S4 Ep10 - A New Voir Dire Framework / Disputes Over Conclusions, Not Facts

[Music] You're listening to Mittnik's monthly brush strokes, a podcast on the art of outsmarting, the fun part that sets you apart. I'm Keith Mittnik, author of Don't Eat the Bruises. For more information visit KeithMittnik.com or email me it's [email protected]. Hello everybody. I'm gonna pick up where we left off last time. Last time I shared with you a brand new Vordire question to deal with this issue of the backbone of a person injury lawsuit in which jurors are supposed to be assessing full value for what was taken in the way with health and that some people just can't get behind that and don't buy it. They think it's a money grab and other people think it makes sense and they're gonna get behind. We shouldn't just let it go by the wayside. Even though the money for a permanent injury won't fix it we still ought to recognize it. So we covered that and in there I mentioned a fundamental part of that is we have to set it up with an analogy at the front end that will teach jurors in a snap of a finger lightning quick how subtle bias can have a profound impact in spite of the best effort to put it aside even though they're fair people and they intend to do the right thing it's just not that easy to set it aside. I'm gonna build that a quick I'm not gonna do the full blown version of how we do that I'm gonna do a very very abbreviated version here just because it fits into something that is brand new. So I'm gonna go back in time and give you a quick pion analogy in the midst of this new process and it's something I'm excited about because it dawned on me during this shutdown and where I've had more time to really sink in mentally on broad pictures instead of case specific issues because I haven't been having a trial a week because trials have been happening. In one of the revelations that I had on a beach walk was that you know we think of trials most people think of trials as being really a battle over facts and while there's certainly cases that are everything is disputed in the facts the vast majority of cases if you think about it really or more battles over conclusions from facts of which most of the facts are agreed upon. Even things like is it a permanent injury or not you can call that a fact or is it a herniation or a or just a sprained strain but those are really conclusions from the evidence from the fact that that's evidence but it is the facts that the their expert looks at versus what our treating doctor looks at in a car crash it's the same facts they're the same facts they're just opposite conclusions one of them very reliable and one of them not at all so really the vast majority of cases are battles over conclusions not facts so that I went wow that seems obvious but I hadn't thought about it which led me to thinking what a great way to undo one of the biggest ways defenciloyers or sometimes judges will try to undo valid challenges for cause that really ought to be granted because someone has expressed and acknowledged they have bias and you have tied it to your local case law and it's a rock solid challenge and you're not you know trying to run fair jurors off you trying to get a level playing field but some folks the other side wants done want a level that playing field they think they've got a right to bias jurors so I realize pointing out to the jury that this is really more of a battle over conclusions than a battle over facts was a great way for them to instantly understand how their leanings could have an impact it's not as simple as I'm gonna listen to the evidence and if you frame it right you can take away their favorite what we all call rehab I don't it's not really rehab it's try their effort to extract a statement on the record that'll allow a bias juror to stay on your juror so there's not a fair trial and what is their favorite thing they love to do they love to say well yes ma'am but I heard you say you have these feelings and because of that you got a leaning of the mind or you don't stand completely neutral or or you know in Florida they have a strike against and I heard all that but I want to make sure because I thought there might be some confusion and I'm not sure there was a clear understanding and the way mr. Metnik was asking those questions I just want to be sure because this is the ultimate question can you listen to the evidence yes and can you assure the court you can base your decision on the evidence in the law that he gives and follow the law and base your decision on evidence yes and can you be you know so you can bring back a fair jury fair verdict in spite of these things you were talking about and feelings everyone's got feelings about things that I didn't exclude you would that be right yes you know and then they say that said you could be fair base or decision on the evidence and you know in some jurisdictions that works and some it doesn't but you know depending on who the judge is and what time of day it is and whether you got to bring new jurors up you know you can get someone buying into what is really not rehab it's just gamesmanship to get a unfair advantage so I realized this concept that is new to me of it's more of a more of a battle over conclusions and evidence really really makes it hard to pull that one off and it helps the jurors so I want to run through it real quick and it goes something like this I'm now gonna convert the talking to the jury and I'm dealing with in advance early on when I'm asking my questions I'm already laying the groundwork for putting an end to this nonsense of somehow you're biased and hate these kind of cases don't trust them but you'll listen to the evidence and base your verdict on the evidence and that somehow makes it okay to leave mine I want to put that too bad so we're gonna start at the beginning goes like this most people think trials are about two sides arguing over the facts in may surprise you but most of the facts in this case aren't disputed so why do we need you because opposite conclusions can be reached from the same facts feelings people have against a particular kind of case or parts of it can impact their conclusions no matter how hard they try not to let it happen it's human nature some evidence may be given more or less weight because of those pre-existing feelings let me give an example in a criminal case this is not a criminal case but if it was in a criminal case a juror who doesn't trust the police may tend to believe them less than someone who doesn't feel that way even though the evidence would be exactly the same it'd be the same testimony it's the conclusion about believability that can be impacted or still and one more example in a criminal case if a juror had been a victim of an assault in the past in all honesty they may have a hard time not looking at the defendant through the lens of their own experience if the case was a criminal assault and battery trial it may just be asking too much for them to be completely fair and impartial under those circumstances even though they're going to base their decision on the evidence their conclusions may be very different because they may be impacted by those feelings or experiences does that make sense folks does anybody understand when I'm getting that okay let me give you a let me give you a simple analogy that doesn't involve the law and then I got some questions for you now I'm moving into the pie analogy and it goes like this if we were having a competition to see and by the way I was just talking to you I'm now I'm gonna do it like I didn't break to give you a little side talk back to the jury here's a simple analogy that doesn't involve the law if we are an a competition to see had the best pies and it was down to two pies and one of them was apple and one of them is cherry and I was randomly picked out of the audience to be the judge and it just so happens I'm not crazy about cherry pie does everyone agree the only right thing for me to do would be to reveal that to the contestants and let them decide what to do with it and everybody else say yes likewise does everyone agree that in addition to revealing it I need to be honest with myself and not sugar coat, the potential impact it might have on me in spite of my best effort to put aside. Not that I would take some wonderful succulent pie that was happened to be filled with cherry and a dried up sorry pie that was apple pie and I throw it over the filling, I wouldn't do that. But when it isn't so extreme and things get a little closer, when I bite into that cherry pie, my lip curls a little, I'm just wired that way. I can't assure folks I can put that aside. So does everyone agree not only with the right thing be to be to reveal it to the contestants, but also to be honest with myself and not sugar coat the potential impact it might have on me in spite of my best effort to put it aside. And they can all say yes. And then you just follow up briefly with, but if I were to say the contestants, I can't assure you I could be completely fair and impartial under the circumstances. I cannot assure you my decision to base solely on the evidence of the pies, 'cause my feelings about the pies may come into play on top of it. Would anyone think if I just said that honestly, the contestants that that would make me a dishonest or unfair person or a weak minded person and they're all gonna say no? And I say okay, because I'd be better off down to haul judge and chili, I pretty much like all the chili and they all chuckle. And you don't need to use chili and pies, you use whatever's the truth for you. I'm now talking to you again, but they get it. They instantly get, that's how subtle buys can have a profound unintentionally impact on the fairest minded strongest, minus person. And then you move into now this case, got nothing to do with anything as lighthearted as pies. This is about a personal injury lawsuit in a car crash or a med mal or a product liability or whatever it happens to be. And I need to ask you about it. Some people have feelings against personal injury type lawsuit whether it be philosophical, political, something to experience, something they read, something they heard, some distrust. They think they're bad for America, bad for a lot of reasons. For whatever reason they got a level of distrust, dislike some feelings against. How many of you? And then you come back and want to know because of those feelings, how many would say? And all honesty, I couldn't assure the court I could be completely fair and impartial. I'd do my best, but I cannot assure the court, I could put it aside and spite it my best efforts. Now you've established cause. Then you say, how many of the rest do you feel like that? You get more hands, you go to them and establish cause. And very quickly, lightning quick, you're getting a fair jury from a pool that had a bunch of folks that probably were gonna be ringers for the defense, even though they're good people. All right, that's that. But I want to come back now. I want to come back to this revelation about cases being more battles over conclusions than battles over facts. Because you follow up with the jury, I'm coming right back to the jury with this. After I've given the pie example, I roll right into this before going in to establishing cause on case-specific issues. This is the final wrap up to the pie thing that gets inserted in there. I finish the, you know, maybe I'm better off down the hall judge and chilly. I pretty much like all the chilly. Because folks, does everyone understand while the facts are the facts? My feelings about cherry pie and all honesty may come into play back to you, if it's a jurisdiction where may is not enough, then say, but my feelings about cherry pie and all honesty will come into play too. I would not ignore the facts, but facts are the beginning, not the end of the process. In my feelings against cherry pie are likely to impact my conclusion. I call it the evidence plus reality of how the human decision-making process works when there's conflicting evidence and one side's evidence starts out behind and the other one has a leg out. Because everyone understands. Yes, then I would say, okay, this case isn't about something as light-hearted as pie. Now. Now, I want to take that forward and give you a piece to protect against rehabilitation. You've laid that groundwork at the front end. They all understand this concept of evidence plus. Evidence plus meaning, of course, I'm not gonna stick my fingers in my ears and ignore the evidence. Of course, I'm gonna base my decision in part on the evidence, but it's gonna be evidence plus my feelings coming into play like a pie chart, maybe is 75% or 80% or 90% evidence, but there's gonna be a sliver where those feelings have an impact in addition to it because we're talking about a dispute over conclusions, not the facts. So with that background, they're ready for you to head rehabilitation off. So at the very end, I'm gonna show you how to deal with all of that to head off rehab. But before I do, we're gonna end this session 'cause I like to keep these things fairly short. We'll have a little suspense here. It also gets you to tune into the next one. I'm gonna roll into the next one is how you take all of that foundation and plop it into the last words you're gonna say to this jury before you sit down that is gonna frustrate the other side or anyone who is more concerned about keeping�� or not be there than a fair trial. So I'll see you next time. I can't wait to finish the circle on this. I promise it'll be worth tuning back in. Y'all have a good day. (upbeat music)