You Need to Know This Principle to Pick a Jury, with Bo Fraser

Welcome to Elawvate, the

podcast where trial lawyers,

Ben Gideon and Rahul Ravipudi talk

about the real issues that come with the

fight for justice. So let's

find inspiration in the wins.

Let's learn from the

losses. But most of all,

let's keep learning and getting better

and keep getting back in the ring.

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Hey, it's Ben.

Rahul and I started this podcast because

we love hanging out with fellow trial

lawyers and sharing ideas

that can make us all better.

And both of our firms also regularly

collaborate with other lawyers across the

countries in cases where we can add value.

If you're interested in collaboration or

even if you just have a case or an idea

that you want to bounce

off us or brainstorm,

Rahul and I are going to be hosting

confidential case workshops the first

Wednesday of each month.

So here's how it works.

If you have a case or an idea that you

want to talk about or brainstorm with us,

just send me an email to ben@elawvate.net,

E-L-A-W-V-A-T-E. Net,

or go online to elawvate.net and

submit a case workshop request.

We will schedule you for a confidential

30-minute Zoom meeting where we can talk

about your case to see if we can help.

If you feel like there would be good

value in collaborating on the case

further, we can talk about that. If not,

that's okay too.

We enjoy helping other trial

lawyers because we know

someday you'd be willing to

do the same for us if we

needed your help. So again,

if you're interested in

workshopping your case with us,

just send an email to ben@elawvate.net

or fill out a case workshop request at

elevate.net, and Rahul and I will look

forward to chatting with you soon.

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Good morning and welcome to the

Elawvate Podcast. I'm Ben Gideon.

Rahul is off today back

in the social media trial,

so we'll look forward to hearing from

him, how that's going once he concludes.

I'm thrilled today to be joined

by Bo Fraser. Morning, Bo.

Morning. Thanks for having me.

And Bo is coming to us from California,

right? Where are you actually today?

I'm in San Diego. That's where I live.

Nice. And I was kind of joking

that I was late to the show here,

even though it's 9:00 AM in the East Coast

where I am and only 6:00 AM where you

are. So appreciate you getting

out of bed this morning.

I don't know if you're typically

an early riser, but ...

No, I'm definitely not a 5:45

wake up kind of guy normally,

but no problem to do it for this.

So Bo and I have gotten to know each

other from working together on a couple of

cases, and I've really

enjoyed working with you, Bo,

and learning from you. So

how do you describe yourself?

You're obviously a jury

consultant on some level,

but I feel like you're more than that

because you've helped us with other

elements of the trial, case

framing, trial strategies.

What title do you typically go by?

Right.

I like to use the term trial consultant

for that reason to not pigeonhole to

jury selection,

which is sort of the bread and butter

offering that people usually come to me

for is I need someone to pick

my jury. Can you help me?

People don't realize a lot of what I

do comes long before the jury selection

process begins. Not just

preparing for jury selection,

but opening statement

preparation, witness preparation,

mock trials. So much happens long

before we get to the courtroom.

So that's a big part of what we do.

So I was first introduced to you

and your mom by Charla Aldous and

Brent Walker, who I know you've

worked with quite a bit, right?

That's right. Charla's a

great client and a friend.

In the first case we worked on, initially,

we worked together with you and your mom,

and then you came up and helped

us pick our jury in that case.

Just kind of curious, you

don't see a lot of mother, son,

business partner teams.

Can you give us the backstory on that

and how did you come to this somewhat

unique line of work?

Yeah. So all credit to my

mom for pulling me into this.

We both have PhDs in social

psychology. My mom, Jaine,

was a practicing therapist for

many years, 20 years almost,

even though that's not normally

what social psychologists do.

She got licensed to do therapy

and she did that in Dallas.

And that's all I remember growing

up was her being like a shrink.

And there was some lady named

Lisa Blue met my mom at,

I forget what event in Dallas, and

they hit it off. They had a friendship.

And Lisa kind of thought that my

mom had potential to pick juries.

And at the time, Lisa was

wanting to focus more.

My understanding is that she wanted to

focus more on the trial lawyer part,

because as you know,

jury selection is so upside down world

compared to what you do the rest of

trial. She sort of wanted to outsource

that part of her brain to someone else.

And so they could pick the jury and

she could focus on being a lawyer.

And so she taught Jaine and

Jaine was a very fast learner.

And one thing led to another.

And Jaine kind of started at the top

because she was trained by Lisa and also

had her sort of endorsement and she hit

the ground running and was so great at

what she does. I took that for

granted as a kid and adolescent,

not realizing what a badass ...

I don't know if we're allowed

to say that my mom was.

And I kind of tried to not

take over the family business.

It sounded like the easy way out,

not necessarily what my

vision for my future was.

I tried to become Don

Draper after grad school,

go into advertising and marketing.

And I realized what a cool job

was right in front of me all along.

Not only was it a great career,

but it's so interesting.

Every day, so different.

Clients are eager to hire you

as long as you do a good job,

which was totally different than

marketing where budgets are slim and

so much competition.

It was just a much more

enjoyable field to work in.

And so despite my best efforts, I

got pulled into the family business.

And any concerns about working with your

mom were kind of a non-issue because we

so love what we do. I mean, we

text each other all the time.

It's been an interesting addition to our

family dynamic is now being colleagues

and just being so interested in what

the other's doing. How's the jury?

All we can think about is,

how's your jury? How'd it go?

And you sort of develop this just love

for your field. And so that maybe is

genetic. I'm not sure,

but that's sort of the story of how I

became a jury consultant thanks to Jaine,

my mom.

Do you need a PhD in, what did you say?

Social science or what is your PhD?

You definitely don't need a PhD

to become a jury consultant.

I do think it adds a lot of value at

other common fields that people come

from are obviously law. You see sometimes

attorneys become jury consultants.

I've also seen people with

communications degrees,

masters or PhD become consultants.

I think social psychology is particularly

suited conducive toward this field of

work because one is the

research background.

Doing mock trials and having this

pretrial research component to what we do,

it's so helpful coming from

a real scientific background.

We are much more rigorous in the way we

recruit participants than other firms.

We refuse to take people who are serial

research participants who participate in

focus groups and mock trials all the time.

That's just one example of how we kind

of take our recruitment more seriously.

Having a research background enables you

to design your studies in a little bit

more of a controlled way.

Sometimes we'll run two groups where you

manipulate a variable in one group

and don't manipulate it in the other.

The other reason is there's so many

principles of social psychology that come

into play in a courtroom. Persuasion,

leadership clusters developing

in the jury. Really,

the number one and most easy to explain

social psychological principle that

affects what we do is bad

is stronger than good.

That's actually the title of the most

widely cited social psychology article in

history, at least at the

time I was in grad school,

which has been a few years now.

But the general idea is negative

valence stimuli are so much more

powerful and persuasive than

positive valence stimuli.

And that's why when we do

opening statements together,

almost exclusively focused on the bad

acts of the defendant as opposed to the

redeeming qualities of the plaintiff,

especially early in your case,

no one cares about you or your plaintiff

yet. You're not going to win them with,

"We're the good guy and here's why story."

Following a villain and getting mad

at a villain is so much

more in our nature,

especially when we're in a situation

where we don't know the context yet.

We hardly know the characters.

You're more likely to win someone over

with hate for the bad guy than love for

the good guy.

So that's rooted in social

psychology.That's not necessarily

something you need a social psychology

degree to understand or implement,

but having that background, there are

opportunities to say, "Hey, wait a minute.

I think that based on this

study or this rule or principle,

we have pretty good reason to believe

that this is how this dynamic will play

out and this would be the most

effective path forward." I.

Mean, that certainly rings true from

the cases I've tried and my own life

experience. But talk to us a little

bit more about that because that,

what you just said on its face

seems very straightforward,

but implementing that in the context

of a case can be challenging and seems

like trying to identify what is going

to cause somebody to get angry or

perceive someone as a villain.

Sometimes I feel like we think there

are things that cause someone to be

perceived as a villain, but

they aren't necessarily.

We misjudge that because we're too

deep into the weeds of the case or

in a medical case, maybe the medicine,

but jurors might be willing to give a

free pass on something that to them sounds

disingenuous when we're arguing it.

So just how do you go about figuring

out what is that point of leverage in a

case that allows you to generate that

emotional attraction with the jury?

Yeah. So it's a great question.

And some lawyers have the

curse of knowledge and

they're drinking the Kool-Aid

of their case from day one.

I'm not saying they're totally

blind to the weaknesses,

but what happens a lot of

time is exactly like you said,

it seems really strong and it seems like

a great point to you or the attorney,

but either they can't

communicate it effectively or

it just doesn't hit the same

way they think it hits. So a lot

of my job is to really get in,

because the attorney's feeling it. I

can tell this is meaningful to you.

Help me get there.

Help me get that feeling so

I can translate it to normal

layperson speak and try

to deliver that same point in a way that

someone who's just been introduced to

this case can A, understand and B,

be comparably persuaded to the extent

that the Kool-Aid drinking lawyer is

persuaded. There's a lot of

ways to kind of amp up the

nefariousness of a bad act.

When I get brought into a case,

there's two lists I just start writing

from the very first kickoff meeting.

There's the voir dire list. These are the

topics I need to address in voir dire.

I know these are going to be our Achilles

heels and I just start making that

list. The other one is

the tickoff factors list.

All the things that I'm hearing that

have potential to make a jury mad.

A lot of times those tickoff factors

are best understood by explaining to the

jury what should have been done.

If a doctor really cared about their

patient, here's what they would have done.

Juries don't appreciate

wrongdoing until right doing,

so to speak, has had light shined on it.

Whether it's an industry norm that people

don't realize that pre-shift safety

meetings are not some going over

the top measure that a construction

company needs to take,

it's actually standard practice.

And if you don't have pre-shift safety

meetings, you're cutting corners.

Jurors who aren't familiar

with construction have no

idea how common or normal

these things are. This could be

framed by the defense as we went,

so we even had pre-shift

construction meetings.

Look how awesome and

above and beyond we are.

Or the plaintiff could take the same

thing and say they only had pre-shift

construction meetings once a week,

but they work six days a week. I mean,

the same fact could be

framed in two different ways.

The most useful tactic from case

to case on this point is to inform

jurors, what's the norm? They

don't know what the norm is.

And as the plaintiff going first,

you have the advantage of

establishing the norm early.

If the defendant really cared, here's

the things they would have done.

And very often if you get

granular and make a list,

you can really get impactful with all

the corners they cut. Did they follow up

with her after her

initial appointment? No.

Waited five days for

the next communication.

We worked on stuff like that where you

really have to think about not only what

they did, but what they

didn't do and could have done.

So I mean, big point,

that's more important than good in terms

of motivating people to take action.

Are there other kind of themes of

social psychology that you see as

common threads that run through

trials or trial prep and jury

selection?

Yeah, there's tons.

So I think sort of an expression that

we use a lot of the time is if you get

really mad, the jury feels

like they don't have to.

And I tell that to attorneys who

get really amped up in their tone or

witnesses too.

If a witness is on the

stand and takes the reins in

terms of being mad at the defendant or

getting upset or aggressive with opposing

counsel,

the jury feels like someone has

assumed the role of the defender,

the Batman, the person who's going

to do something about justice.

So I always recommend that

attorneys lead them to

that point where they

can get angry themselves,

but don't take that

responsibility away from them.

Because if you take that position,

it's like that job has been completed by

someone else and the jury can just kind

of sit back and let you be the angry guy.

There's a number of other

areas in which psychology comes into play,

but that one comes to mind because we

have a nice kind of saying expression

around it. You get mad,

the jury doesn't have to.

Hadn't heard that before,

but it makes a lot of sense.

One of the things I've really enjoyed

in the process working with you guys is

we tend to put a lot of detail

and focus into our case.

And we like to give our best shot

at putting something together.

We put together an opening

typically before you get involved.

That way we're not using you as a

crutch to do our job for us or to

figure out the details of the case

because we think it's important we can do

that. But then you come in and help

us really clarify and simplify,

starting with the kind of clay we have

and helping us mold it into something

that's much more simple and easy

to understand and to lay people

and maybe more highlights the more

salient and important elements of it.

Is that a typical process that you follow

or do you tend to start earlier with

other clients? Tell us a little bit

about how your process usually works and

what's the ideal way

to work with you guys?

There's a huge degree of variability in

what situation I'm in when we come in

for those opening statement workshop days.

People don't realize those

opening statement workshop

days are more grueling on

my end as a jury consultant, even than

picking a jury, believe it or not.

Picking a jury is high stakes,

fast moving, really intense.

But something about those

opening statement workshops,

because you're taking hodgepodge

of facts that you've been given.

Sometimes you've had

multiple meetings beforehand.

Other times I learn about the case

as I walk into that opening statement

meeting.

It's just you're taking it from one state

and converting it into another and it

better be good because they're

paying you for it. So it's a lot.

Something about what it makes your

brain do is very challenging because

you're reformatting this information

into something that's persuasive and in a

way artistic. I mean, it is supposed to

be aesthetically appealing, persuasive,

concise.

And it's like Mark Twain said,

"I would've written a shorter story

if I had more time." So a lot of it's,

how do I take all this information

and get it into this small format?

It's so much more helpful when the

homework has been done beforehand.

And I know a day, a week

before what the case is about,

I can start thinking of options for

my one, two, three acts and chapters.

We follow the Cliff Atkinson beyond bullet

points method. It allows me to sort,

even if it's subconsciously,

just sort of prepare,

get some ideas and inspiration and then

come back to you guys, just like you,

Gideon Asin comes to me with a rough

draft of what they have in mind,

I can sort of come in and say,

"Hey, I think this would be cool,

but I'm missing a couple facts to make

it really great." And so you get more

impressive output if you do some prep.

A lot of the hard part is really

taking the story and digesting

it and then having time to do

that is really crucial.

Teaser, spoiler alert,

I'm actually working on an AI tool

to help with this whole process,

not only for me, but for attorneys who

might want a killer opening statement,

but don't have the budget for someone

like me, especially for every single case.

As I was making this AI tool,

I realized what an important part of

the process it is to go from getting the

case info to just beginning this meeting.

I didn't realize what a big part of my

job that was because I just think of the

creating the PowerPoint,

that's kind of the deliverable.

But that phase where you go from hearing

about the case to just beginning the

PowerPoint,

there's a lot going on in one's

brain that AI is going to ...

I'm really interested to see what AI

is able to do as good, if not better,

than our people human minds.

Well, it does seem to be the

trajectory of things with AI.

And I have to confess we do use

it a lot in different elements,

but I do think it still falls short

in many of the very final touch

translation to the human

communication side of things.

It's a little tone deaf on some

things, but I'm sure it'll improve.

Back to that process, I mean,

the way you described it as being

really challenging, and I mean,

that's how I find it.

You kind of have this baby that you put

together and tended to and watered and

nurtured and cared for.

And there's a psychological

component of having to give

some of it up, having to change things

that you thought were important or

recognize that the way you're framing

it or presenting it isn't as effective,

really hard to do because you're

challenging your own assumptions,

your own work product that you've worked

on sometimes over the course of years.

And I can feel when we're doing that,

and we do it as a collaboration with

everybody who's been working on the case,

and that collaborative process,

it's challenging and my brain

literally hurts doing it,

but it's sort of like doing a workout.

You know you're having great benefit

from it because of the painful process

you're going through and coming out the

other end with something that's better

than you went into it with. But just

the process itself has, I think,

enormous value. And we use those opening

statement workshops, not just to ...

It's really the pretext is

getting an opening statement,

but really the bigger goal is to frame

the entire case and then have a roadmap

for how we're going to try

the case. What are the themes?

What are we going to

emphasize as important?

What are those couple points of leverage

that are going to make the difference

in winning or losing? Those are all

the things we're identifying in that

meeting. And I feel like having you there,

bringing an outside perspective and

somebody with a fresh set of eyes to the

case is incredibly valuable to us.

And I would say probably any really smart

person who brought a fresh set of eyes

would be valuable,

but I think having you with

your background and experience

and knowledge of human psychology

and so forth is even more

important. So it's a very, I think,

just a critical and important part

of our trial prep process now.

Along those lines,

I've had people tell me the first

time they'll hire me to do an opening

statement, they'll say, "Man, I wish I

had brought you in before my discovery,

before I did all my depositions." Because

even though that seems excessively

early, so long before trial,

like you said, the framing,

it makes you realize, "Oh man, I really

need to amp up kind of side of my story.

I wish I had a line of

questioning on this topic.

I wish I had asked this witness

X, Y, Z." The earlier you do this,

the more prepared you can be in discovery

to get all your evidence aligned

with your theories.

That's true,

but there's actually a real power in

not doing that because when we get

to trial,

the case we're presenting is often quite

different from what the defense has

anticipated based on a

couple years of discovery.

And we're now asking questions

or highlighting themes

that they're not prepared

for. I kind of like that. It's

like we have, I don't know,

it's maybe you come out in the second

half of the Super Bowl and you've made

adjustments and now you're

playing a different game

than you were playing in the

first half and they're

just not ready for it.

So there's a way in which that there's

value to that. I mean, it's new to us,

but it's new to them too and

it new to all the witnesses.

They're not anticipating those questions.

Can we move on and talk a little

bit about jury selection? So I mean,

in my home state of Maine,

up until a few years ago,

we didn't really have the opportunity

to do lawyer directed voir

dire. In fact,

the case you came up and helped us

pick a jury on a couple months ago

for that judge who picked

that particular jury,

that was the first time he ever

allowed attorney-directed voir dire.

So I've learned a lot working

with you because we hadn't

had as many reps, although I've

done it in other jurisdictions.

We did one in New Hampshire, for instance,

where they've allowed it for longer.

And Vermont done cases there

where they allow it. But can you,

starting maybe from the

simplest elements of it

going forward for people who maybe have

never done attorney-directed voir dire

before or in a state like mine where

it's rare and not available as often or

only more recently, give

us kind of the basics,

the very basic primer on what are the

goals? What are you trying to accomplish

in attorney voir dire? Let's say you

only had a limited time, 30 minutes,

an hour, and you can only

accomplish certain things.

What are the highest priority

items that you need to do?

And then we'll kind of take it there

and get more involved from that point.

30 Minutes or an hour. I mean,

things change drastically,

which sections to chop, what to

prioritize, how everything flows.

So it's super contingent on how

much time you have. The general,

starting with a broad

psychological principle,

my philosophy is you can't change people's

strongly held, strongly held beliefs.

It would be futile.

You'd be silly to get up and voir dire

and think that you're going to get up

there and change people's minds.

You might as well use that time to figure

out what those strongly held beliefs

are,

specifically the ones that are likely

to sink your ship if these people end up

on the jury.

So the way we structure our questions

are all around being honest with yourself

about what your case weaknesses are.

Don't think that you're going to be able

to convince people or win them over on

an issue that is a true weakness.

So identify your case weaknesses.

Start by making a list of, here's the

things, if defense is going to win,

it's going to be on these topics or

it's going to be because my client is

350 pounds and is suing

over a failed knee implant.

Things like that, it's

like these are big hangups.

So be honest with yourself about what

those are. And then- A woman who did.

Fentanyl and heroin throughout

her pregnancy, for example,

which we had in one of our cases, right?

Yeah, that was quite an uphill button.

And then suing over a birthday. So yeah,

that's a great one. From

the plaintiff's perspective,

which is almost always where I am, it

is always where I am on an injury case.

I like to open with the

burden of proof topic,

not necessarily because the burden

of proof is itself a huge hangup,

but because we use it

as a nice icebreaker.

So that's probably a longer

conversation we have time for today,

but the point is you want to get a

conversational tone established early.

You want jurors to feel like this

is a situation where they are

meant to do as much of

the talking as you are.

They're in a courtroom

possibly for the first time,

very likely the first time in a jury

selection, so it's a foreign environment.

It's weird. They're a little

caught off guard. When in doubt,

they're probably just going to shut

down and be quiet unless you put a

microphone in their hand.

So we use the burden of proof topic as

an icebreaker to get people talking,

talking about law shows,

what burden of proof is normally relevant

to those criminal lawsuits they see in

law shows.

We use that as much to get

the conversation going as

we ask people's opinions

about burden of proof.

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and learn from the best.

One thing I really like about your

approach is you get the jurors talking

immediately,

whereas a lot of lawyers approach to

voir dire is to start by giving a speech

about the process. That's what I used to

do. And there's different types of it,

the Keith Mitnick, Cherry Pie or

whatever, I don't know, Apple Pie.

And all of that is actually,

it can have some value,

but the problem is just what you're doing

is communicating that you're going to

be doing the talk.

Right. It's the precedent

that you're setting. I mean,

think of an imaginary clock

on the wall. It's like,

and the timer starts as soon as

you start talking. It's like,

"I'm going to be up here talking for

90 seconds thinking I'm getting through

this information fast,

but I am establishing the norm that this

guy in the suit behind the podium is

going to talk to us for the

next 30 to 60 minutes." I mean,

that is what your actions are saying,

even if your words are saying otherwise.

This is the only part of the trial where

I get to hear from you and then you go

on to talk for two minutes.

It's just kind of ironic.

And why not just put the ball in

their court right off the bat?

The first question we

ask before I say, "Hi,

I'm Ben Gideon." Our very first question,

"How many of you watch law shows

on television?" Raise your hand,

which is so not what you're expecting

because they've heard dry instructions

from the court. They've been

herded around like cattle all day,

and then you get up there with some

papers and looking like you're going to be

as formal and stiff as

everyone else, and you say,

"How many of you watch law shows on

television?" It's just kind of like a

departure catches you off guard

in a good way. It's like, "Oh,

I'm at the coffee shop with my buddies.".

Yeah. And you're not

putting them on the spot.

You're not asking them sensitive or

intimate information about themselves,

just easy questions.

Everybody watches some law

show At some point on TV is-.

The second question is how many of

you don't watch law shows on TV?

Raise your hand. And within

the first 10 seconds,

everyone in the room has raised their

hand because you either do or don't watch

law shows. And what that does to

them subconsciously, psychologically,

it teaches them, I am a participant,

not an observer in this process.

Even if you're an introvert,

even if you're not the type to shout

out your answer, you're engaged,

you're listening, and you

know that you have a role,

an active role in this process. So

that segues into burden of proof,

but really it's just more about

establishing that dynamic so that you

don't have any snakes who feel like they

can just kind of be quiet and end up on

the jury. You're more likely to get

the haters speaking up because of this

precedent,

this norm that you've established early

on. So even though it does eat quite a

bit into, maybe not quite a bit,

you can get this section

done in five minutes or less,

it's worth it for what

it does to that dynamic.

In addition to case specific weaknesses

that what I was talking about earlier,

like with your drug using pregnant

mother or something like that,

there's a lot of topics that are

applicable across pretty much any type of

personal injury lawsuit.

And what the common denominator

to these are opinions that people

have that are fairly common

that would affect your case.

So people have negative opinions

about lawsuits in general.

The most common thing that jurors bring

up when we talk about negative opinions

about lawsuits is the

McDonald's hot coffee.

That's like the poster child of frivolous

lawsuits in people's minds because of

all the media attention it got.

Even if the attorney themselves,

they don't bring up that topic,

very often a juror will bring up that

topic when we're talking about who has

strong negative feelings about lawsuits

or strong negative feelings about

personal injury lawsuits in particular.

We want to ask those questions and not

in a way where it's, "I'm just making

sure nobody has negative opinions.

Does anyone have negative

opinions?" If you ask it like that,

people are going to say, "No,

not really. " If you say,

"This is a very common opinion that I

know a lot of people feel very strongly

about this. " Tell me your

thoughts about that. Now,

just notice the difference in those

prompts. I know a lot of people have it.

Tell me your thoughts as opposed to,

does anybody have a problem with that?

Does anybody, just those words alone

implies maybe you do, maybe you don't.

There's a chance no one in this

room has a problem. But if you say,

"Tell me your thoughts about that. "

The implication behind those words is,

"I know someone in here has something

to say about that. Spit it out.

" And so that's woven throughout our

process, the finesse of language.

And it sounds like kind of trivial,

like people are probably skeptical.

Do jurors even pick up on this? But

I'm telling you with repetition,

and since you're doing

this with every topic,

the who else versus anybody

else has a huge impact on

speaking up.

And you're not forcing people

to say things that they don't

actually believe.

You're just encouraging them to speak

up in an environment where it's a little

bit daunting to do so because there's

other people around, it's a weird topic.

Even if they have opinions about lawsuits,

it's probably not something they

think about all day, every day.

So you do kind of have to roll out

the red carpet for them and open the

door and make it easy for this

to pour out like a floodgate. So

opinions about lawsuits are crucial.

Demographics are really boring,

but an important part of the process,

depending on what's on the

juror questionnaire or bioforms,

try to fly through demographics

as much as possible,

but experience trumps everything.

There's another expression

that we use all the time.

Someone who works in a field,

obviously like insurance adjusting and

says no to people all day long or HR also

says no to people all day long,

wouldn't want anyone in the

medical field on a med mal case.

There's a number of different

occupations and backgrounds,

black and white thinkers like

architects, construction workers.

Restaurant owners is an interesting

one that you might not expect because

restaurant owners might seem like

blue collar profession or they

rub shoulders with people

of all walks of life,

but really restaurant owners get sued

all the time for frivolous stuff or

restaurant managers slip and falls.

So they're awful. So those are just some,

even though that's not really a line

of questioning you would go into during

voir dire,

if you don't have that information on

the bioforms or jury questionnaires,

you've got to find out who falls in

at least to these problematic fields

really quickly during your voir dire.

I guess the final category of

non-case specific questions to

ask during voir dire is damages. And we

intentionally leave damages to the end.

The reason we do that is because you've

dragged them through the mud on all the

bad things about your case. This

is a personal injury lawsuit.

People hate personal injury lawyers.

I know that my client is suing

over an injury even though

she used drugs or is

overweight or yada, yada, yada.

You've talked to them,

you've really kind of framed your case

almost in a negative way during voir

dire. And then you get to damages

where you reveal, and by the way,

I'm asking for tens of millions of

dollars. If damages is delayed to the end,

it's all viewed in the context

of this is already a weak

case and you're asking

for a butt load of money.

So that's why we hold it to the end.

And it's sometimes hard to not mention

money till the end because it's such a

big part of the case.

You really have to sort of withhold that

so that you maximize the impact of it.

So this is really where

the hands start coming up,

especially with the fuzzy damages like

mental anguish or emotional distress,

as it's called in California.

So ask about all the elements of damages

and really emphasize the ones that some

people might view as frivolous,

like money going to an estate or money

going to someone who is dead. How could

that help someone?

Think of all the ways that people would

have an issue with the ways in which

you're asking for money and ask a

question about that specific topic.

Always lock it up with a nice

and tight cause question.

The phrase we like to use is regardless

of the evidence or court's instructions.

Ben, you've said that a zillion times

now and it sort of becomes redundant.

And after saying it a zillion times as

the bow that you're tying on each topic,

the goal is for the jury to

not get hung up on that phrase,

but for the judge and the court reporter

to hear it so that a hand raise is

sufficient to get someone off for cause.

I have to say it's

quite effective. I mean,

in the two juries we've picked together,

we had an awful lot of cause

challenges granted. In one,

we almost blew up the entire panel

and we're down to just the last half

dozen jurors before we concede a jury.

Yeah, for sure.

And you don't have to move for

cause on everyone who answered

affirmatively to a cause question.

I like to view jurors holistically.

A lot of times jurors who

think in a vacuum, for example,

there should be limits on the amount

of money awarded in a lawsuit.

They're not going to be the

worst juror in the world.

I kind of think that in a way, I would

be a great juror for a plaintiff,

but if that's the only bad

thing they said for you,

that person doesn't need to be ... I mean,

obviously I'd look at their

occupation and their background,

but if that's the only red flag,

you don't necessarily need

to move on them for cause.

A lot of people are worried about my

approach because it's, like you say,

everyone is going to be problematic.

If all it takes is a hand raise

to one of these questions,

we'll bust the panel real quick.

So what this enables you to do, I mean,

I have dozens of questions. Even in

my shorter 30 to 60 minute outlines,

there's at least 10

questions usually to ask.

And you get a holistic perspective of

each juror and this person raised their

hand to everything and here's the quotes

that I wrote down and these are the

actual words they used.

So you're not necessarily going to blow

up the panel just because you're asking

10 to 15 questions.

It just gives you more opportunities

to get to know these jurors better.

Sometimes you've got a great liability

case and you really just want to pick a

damages jury. So you prioritize those

questions even more because it's like,

"I'm not really worried

about liability on this one.

I just need to pick jurors who are

going to be open to awarding me lots of

money." So that would pick the jury a

little bit differently in that situation.

Can you just talk a little bit about

the logistics because I think a lot of

lawyers are intimidated there.

You're questioning sometimes

dozens of people at once.

You're having to assimilate all

that information in real time.

Then you have to have it in a

way that's easily accessible to

state your cause challenges at sidebar.

And often we do jury research

before we even get to the courtroom,

so you have to have access to

that additional information,

maybe their Facebook posts and all that.

I've found working with you simplifies

that in a way that's extremely valuable.

Can you just talk about how you do that?

Yeah. So that is a huge part of

what I do is not just all the

theory and strategy behind all of

this, but the actual execution.

Jaine and I do things differently.

Jaine does this on a piece of paper,

and I'm not a pen and paper kind of guy.

So I created an Excel spreadsheet

where I track hand raises to these

questions, call out juror numbers.

I know who raised their hands to

each of these cause questions.

You don't need to know

hand raises to everything.

You just track hand

raises to cause questions,

things that say regardless of the

evidence or court's instructions,

could not find in favor of someone in a

lawsuit who did drugs during pregnancy.

That is, you'd want to know

who raised their hands to that,

but you don't need to know who raised

their hands to an innocuous non-cause

question. The most important part and

the most cumbersome part is you want to

have someone on your team who is

typing down almost every word said

by each juror. And it's really hard

to organize because you're talking ...

I have a spreadsheet where every row

is a juror and every column is a topic.

And each cell,

I write down what that

juror said on that topic and

because we generally have some

time as the plaintiff to digest our

information before cause challenges,

i.e. During defense's voir dire,

I'm compiling those

responses and saying, "Okay,

here's what was said that seemed

like it met the threshold of a cause

challenge." And I provide a nice,

clean Word document on my iPad to the

attorneys so that what they are left with

is here's the jurors that we want

to move on for cause, here is why.

And the why is a combination of the

cause questions they raise their hands to

and the word for word

quotes that they stated

that demonstrate their bias.

And so that process is so much

easier said than done.

It's important to get those quotes down

word for word because you do not want to

ruin your credibility with the

judge by misquoting. Very often,

it's an opportunity to gain credibility

with the judge if your notes are more

accurate than the defendants.

So be understated about it.

There's an arts to arguing

cause challenges and sort of

getting an early edge with the judge as

the person who's taken the better notes,

who's trustworthy and who's not

embellishing just to get an advantage.

The organization part is not easy.

The best bet is to have someone on

your team whose one and only job is

taking notes and have them be

very familiar with what your

voir dire outline is going to be. So

they know what question comes next.

They can have their own system for keeping

track of all that. But your beautiful

outline and effort in the courtroom is

useless if you haven't aggregated the

information in a way that's useful

specifically for cause challenges.

And it happens so fast.

Sometimes defense will get

up there and they'll say,

"I don't really have

anything to say, Your Honor,

looking forward to a great case." I've

seen defense literally do nothing of voir

dire before, and that's the time where

I'm supposed to be organizing my ...

I don't exactly lean back in

my chair and take it easy,

but I do usually have a little

breathing room where I can organize my

information.

Sometimes you're caught off guard and

you're up for cause challenges minutes

after you finish your voir dire.

So that needs to happen quick.

There's a lot of back and forth sometimes.

I'll lean over to the attorney with

me at council table. I'll be like,

"I can't decide whether we should

move on this guy. What do you think?

I didn't like this, that and the other,

but he doesn't seem as bad

as them." If we leave him on,

then it prevents us from getting

to these worse people later on.

So there's some other

factors that go into,

should I move on this guy? It's

not just in a vacuum, is he bad?

It's also relative to who's coming

down the pipe. Like in Maine,

you have the 18-pack system where

I can't remember if you know the

order past the first 18.

Do you remember whether 19 through 80

are numbered or if they're random?

Yeah, right. I don't think you do know.

In California, you do.

And so your decision on whether to strike

this guy is always in the context of

who's replacing him and saving

strikes for this terrible run of

four to five jurors later on who I know

I'm going to get to if I move for cause.

So I got to save strikes.

There's that whole strike

strategy component as well,

which is totally separate from

the cause challenge strategy.

Yeah. I mean,

there's really a lot that can go

into doing it in an optimal way.

And I mean,

it's truly an art and a science

that there are better or worse ways

to do this process.

And if you're getting yourself to

court and you are taking a shot

at a trial,

you really ought to maximize the

decision maker pool that you have,

which is by picking the best jury you can.

And I've approached voir dire in different

ways over the years and followed some

different strategies,

but I find the one that

we've used together working

with you is the one I like

the most because there's a

logic to everything we're doing.

It flows in an organic

way that lends itself to

having a good conversation with the

jurors and it doesn't feel forced.

And it feels like every issue is important

and real. And so for that reason,

the judge I think doesn't ...

They tend to see what you're

doing and it is every question is

germane to the issue of whether these

jurors can be fair and impartial and are

appropriate for this specific

case. So there isn't any question.

You're not doing a, I have a dog,

you have a dog kind of thing.

You're focused on the case

and things that are important.

And there's an efficiency to it. I mean,

there can be a lined across

between having a conversation and

letting that conversation spew out

of control where you as the lawyer

have lost control now and it's just

the jurors talking about McDonald's Hot

Coffee case, which doesn't really

advance your cause very much over time.

And you've taught me how to reign that in,

get it back on task and move

from topic to topic efficiently

without making the jurors feel like you're

not listening to them or giving them

an opportunity to say their bit.

So it really works well. So Bo,

if folks want to find you to work

with you or Jaine, for that matter,

how do they reach out?

Our website is trialshrink.com,

like trial psychology,

trialshrink.com. That wasn't

already taken. No, I know, right?

Jaine got that in the 90s actually.

That was like a little marketing

idea she had that was cute. So yeah,

that's our website, but our email

addresses are just bo@trialshrink.com or

jaine@trialshrink.com.

We're not hard to find.

You can also just bombard Ben with

emails and he'll refer you to me.

And Bo is just B-O, B-E-A-U.

Well, thanks for joining us.

We have another case we're going to be

working on in the next few weeks and

really excited about that one.

The last one we did resulted in the

highest injury verdict in the history of

Maine. So we're doing

something right, I think.

Yeah, that was really fun. I'm looking

forward to the next one. But yeah,

getting that news about

that record setting verdict,

that was a highlight of my 2025 for

sure. It was a highlight of mine as well.

Well, thanks so much, Bo,

and it's great working together and

looking forward to the next one.

Thanks for coming on the pod.

My pleasure. Thank you guys for having me.

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