and do this one rule.” If it’s not that, how should we go about determining if that particular type of person is going to be good or bad?
Harry: So the first thing I would say is talk to them about, “How do you feel about this idea of money for someone’s loss of quality of life? I mean, you’ve been through it before and you know. How did that change your view about how much a person deserves?”
So I would still try to assess them the same as everybody else, but I will say this. I mean, there is a sort of a little bit of a general rule that I have. And my concern with people like that is that not so much that they’re gonna get back there and say, “Well, I didn’t get so much so they don’t deserve so much.” I’m sure that happens a little bit.
My big concern is that even if they’re super nice people and they feel like they’re sympathetic and they say, “No, I would never do that,” I always teach this: The people who are going to give the most damages are the jurors who can’t imagine what your plaintiff went through.
So it’s somebody who’s probably never had an injury, or they’ve never known a loved one who was physically or sexually abused, or never lost a job, never been discriminated against. Those are the people, if they’re good people and they have a conscience, they’re going to take a look at this and say, “Oh my God, I can’t even begin to imagine what it’s like. Yeah, tens of millions of dollars, or millions of dollars,” or whatever it is.
People who’ve been through it, even if they are sweet, sympathetic people, even if they have no issue with lawsuits and everything like that, there’s something in them that says, “I’ve been through it. It’s not the worst thing in the world.” They may not think this consciously, but there’s a part of them that’s, like, “I’ve been through it, it’s not millions of dollars.” You know, “I’m just, you know, I’m getting by.”
Darl: That’s interesting. You know, I’ve never thought of it that way.
I’ll give you one example: I had in a recent trial, my client had tinnitus. And so that’s very tough to get people to imagine what it’s like to have constant ringing in the ears, and there was a guy on our panel who said he has it. And I was hoping he was going to talk in voir dire about how terrible it was. And he said, “No, it helps me sleep at night. It doesn’t bother me at all.”
Do you, while we’re on this topic of hard and fast rules, and I know you said you don’t have any or many, do you have any hard and fast rules where you’re like, “You need to do this, or you need to ask this one question, or never let this particular person on the jury?”
Harry: No, I mean, I wouldn’t call it even hard and fast. My goal every time I’m picking a jury is to not have to really do any guesswork. And that sounds weird because everything I do is sort of an educated guess, obviously.
But for me, it’s like guessing. I get some insight and the right questions are asked to that person. But there are times where you, you know, know when you are in federal court, you get no voir dire or times when, you know, I don’t know, some of the counties that you practice in, there maybe some counties or judges that give you very very short amount of time. So there may be times when we only get you know 20 minutes for voir dire.
You know my wife just picked a jury the other day where they got 40 minutes for 45 people and the judge wouldn’t even ask them what their job is. An employment case, too. Wouldn’t even. Refused to ask the jurors what their jobs were. And said, “If you want to do it, you can do it.” But that would have probably taken up 20 minutes of their time.
So there’s times when you have not a ton of information. And those are the only times that I really will kind of make some real educated guesses and can fall back on some things that I’ve seen. But I like to not do that.
And so I’m always telling, and this is probably a good lesson for lawyers is, you know, sometimes we’ll get back there and they’ll say, you know, halfway through the voir dire all the way, and they’ll say, “I just don’t like, you know, this one juror, I’m worried that he’s gonna…”
And I was like, “What, he didn’t say anything bad.”
“Well, you know, I worried that he’s gonna feel this and this and this.”
And I go, “Well, then ask him.” I mean, why don’t you? I can’t read minds and my value isn’t sitting there. I’m not telling you without any information, without the juror saying anything, what they’re like, what they’re going to feel. Ask them that.
So don’t, you should approach voir dire from the front and saying, “I’m going to try to do as little guesswork as I can and not make assumptions about these people and ask them.”
Can you be surprised sometimes? There have been many, many times when I’ve kind of pushed the lawyer to ask someone a question and they turn out to be the polar opposite of what their jobs suggest. I mean, I’ve had defense lawyers on panels that were great. I’ve had insurance adjusters who were amazing. I’ve had, you know, all kinds of things where you go, “See that guy?” We would have otherwise might have struck that guy and he was amazing.
So yeah, don’t make assumptions, but that’s if you have the luxury of a lot of voir dire, obviously.
Darl: While we’re talking about these assumptions, you do work across the entire country, right? I mean, how many states have you picked a jury?
Harry: Yeah, I mean, I think at one point it was, I think about 40 or so.
Darl: And so you’ve taught to a lot of lawyers about their approaches to jury selection. What would you say are some of the top misconceptions that you found are out there that people have about jury selection? Either how it should be conducted, the questions that should be asked, who’s an ideal juror, just whatever it is?
Harry: Sure, I mean, number one is, you know, of relying, falling back on demographics and old things that they learned. And some of those things are, you know, sometimes I’ll get asked, like, “Who do I want for this case, men or women, old or young?” And the answer is always, always, like, there’s going to be good and bad in both. And it really always, even in their jobs, boils down to how they really feel about some of the issues.
You know, probably the number two mistake that I see made is just, you know, relying on the jurors to self-diagnose their own biases. I think to some degree you need to ask questions, asking them explicitly, “Do you think you couldn’t be fair in this case?” “Is there an issue in this case?” Or whatever. But some questions, at the end of the day, you need to be doing the diagnosing of them. Just because a juror tells you they have no problem with some issue in the case doesn’t necessarily mean you can’t explore how they feel a little bit more and take them at their word.
There’s a lot of things. Language choices is a big thing. I mean, you know, I’ve seen too many lawyers say, “Does anyone here have a problem with this or problem with that?” And it’s just, you know, they never get answers. And it’s always, because it sounds like you’re, like, arguing with them, like it sounds like you’re picking a fight with them: “I haven’t got a problem with this.” Don’t ever say like, “Are you the wrong juror for this case?” It’s always like, “Is this case the wrong case for you?” You know, and so, so that’s a big issue.
Darl: I spent two years after law school clerking for a federal judge. This was 2007 to 2009. And the judge had to approve the questions then before he would let the lawyers ask them. And I saw some common questions, and you tell me kind of what you think about these, because it seems like they’ve sort of fallen out of favor.
Harry: Sure.
Darl: There’s the old bumper sticker question: “What bumper sticker do you have on your car?”
There’s the, you know, “Do you listen to Rush Limbaugh?”
And, from my point of view, I had problems with it because, as a law clerk then, just kind of thinking through all the problems they could create, was it could make it seem like there’s something wrong with that. Right?
Like, “Who here listens to Rush Limbaugh?”
“Wait a second. Like, if I listen to Rush Limbaugh…”
I think you’re creating a barrier between me and you. And that’s a problem with connection. I don’t, I could be wrong about that. But what’s your thought about those types of questions that are really getting into topics that could be some kind of indicator of a political belief?
Harry: Right. You know, there’s a lot of issues I have with it. I mean, you’re, I agree, 100%. Don’t.
I don’t want to do anything even in jury selection that is going to be kind of divisive because, you know, politics, especially these days, are very divisive and you don’t want to divide your jury and you don’t want to have some people on, you know, you don’t want jurors thinking like, “This guy,” a fellow juror, “is liberal and I’m conservative,” or whatever it is.
Those kind of things are the same with politics and bumper stickers, as they are with like doing online research about your jurors. Like it doesn’t really tell you how they feel about the case.
And I always tell lawyers when they say, “Do you do a lot of, you know, research on your jurors online?” And I would say, you know, maybe if I have a couple of minutes, but I don’t think it’s that helpful. I’d rather have one more minute of voir dire with a juror than all the time in the world to look them up online.
Darl: One of the questions that I’ve had is: Have you noticed any trends among jurors and how they perceive attorney advertising? And specifically to people that could work at a firm that is a big advertiser?
So you know to me, my perception of it is it’s gotten so commonplace now that there’s no stigma with it, but maybe like 10, 15 years ago it was like, “Yeah, this lawyer’s from that firm, they’re on, you know, these billboards, whatever.” That could be a stigma.
Have you noticed any shift in that over the years?
Harry: I haven’t. And to me, it’s like, if you have a good case, it really doesn’t matter that much to the jurors. Finding about how they feel about the issues is so much more important.
A question that gets asked a lot, this is another big mistake I’ve seen a lot of lawyers fall back on: “What are your feelings about lawsuits in general?”, “Are there too many frivolous lawsuits?”, or “Are verdicts too high?”
That doesn’t really tell you very much because, you know, really, I mean, I’ve had a million good jurors who feel all those things. And the reason is because, you know, in their minds, like a frivolous lawsuit is like, really, what you and I would probably think is a frivolous lawsuit. They’re like, “I don’t think someone should get $2 million for, you know, being drunk and tripping,” you know. If your case isn’t frivolous, they’re gonna see that.
I mean, people who think there’s too many frivolous lawsuits don’t think every lawsuit is frivolous. And, you know, when they talk about verdicts being too high, that doesn’t mean they won’t give a lot to a legitimate lawsuit. And you’re probably, you know, all you guys are probably trying pretty good cases.
And so I feel like that all goes away and is meaningless once they see a good case. So, you know, I think that gets asked way too often and jurors get kicked off for views that really aren’t gonna matter in their case.
Darl: What about the tort reform question?
So tort reform isn’t a term that’s out there in the political landscape as much as it used to be. So late 90s, early 2000s, it was, you know, it was discussed a lot. I mean, it was part of George Bush’s campaign. I think there’s even a video of him somewhere where he said, “Too many good OBGYNs can’t practice their love with women.” And it’s kind of one of his gaffes that’s a funny video, but now it’s like, when I hear that question get asked, I almost see nobody’s hand get raised.
You know, “Who here is an advocate of tort reform?” Or “Has anybody been involved in any tort reform organizations?” They’re like looking around like, what is that?
Harry: Yeah, no, I mean, I don’t like asking that question because it’s going to come out when you talk. If you’re asking good questions about damages in general, that’s going to come out.
And the other big thing that goes along with that is caps, the idea of caps. Almost every lawyer that I’ve worked with wants to ask about caps. And I tell them every single time, “Don’t ask that question.”
Even the worst jurors in the world don’t have caps. Almost 99.9 % of jurors, if you ask them that, will say, “Well, I don’t know. I’ve never thought about that before.” And to them, they’re reasonable. And they go, “No, it depends on the case.” And these are jurors that,
I mean, even, jurors that are terrible jurors on damages, they just, you know, that’s just not the right way of asking it.
And usually they ask it anyway and they don’t get a response. But they all tell me, “Oh, I’ve gotten responses before.” You may sometimes.
But let me tell you, too, I mean, keep in mind jurors have not thought about these things. We as, you know, lawyers and jury consultants spend our entire lives thinking every day about non-academic damages and these kind of things. And what it’s for and all these things.
You know, jurors come in they’ve never thought about this a minute in their life. Expecting them to have a cap or expecting them to have a thought out idea, it’s just not going to happen. You have to explain damages and you have to explain reasons for non-economic damages in the best possible way, for me, is what I’d like to do during voir dire, so that your jurors actually have something to think about and really will. And the jurors who were still bad for you, you know that they actually are, you know, are gonna be bad jurors.
I mean, I used to be an advocate of, you know, “Frame your damages in the worst possible way to get people off for cause,” you know, “Who thinks that millions of dollars for, you know, emotional distress seems ridiculous?” And of course everybody’s like, “Yeah, that sounds… emotional distress kind of seems weak.” And you don’t explain why. And that’s a big mistake I see lawyers making is underexplaining things and being too happy to get jurors off for cause, as opposed to seeing, “Does this juror really understand what I’m talking about?” “Have they really thought this out?” “Is this like a real belief that they have or just a kind of a gut reaction?”
Getting back to where we kind of started, I mean, frame these things. Make sure that you’re framing things and explaining it well in jury selection so that you know the people who say, “No,” it sounds excessive or ridiculous to give somebody money, or pointless to give someone money for their pain and suffering, you know what they mean.
Darl: When you talk about framing damages questions, and let’s talk about it from the pain and suffering perspective, and we can use a car wreck example… So somebody has to have neck surgery. What are the types of questions?
I mean, obviously, we want to find out: Has anybody here had neck surgery? Or has any family members had neck surgery? Anybody had to care for somebody?
But do you dive into the specifics of, let’s say, that this person lost something that was close to them? Maybe they liked to go fishing every day and now they can’t? Or maybe, you know, they like to go on long walks with their grandchildren and now they can’t? Do you get that granular with the questions and ask, you know, to try and let the jury know that’s what the damages are going to be in the case?
Harry: Yeah, for sure. I mean, so one thing that I will do always is when you have a case like that, I’ll have a question. And the way that I like to ask it so that it kind of hits home and their jurors are thinking about it without, you know, violating any golden rule things, is I always like to say, “Does anyone here have any hobbies or passions or things that you do that, if you were to explain it to somebody who doesn’t doesn’t know you, might seem not that important, but that’s really important to you?”
And you start getting jurors talking about it, and they start saying, and you start learning which people are really sweet. And then once you’re done doing that and you talk to a few of the folks, you don’t have to necessarily talk to everybody about it.
But and then you pivot and you say, you know, “Now you’re going to hear about some of the, some of the plaintiff’s passions and things that they can’t do.” You know, and is anybody going to be able to put a value on what that meant to him or to her, even?
And I’ll use an example, you know, and like, let’s say your client is into ballroom dancing or something. I had one, a case like that. Even if you’re the type of person who you’d probably pay money to never have to go ballroom dancing or, you know, you hate to do a marathon or whatever it is.
The jurors get it. I mean, that’s one way of framing it where they’re going, “Okay, this is something that it may seem silly to me, but that’s this person.” So that’s, I think that’s a really effective thing to do in jury selection.
But another thing that I think is really important and framing-wise is: non-economic damages are the biggest area where jurors don’t get it and haven’t thought about it. Some of them will say it’s pointless. I mean, money’s not gonna bring someone back who died in a wrongful death case. Money’s not gonna cure the pain of suffering. So why are we doing it? And that doesn’t make them a bad juror. You just have to explain it as succinctly but as persuasively as possible.
And so I always like to, I believe you should be explaining to them the reason why we’re asking for this. “If a $1,000 surgery could fix him back to what exactly what he was before, that’s all we’d be asking for.” You know, “The reason that the law asked jurors to put a value on these things are because these are things that no amount of money is going to fix.”
Darl: Yeah, can’t be fixed.
Harry: Yeah, exactly. And the point of this is not to do anything specific, it’s to put a value on the harm. And I don’t like to use the words “pain and suffering” or “emotional distress” in, really, at any time, even during jury selection.
I found over the years that, the term that I use: “quality of life.” I found that jurors, especially conservative jurors, if you say, and I’ve done this in focus groups, “How many of you, you know, what’s your feeling on whether you could award millions for pain and suffering?”
And they go, “That sounds a little ridiculous, especially the emotional distress. That’s ridiculous.”
But if you say, “How do you feel about wanting, you know, potentially millions for someone’s quality of life?”
They go, “Oh, quality of life. I mean, that’s valuable. Yeah.”
I mean, it sounds less whiny. It’s something that everyone kind of of gets: quality of life.
Now, if you’re suing a company and not an individual, the next step that I take is, I use the word “full accountability.” I always like to say, “Are you open to the possibility that it could take millions of dollars to hold a company fully accountable for the harm that they caused?” It’s not, and to me, that’s the way you ask that question. It’s not a punitive question. You haven’t crossed any lines, but I’ve asked people, I mean, I asked jurors, “How do you feel about millions to hold a company fully accountable?”
They’re like, even the most conservative jurors are like, “I’m for it.” They want it, they want full. And so that really goes into the jurors motivation for giving money.
Darl: You know, on the topic of damages, are you a proponent of, in voir dire, stating the amount of damages you’re going to be asking for in the case?
Harry: You know, I usually am not. And I know a lot of people and great lawyers who like to do it, and I don’t necessarily disagree with it, but I prefer it not be done.
I do think it’s important to say millions of dollars if you’re going for that much, or many millions of dollars, or even if you really want to make it clear that, you know, tens of millions of dollars.
But I don’t like to give this… I think the specific amount I just found strikes jurors as arbitrary, even though it’s not. Even though, you know, you obviously know what your client’s been through, and it’s not, you know everything. But because they don’t know everything, it just strikes them as very arbitrary.
I think it really creates a negative first impression for people. I know that the way that it can be used really well, you know, is to say, you know, “We’re going to be asking for,” you know, “four million dollars in this case, or 61 million dollars,” or whatever the number is. And when you have a specific number like that, “Who just here can’t do it?” or whatever. And you can get people off for cause more easily.
The problem is, unless you’re really good at getting people off for cause, and can get every single person off for cause who feels that way, I see a lot of lawyers and see me try to do that. And if your cause skills aren’t great, now you just wind up with a bunch of jurors on the panel that have a really negative impression of your case.
Darl: This isn’t a voir dire specific question, this will just tap in to your overall experience as a trial consultant: Are you a proponent of attorneys putting a specific number in their opening statement?
Harry: Probably also not. I think, if you’re thinking of you know, seven million or one million, I mean, I think you just say it’s going to be over a million dollars or many millions of dollars.
The problem is that you don’t know, you know, how the trial is going to go.
Darl: That’s been my fear is I’m always concerned that, like, what if something comes up and it just, you know, a lay witness bombs as a before and after witness, or our client does something, or they find something that was overlooked, or some, you know, prior injury or something?
And then it’s like, “Well, you know how in opening we said we were asking for five million? We’re actually asking for, you know, 1.5,” or whatever. And then I think you’ve sort of lost all credibility because now you’re backtracking.
Harry: You have. And, for example, I mean, I picked a jury a couple years ago with a good friend of mine. And he did give a number. He asked for, I think he asked for, like, six and a half million in opening.
Then the trial went like, incredibly well. It was a med-liability case, it was like a back fusion case where the defense were saying it was just a sprain and strain and they asked for $50,000 or something like that.
And it went so well that, by the end, he ended up asking in closing for like eight and a half million. And the jury gave him six-point-something, and they were the most lovely jury in the world, but after trial when he was talking to them, they went, “But one thing we didn’t like is you said, you know, you asked for this much in the opening and then you changed it.” And they were upset at him for doing it.
I think you just have to be kind of vauge. You gotta give them general parameters so they’re not surprised. They’re sort of thinking in the millions if it’s millions, but yeah, I don’t think you limit yourself.
Darl: Do you have any recommendations for ways that lawyers can prevent potential jurors from being rehabilitated?
So, you know, sometimes judges have very low thresholds of, after you’ve proven that they’re clearly biased, the judge says, “Well, you haven’t heard the evidence yet. If you hear the evidence, you agree you can be fair.”
“Well, yeah, judge, I can be fair. I’m not an unfair person.” Nobody’s going to say that.
But do you have any kind of signature questions that you tell lawyers like, “Once they commit to this position, you follow it up with this to make sure they can’t be rehabilitated?”
Harry: What you have to do then is you have to say, “You know, I appreciate you telling me this, you know, you have this issue and so I gotta ask you, so what you’re telling me is, even if you try your best to be fair, you’re telling me you don’t think that you’re gonna succeed.”
“Even trying your best, you’re just going to have this issue,” or “This thought in your head is always going to be there,” or “I’m always going to be, you know, facing an uphill battle, and that’s even when you try your best.”
So when you kind of get them to commit to that, I’ve seen jurors, you know, when they try to rehabilitate them say, “Well, you know…”
Like, even when the judge, you know: “Well, I’m going to read you the law, can’t you follow it, commit to following it?”
And “Like I told, you know, Mr. Champion, of course, but even if I try my best, I just don’t think I’m going to be able to do it.”
So that’s really where you have to really get in there.
Darl: So, there’s all sorts of ways to kind of lay the groundwork for teaching jurors about bias. And Keith Mitnick has a famous analogy: It’s the pie-eating contest, and you tell the jurors about, “Although you’re not totally opposed to this one particular type of apple pie, you’re predisposed to this other one, and if you’re asked to judge the contest, you’re not gonna throw it for one side or the other, but that’s the kind of bias we’re talking about and you agree that you should disclose that to the contestants.”
Do you have a way that you recommend lawyers teach jurors about bias to kind of lay the groundwork? Because some people do think when they’re answering these questions, “Am I gonna absolutely throw the trial for the other side?” Right?
If we’re getting into just, you know, we’re just asking here about biases and where your leanings are and we’re trying to explore that. Do you have any examples or analogies that you like to use?
Harry: Here’s the issue that I have with analogies like that, is that the first thing that I’m always doing and if I have a really good pace is finding ways to convince jurors, good jurors, that they are not biased. I’m really more interested in that.
And so I find that when you do an analogy to try to encourage people to recognize even the slightest amount of bias, I’m going to be losing just as many good jurors as I’m going to be getting rid of for cause jurors.
So let me tell you, I’ll take you through my way of keeping good jurors. So I call it pre-habbing. Sometimes jurors mistake the difference between having a bias and having a conscience. And so: “Some of you may have had really horrible experiences with landlords.” Or “Some of you may be very angry toward corporations or feel like there’s too many landlords or too many property owners or too many corporations that are doing the wrong things these days or putting profits first. None of that disqualifies you from being a juror in this case.”
You know, “How many of you had a horrible landlord or get upset about landlords these days?” and a bunch of people raise their hand, and you just pick on a few. So for that: “Is that a bias that you have or is that just having a conscience? Do you hate all landlords regardless of whether they’re good or bad?”
“Oh, well, no, I mean…”
“Yeah. So it sounds like you’re telling me that that’s just having a conscience.”
One thing I like to ask them too is, “Do you feel like bad landlords who mistreat their tenants, do you feel like they should be held accountable?”
And they go, “Yeah, absolutely.”
And you go, “That’s exactly what the law says. So it’s fine to feel that way. That’s the job of a juror: should they or shouldn’t they be held accountable?”
So the way I like to seal them up at the very end is to say, “Let me ask you this…” because you’ve gotten them to commit that they’re going to listen, the evidence is going to guide them, their decision, whether they have a reason to be mad or not, “if the evidence in this case convinces you, this landlord did absolutely nothing wrong, did they have any reason to be worried about you as a juror?”
And they go, “Nope. Now, if the evidence showed me that they did something wrong, I’m going to be angry.”
“Yeah, yeah, that’s fine. But if they did nothing wrong, any reason to be?”
“No.”
And so now you’ve made it almost impossible for the defense lawyer to get that person off for cause. And you’ve basically taken away a strike from the defense because there’s a lot of them.
Sometimes I’ve had cases where there’s several of them who were like, “Horrible experiences with landlords. I really don’t like landlords, but yes, I could be totally fair.”
And they’re like, “Oh my God, I gotta use strikes on all these people.” Sometimes it’s even more strikes than they have. You know, that scares the crap out of defense lawyers.
Darl: Yeah. We’re getting close to the end of the podcast here. And so we’ve covered a lot of stuff. And I have a few questions that I wanted to go over with you because this is all fascinating to me.
We’ve talked a lot about, you know, jurors and what motivates them and sort of how to identify people that may or may not be angry about a particular issue.
One of the challenges that I’ve found is things that I think will upset a jury, don’t. Like, I had a med mal case one time, this was when I was only a couple years out of law school, I was working at a law firm and the defendant just straight up lied on the witness stand, impeached with something the exact opposite from his deposition… jury could not of care. Defense lawyers basically calling plaintiffs liars. You know, you’ve got these nice plaintiff’s, there’s no basis for doing it.
How are we, as lawyers, things that we do when we’re bogged down in the daily grind of our cases that we get upset about, what’s the best way for us to know: How is a jury gonna feel about this? I mean, obviously, focus grouping is one way, but sometimes things just happen in trial that you’re like, “Man, I can’t believe they just did that. The jury is gonna be totally pissed about that.” And then they’re not.
Any advice on how to know whether to really hone in on something that the defense did in a case to try and just kind of turn the knife a little bit?
Harry: Right. You know, that’s a great question. I mean, I found that obviously, those things do matter. I mean, jurors do get angry when they feel like they’ve been lied to. But, you know, number one is, I think, jury selection. It’s probably mostly a jury selection issue. You gotta make sure that you get people who are gonna be upset.
Like if you know, for example, that you’re gonna impeach somebody like crazy, you wanna make sure to make that a big point. Typically like an employment case, there’s some pretext. So we’re saying, “Hey, they fired this guy because of age,” and they come up and the defense is gonna say, “No, no, no, age had nothing to do with it. It was because of performance,” or something like that.
And the problem is that even if we can blow up their pretext a lot of times, that doesn’t make any sense. A lot of times, jurors will say, “Well, yeah, but it doesn’t mean it was age necessarily.”
And so I always like to tell the jurors in voir dire, “You get to make decisions about credibility. But let me ask you this question: Do you think if a company did absolutely nothing wrong, or in your case, you say, if a doctor did absolutely nothing wrong, do you think that that doctor would have any reason at all to lie to a jury about anything, even the smallest thing in a case?”
And some jurors will tell you, “Yeah,” and they’ll come up with justifications and you gotta get rid of those folks, for sure. But the other jurors, I mean, at least it gets them a little more tuned to it, so they’re looking for those lies and they’re already thinking like, “He’s covering something up.”
You know, “Are you open to the possibility that a defendant lies to you about something no matter how big or small it seems to be that they could be covering something up?”
You’ll at least open them to that possibility and that really I think tunes them into, “Okay I’m gonna be scrutinizing this guy.”
But there are some jurors who just think, you know, for example, I’ve heard them in focus groups say, “I can see why a doctor would lie about, or an employee would lie about, things if they’re getting sued and they knew they didn’t do anything wrong but something didn’t look good. I could see them lying. There’s nothing wrong with that. It doesn’t mean that they’re guilty.”
Darl: Yeah, I mean, it seems like to me like jurors sometimes take the view that like, “Well, they’re just defending themselves, it’s fair game.”
And maybe that’s a good question to ask: “Is there anybody here who thinks if you’re being sued for something, you can just raise everything under the sun, even if it’s not applicable to the facts of the case because it’s fair game? Like you can do whatever you want?”
I’ll write that down as a question for me to ask in my next case.
Harry: Exactly, but I would tie it back to like, “Do you think that they would have any, if someone did nothing wrong, would they have any reason to lie at all?
Darl: Yeah, maybe go into some more specific stuff related to the case. I mean, do you have any recommendations for how lawyers should structure the organization of their questioning?
Harry: Sure. Yeah. You know, no hard and fast rule, but I always like to think the, what I call the pre-habbing, the thing we just talked about, where you’re framing what bias is and isn’t, to do it early on so that you make sure you’re not inadvertently losing any good jurors who just say, “I can’t be fair.” Because you got to tell them what fair is and isn’t first.
And I always think the liability should come first. You know, damages always come last because I’ve just had a lot of jurors react negatively when money, in a disputed liability case, when money comes up first. Jurors just get this impression that, “Why are you asking about money? You haven’t proven anything. You got to prove your case.” I’ve seen jurors angrily say that.
And you’re like, you know, you as a lawyer know, like, “No, of course, I have to prove my case. I’m not asking you for money now, I’m just talking about money in voir dire.” But that’s the impression I get.
Darl: So are you a proponent of juror questionnaires?
Harry: You know, sometimes. Probably less so than I was, because I just found that it makes it harder to prove my case. I hate when questionnaires say, “Is there any reason you can’t be fair?” because, like I said, you’re going to lose a lot of jurors who you could pre-hab otherwise.
Now, the exceptions I think are if you have a case where the judge is really severely limiting your voir dire. Or federal where you get no voir dire. If you’re in a venue with no voir dire, I think it’s worth it though. So, I know, working with a case in Colorado where the judge typically gives 20 minutes. And that’s, you know, total, for everybody. So that’s not, I mean, in that case, I’m like, “We got to do a questionnaire.”
Darl: Wow. Yeah. On this topic of juror motivation and juror psychology, I’ve seen a lot of people, especially on the defense side, attacking the Reptile Theory.
And I think most people listening are familiar with that because this is a podcast for personal injury lawyers. But it’s sort of become the boogeyman for the defense. And it’s just fascinating to me because so many of the top trial lawyers I know have never read the book. And again, that’s no slight on the book. I mean, it could be phenomenal and have some great tidbits in there. But so you’ll get sometimes these broad motions in limine where it’s like, “No reptile strategies.” And it’s like, “Well, what does that even mean? Like, how are you supposed to even craft a ruling that’s based on that? What does that mean?”
What do you think has led, well, I guess first of all, I mean, do you think that this sort of trend towards larger plaintiff’s verdicts is because of the reptile theory? And what do you think is behind this perception that it’s this, again, this boogeyman? It’s this thing that’s just people point to and say, “Oh, well, it’s that.”
Harry: Yeah. Right. Yeah, that’s a great question. I think the biggest trend that’s bothering the defense industry is that it’s not just the Reptile, but there’s a ton of books and a ton of techniques. Plaintiff’s lawyers are amazing at sharing information and coming up with new ideas.
And the defense bar is just not, they don’t share information and they don’t come up with new ones because they don’t innovate and work, you know, on this side. We’re always innovating.
And so it’s not just the Reptile, it’s a million other things, too. I don’t know why the Reptile, I mean, the Reptile is probably the one that’s caught their attention because there’s parts of it that can go too far. But yeah, like, I agree with you. Most lawyers do not really use it very much, if at all. And I see these motions all the time too. Or I see objections where they’re like, you know, “Reptile theory” or something something like, objecting to something as being Reptile. And it’s like, “What’s that even mean?”
But, you know, it’s just amazing to me the defense lawyers seem to, the thing that they can’t accept is that regular people could be, you know, inflamed and upset at bad conduct because of the bad conduct.
Darl: Yeah, they think there must be some trick or some manipulation the plaintiff’s lawyer did. You know, my sort of philosophy or theory behind a lot of this is everybody’s always looking for an easy out or an easy explanation.
And, you know, on the plaintiff’s side, for example, it’s easy to try to find like the one book, the one strategy, the one tactic that’s going to provide this formulaic approach for me to just plug in my facts and the case is just there. On the defense side, if something bad happens, it’s easy to say, “Well, it was those lawyers with the Reptile method.”
But I didn’t want to ask you if you were aware of this: Do you know what the defense lawyers comeback is for Reptile? What they’ve created a strategy for it?
Harry: Yeah, the Mongoose.
Darl: The Mongoose method! Because mongooses eat reptiles.
Harry: Exactly, yeah. And as I understand it, it’s not even just a trial thing, it’s more of a how to prepare your PMKs and your witnesses at deposition and not fall into the trap and everything. And so the funny thing is the advice I’ve given people is like, it’s very easy to train a defense witness on the Mongoose theory of like how to be sort of, “Wow, that’s too specific,” you know, but, it takes a lot more work to really train, it is impossible to train someone to really defend what they’re saying. So if you attack them, like “Well, is safety always first to the company?” and they’re trained under the Mongoose to kind of say, “Well, safety is very important and it’s one of the things that we have to balance. But there are times when other things, we can’t do our jobs effectively if there’s that kind of thing.”
Darl: I love the way this questioning is going, by the way. As a plaintiff’s lawyer, I’m writing this down for my closing so I can put it up there. I mean, because that’s part of it. I mean, that’s, that’s the whole idea behind, you know, Rick Friedman: Rules of the Road. I mean, classic book, and the whole idea behind Rules of the Road is: a no answer is bad. Wiggling out of it looks bad. If it’s anything other than unequivocal, yes, it looks bad.
But again, I think a lot of it is just trying to… I don’t want to use the phrase like “mental laziness” because I do think it’s, I mean, that’s natural psychology. People look for mental shortcuts. That’s neuroscience and the whole idea behind heuristics: we’re looking for these little mental shortcuts that we can use to explain things. And it seems like Reptile has become that thing.
Harry: I’m not concerned about, you know, the Mongoose theory.
Darl: Harry, I appreciate your time with us today. I’ve got one more question for you before we wrap up: You got any great stories about maybe the worst panel you’ve ever encountered or the worst potential juror? Anything that is an example you like to give when you’re speaking to lawyers?
Harry: Sure, you know, and I didn’t prepare for them, but I mean, I could think of a couple funny things.
I remember one panel, generally, I was picking a jury in a really, probably the, toughest venue in Southern California. Which I’m sure if you’re in some rural parts of the country, you’re like, “Yeah, you know, whatever, poor you, picking one in, you know, North County, San Diego.”
But, you know, it was a case where the defendant’s excuse for hitting this girl crossing the street was, “The sun was in my eyes.” But he admitted that like, “Well, sun was in my eyes, but I can’t, I didn’t stop and pull over. I kind of kept driving,” and he was like, I don’t know, hit this person.
And so we were asking the jury, like, you know, “Has anyone ever gotten the sun in your eyes when you’re driving, you can’t see?”
And almost all of them are like, “Yeah.”
We’re like, “What do you, what do you do?” You know, assuming that most of them are going to be like, “Oh, you pull over, you do this.”
And they’re like, “There’s nothing you can do.”
“Do you keep driving?”
“Yeah, we keep driving.”
And then we’re like, “What’s the longest that you would keep driving if you can’t see?”
“Like a minute.”
Sitting there and like everyone agreed with it, and ended up being a, you know, a defense verdict, nothing we could do. Every juror.
Darl: Wow. Yeah, I mean, I’d probably be like, settle, settle, settle.
Harry: Yeah, I’m like, what is wrong with these people? They’re all just sitting there casually saying nothing wrong with driving for a minute when you can’t see a thing.
And then, so I was picking up a jury, worst probably juror, like one of the worst, I’m sure, a few months ago.
And it was a dangerous condition case against a city, where this guy goes out to the city, a park, and he’s just exercising. He’s like a little off the path or whatever. And this like, the city has like these big sprinkler heads on the top of this big, huge, like, 20-foot pole to like, water the trees or something. And it’s like, never been inspected, never been maintained. It just falls off and cracks him right in the head. It’s like this big, huge, heavy, rusty sprinkler head.
And so we started asking people, “What are your feelings on whether property owners have any responsibility to routinely, proactively inspect and maintain things as opposed to just waiting until someone reports an issue?”
And we had a few really lousy jurors, but I remember this one guy, he had like this think Irish accent, and he was like, “Well, I’m a landlord.” He’s like, “The only thing that I do is follow the things I’m required to do.” He said, like, “I’m required to check the furnaces in the apartment building, like once a year by requirement.” He’s like, “Frankly, if they did away with that requirement, I wouldn’t ever do it again.”
And I’m like, “What’s wrong with this? He’s like a horrible human being.”
He also said, like, “If I had known that I would have to serve on a jury, I never would have become an American citizen.”
And like, there was a couple other folks who were just horrible human beings just saying like, “You should never have to inspect something.” And it’s just, you know, you just sometimes, you’re shocked. Thankful that they spoke up and you got them off for cause and everything, but shocked.
Darl: Wow. Well, I can tell you, I mean, for me, and this comes up a lot in focus groups, it’s terrifying sometimes the opinions people have and it’s terrifying when you hear it in open court.
Like the example I gave earlier where the guy was talking about how ringing in your ears is not a big deal, it actually helps him sleep. And I’m just sitting there like, “Oh my gosh,” like, you know, “most people, it’s a very disruptive condition.”
But you know that’s why we have to ask the questions and try and get them off our jury.
Well, Harry, thank you so much. for joining us today. We really appreciate your time. If any of our listeners want to check out Harry’s website, it’s yournextjury.com. You can read more about Harry, read more about the results he’s obtained in selecting jurors, and can also learn more about his services.
Thank you, Harry.
Harry: Absolutely. Thanks so much for having me on. It was a lot of fun. I wish we could keep talking about this for a couple of hours and, you know, maybe another time. But thank you so much, Darl.
Darl: Awesome. Thanks, Harry. Take care.
Harry: Will do. Take care.