“Picking Justice”: A Trial Lawyer’s Guide to Picking Better Juries

Voice Over (: 00:02

Ready to take your verdicts and jury selection to the next level. Jury consultant, Harry Plotkin and trial lawyer Dan Kramer are your ticket to tipping the scales before trial begins. You're not just picking a jury, you're picking justice produced and powered by law pods.

Dan Kramer (: 00:21

All right, welcome to episode one of Picking Justice Harry Plotkin. Why are we doing this? What are we doing here?

Harry Plotkin (: 00:31

This is going to be fun, Dan. We're going to be teaching everything you could ever want to know in different approaches to jury selection because as you know, and you're an amazing trial lawyer, I work with you all the time. Jury selection is the hardest thing you can ever do in a trial. I mean, everything else you can kind of script out and what's coming, but jury selection is good luck scripting out what 50 strangers are going to say you to your face when you're trying to figure out who's good, who's bad.

Dan Kramer (: 00:56

Yeah, no, a hundred percent. I mean that's one of the biggest reasons I think we got behind this was as a young up and coming, as a current successful, wherever you are in your trial lawyer journey, I think one of the hardest things to do is pick a jury. And I think one of the hardest things to find was how to do it well, how to do it the right way, finding your own voice. And I remember I would scour the internet, YouTube, Spotify, anywhere and just be like, I just want the jury selection stuff. I want to hear how these trial lawyers do it. How do they ask questions? How do they ask for money? How do they get cause challenges? What do they do if a judge gives them 20 minutes? I was looking for all of these tips because like you said, you can't really script voir dire.

(: 01:42

You can have your plan, you can have your outline, your danger points and all that, but you are doing improv, right? I just went to a comedy show last weekend with my wife and it's one of the hardest skills I remember talking to her. That's one of the hardest skills to do is get up there and be a comic in front of people. I think one of the second hardest skills, if not harder, is picking a jury in a case where you're the plaintiff lawyer and they're already coming in not really liking your slip and fall case or whatever your case may be, and talking to them, being confident and really getting to know these people. So like you said, I think it's one of the hardest skills to do. So. I approach Harry, who I love to death. I will not pick a jury without him as a jury consultant just saying, look, we need to do a podcast that just focuses on how do you pick a jury. So that's why we're here and we're excited. Harry, tell us about some of the guests we already got lined up who are going to teach us their different approaches.

Harry Plotkin (: 02:41

Yeah, I mean we got probably more people, guests, great amazing trial lawyers from around the country signed up than we have time to film in the first year. But Aour, Gary Dordick, David d Robertas, ary sec, Natalie Weatherford who had three eight figure sex abuse verdicts last year. I mean list goes on and on. Yeah,

Dan Kramer (: 02:59

She was just Cal lawyer, trial lawyer of the year.

Harry Plotkin (: 03:02

Yeah, exactly. And the thing is I'm excited about is that I see a lot of mistakes get made in jury selection and you can't train each and every lawyer on all the little things that they're doing wrong, that conventional wisdom has kind of told them like this is the way you're supposed to do it. And a lot of times it's like the opposite. And so I think that's why we're here and hoping you guys tune in every episode so you can not only learn what you may have been taught that is wrong, but also some kind of crazy things that some of the guests that we're going to have on do totally differently that may blow your mind and change your approach. And we're not afraid to get into the nitty gritty. I mean, we may have an episode just on how to warm up your jury or we may have episodes just on how to explain bias to 'em or whatever it happens to be, how to get cause and the magic of words that you want to use. So stick with us and we're excited on this journey on training better, even better trial lawyers for the future to get some big verdicts for all of you.

Dan Kramer (: 03:53

And I think with a really effective, this is something I learned from you, Harry is a really effective, good quality jury selection. Maybe you have a tough venue or you hear it never gets good verdicts no matter what, but if you have a really good voir dire, a really solid voir dire, you can take away that defense benefit on maybe what's traditionally considered a bad venue when this air, we are in the political season right now, let's just say that or it's just ending. But one of the interesting things that I've talked to Harry about is conservative jurors. For example, traditionally I think plaintiff lawyers would be like, you don't want any on our jury, but we just had this talk I think a few days ago, Harry, on a case where you were talking about the way you look at conservative jurors now compared to the quote liberal jurors. What are you seeing out there?

Harry Plotkin (: 04:44

Right? You'd be shocked at how many lawyers think that only the kind of jurors that match their politics are good for them. Obviously that's not the case. I've seen terrible liberal jurors and terrible conservative jurors and amazing conservative jurors, amazing liberal jurors, and it kind of depends on the person. So I think one of the things is how do you figure out how do you go beyond the labels for jurors beyond their occupations and their politics a little bit and see what makes 'em tick and what pisses 'em off and what doesn't piss 'em off, what their expectations are? Because I'm a big proponent of teaching people don't ever judge a juror by their cover. Don't ever have a list. I mean, I'm sure you've heard this from Dan Lawyers who say, I would never keep this and this and this type of juror on a jury. I would never keep an engineer or I would never keep a nurse.

(: 05:27

I would never keep a lawyer. I always tell people, first of all, they're human beings first before their jobs or their politics or whatever, their demographics. And so you got to dig a lot deeper and find out what really matters. Because those things don't, at the end of the day, don't matter. You can have bad jurors of every kind or good jurors of every kind. You just got to find the exceptions to the rule. And that's what doing your job is all about. You can be lazy in jury selection and just sort of don't ask anything and make a lot of assumptions or you can really dig deep and not necessarily a lot of time and find out what jurors are all about.

Dan Kramer (: 05:58

So then I guess you as the consultant, do you ever, I guess, factor in the job or maybe even the way they're demographic, whether that's their race, their ethnicity, socioeconomic religion, that kind of stuff? I mean is that maybe a factor or small factor or no factor at all or what are your thoughts on considering that

Harry Plotkin (: 06:17

It's a factor? You think about it, if somebody comes in and they're an engineer, they're a CFO of a company and you're suing a company for maybe putting profits before people and you're like this juror, I mean profits is all what their job is all about for me. Don't ever make assumptions too quickly. You still want to treat them the same as the other jurors and find out how they feel about the core issues of the case because they could be amazing for you. And I found lately the last few years, I mean a lot of corporate jurors with corporate jobs tend to be pretty great in cases against companies. So you never want to assume anything, but you do keep it in mind. And what I always say is what, to the lawyer I'm working with, I don't want to go back there during a break and we're ready to pick the jury.

(: 06:55

And you say, I feel like we got to strike juror number three because I just worry that he's going to feel or she's going to feel this way. And you're like, why didn't you ask him that? Ask him. I mean, if you have an engineer and you're worried that they're going to need a higher amount of proof for something, it's a circumstantial evidence case. Ask him, how do you feel about making a decision without having a videotape of what happened or whatever it is? And if they tell you what your assumptions kind of told you they would think, then that's fine. But a lot of times they'll tell you, no, not at all. I mean, I'm an engineer, I got to make calls based on little information all the time. That's what it's all about. So never make assumptions, but I do kind of keep it in mind as a little bit of a filter, but I never make a final decision on that.

(: 07:31

And one of the ways that I do, and you probably see this all the time, Dan, is the defense is usually the defense lawyers are usually making stereotype assumptions. And so, okay, if this juror kind of fits what the defense thinks is good and they turn out to be, we kind of like them. Hey, that juror's going to make it on the jury if we keep 'em because there's no way they're going to strike 'em even if they say some good things for us. So that's one of the ways I like to keep it in mind and knowing who the defense is probably going to keep and strike.

Dan Kramer (: 07:55

Well, there's that old school, my first four years I worked at a insurance defense firm, great trial lawyers there, but they had the same method we still see to this day that honestly is also on the old school plaintiff side too. I mean, it's just that old school mentality that, like you said, you look at this person, what is their race? What do they do for a living? They're going to be good or bad for you or good or bad for the other side.

(: 08:18

And I think that's another, brings up another topic is that playing chess, if you know who your defense attorney is and that he or she is trained and will think that way, then you can almost bluff in a way that you really don't like that juror or whatnot. And then hopefully the defense either strikes or doesn't strike. And I mean there's a lot of different ways you can kind of play that game. It's not even a game, it's just the strategy of how defense attorney uses that old school thinking. I think you can use that to your advantage and how you choose or not to get cause challenge or strike.

Harry Plotkin (: 08:55

Yeah, it's kind of like we're playing chess and they're playing checkers when they're all locked in on some total stereotype of a juror and we're kind of assessing them on a higher level for sure. Because the funny thing is, I mean I used to work with defense years ago before I kind of did only plaintiff, and one thing I found is that they have these weird rules. This is always good and this kind a juror is always bad. I've heard I would never keep a postal worker on the defense side, but they want to strike every teacher or social worker. But the funny thing is, where did they get that? For me, it only comes from two places. Number one, it came from your mentor told you this rule and they probably got it from their mentor and it probably goes 70 years back, which is hilarious to think about that somebody's doing that.

(: 09:35

Or number two, it's like once I got burned by a nurse, so I'm never going to keep a nurse again. And you're like, really? I mean, yeah, there's good and bad jurors of every kind. I mean you can name any occupation. I can tell you, I could probably think in my memory of somebody who was just awful that I struck or somebody who was amazing that was the foreperson of a jury. So the sample size is just not enough and there's no such thing as some job where they're going to be a hundred percent bad for you all the time.

Dan Kramer (: 09:58

And I think anyone that's trying to sell you that bill of goods, they're leading you astray because, and this is something that really we try to build this podcast around, it's how to really get to know somebody on your, get to know them on the jury, ask the right questions, frame it the right way. So even if you only have 20 minutes that you can get to know them because you're labeling someone and doing quick stereotypical reads just based on demographics, like Harry's saying it's not going to work for your jury. In fact, I mean Harry helped me pick the jury in San Bernardino. Again, we were suing the county and my inclination was to strike all the county workers because that's their employer and they're not going to want eight figures against the employer, especially their taxpayers and all that. It was Harry and actually the judge as well when I was arguing super hard that hey, this is their employer, they're not going to want to hit a big verdict against their employers. I don't think you understand how government workers are and how they really feel that often about their employers. And sure enough, and I think you said something sort of similar, it's like even though that is an employer employee relationship, which I think should be cause, but it's not always the case we're talking about corporate employees don't necessarily always just want to back the corporation.

Harry Plotkin (: 11:14

Oh, a hundred percent. Yeah. And I remember that judge. It was funny. I mean it should be automatic that if one of your jurors works for the defendant that you're suing, they that's implied bias. Yeah, I remember our judge though, who was great in every other respect was like, oh, we would never get, if I excuse every county employee, we would never get a jury here. And we're like, it's three people, your honor. And I think two of them were telling us I couldn't do it. And one of us was like, I don't care. And that juror, I think we kept that one juror. We had to strike the other two and that juror was amazing and you got an amazing, amazing verdict that case.

Dan Kramer (: 11:46

Oh yeah, super amazing.

Harry Plotkin (: 11:48

Yeah,

Dan Kramer (: 11:48

Yeah. No, they were great. One other topic I wanted to bring up that I've learned or mistakes I used to make is really counting my stats on the cause challenges I get. And many of my colleagues, many of my close friends, great trial attorneys, they'd always talk about, oh, I picked a jury and I got 28 cause challenges. And I would brag about that stuff too. I'd be like, look, I must be crushing it on my cause challenges the way I'm asking it. I'm just locking these people in and it's just so proud of myself and I'm doing it so well because I've read all these books and I know how to get people off for cause and the more I get for cause the better my jury's going to be. And again, Harry and I were picking a jury and afterwards I thought I was doing a great job, he's going to high five me. And I was like, so wasn't that just great? We had gotten 14 or 15 cause challenges in a half day and he just starts shaking his head. He is like, I don't know man. He's like, I just feel like you really kind of undersold the case. You made it sound like it's not even a good case at all, but it was a good case, Harry, explain what your thinking was and how you were able to change my mind on the way I approach it now.

Harry Plotkin (: 12:54

Right? It's like one of those things where the ability to get cause challenges like a muscle, but you need to have it. I mean there's cases where you're going to need a lot of cause challenges because you may have a really tough issue. Your plaintiff was drunk or something like that and you're like, okay,

(: 13:08

Your plaintiff is on meth or something like that. But it's one of those things you see the guy at the gym who's got a huge right arm from doing just curls with his right arm and his left arm is puny. It's like I just see a lot of lawyers who would just like they're developing this cause muscle and neglecting the other parts for voir dire, which is just actually listening to your jurors and assessing your jurors and trying to figure out who's actually maybe okay for you. And so I remember in that case it was a pedestrian case, but sometimes there's, lawyers are so focused on what is it? If you're a hammer, everything's you see as a nail and let's just try to get everybody and make the case sound terrible. And you start to starts just kind snowball sometimes and you get even good jurors saying, I guess I can't be fair.

(: 13:51

It sounds like this pedestrian wasn't paying attention. And so if you're the lawyer there and you're like, in this case she was paying attention, she wasn't out of the crosswalk, but some lawyers are just thinking, Hey, if I just kind of don't correct this juror, I'm going to get more. Cause like, okay, tell me more about how you feel and you couldn't be fair and we're right behind and more and more jurors are hearing this, even your good jurors. And they're going, wait a minute, if Dan is not addressing that, it sounds like he's kind of agreeing that this pedestrian wasn't in the crosswalk and wasn't paying any attention and maybe they were on their iPhone or earbuds are in or whatever. And you start just to lose good jurors. And so it's a snowball. And so you don't want to do that. You don't want to be like, I can get more. Cause I think that's one of the things that judges hate too when they kind of see you abusing the case and not showing the full picture of a case just to get more. Cause

Dan Kramer (: 14:35

They do. I've heard judges and I love great judge and we had a really good relationship, but I think he was like, well, you really kind of poisoned the room here a little bit with how I was framing it. These kind of things that you learn from and you grow. And it's definitely, I've kind of changed the way I frame stuff now with the way Harry, you've kind of showed me how in mini opening even, how are you telling your trial lawyers to frame those or weave those bad facts into the mini opening as opposed to telling all the bad facts? And what's your philosophy on that?

Harry Plotkin (: 15:08

Right. I mean we can spend an hour on that alone, but yeah, the mini openings is like we

Dan Kramer (: 15:11

Will, we

Harry Plotkin (: 15:12

Will. Oh yeah, for sure. But kind of in a nutshell, you want to share your bad facts but also promise that there's going to be good facts without actually telling 'em what your good facts are. You want to basically get in a position where at the end of your mini opening all the really, really badge juror are telling you, I don't need to hear anything more. I don't care what the rest of your evidence is. This plaintiff's at fault, he did something stupid. And all your good jurors are like, I don't know if this case is a good case or a terrible case. You didn't really tell me. You told me. Instead of saying all the good things, instead of saying the defendant driver was distracted and the defendant driver could have seen the pedestrian for three blocks or something like that, you're just saying we're going to share with you what the driver was doing, the defendant driver and what their vision was like and what they could or couldn't have seen.

(: 15:55

And so they're just like, what are those things? But your good jurors are like, I need to hear more. And your bad jurors are like, I'm out. This is over. But if you start to lose some of your jurors based on misconceptions, you definitely want to push back. I'm a big proponent of frame it your case kind of a good way so that when jurors are telling you they don't like your case, they're really bad. You're not just tricking them. So I'll give you a funny example that I did a couple of years ago. It was like a premises case where this guy was working out at a park in a city and something felt like that was poorly maintained, like a sprinkler that was up on a pole that fell on his head and we did the mini opening and then some of the jurors kind of misunderstood it.

(: 16:33

The defense came up in their mini opening and said he was standing where he shouldn't have been standing. He was off the path. The truth was he was totally, it was part of the park. He wasn't in some restricted area, but some of the jurors were like, Hey, I feel like this plaintiff shouldn't have been there. It shouldn't have been where he was standing. He was told not to. And rather than push back and say, well that's kind of disputed, I mean can you decide that for yourselves? The lawyer was like, Hey, I understand why you feel that way so you can't be fair to us. And more and more jurors, you just see him in the back going, holy crap, sounds like this plaintiff lawyer is telling us all that that's a fact and this case stinks, which was not true at all. So you definitely want to be sensitive to if your jurors are getting a misunderstanding and don't just say, Hey great, awesome, this is a perfect opportunity to get more cause don't get more cause than you need. Don't, don't run off good people for cause just because you can trick 'em. So you really want to be sparing on your cause. For sure.

Dan Kramer (: 17:24

Lemme just dig into that a little bit then. So a juror has a misconception of fact, right? And they're basically saying something that is in dispute, but they're saying it as from the defense perspective, maybe the defendant argued it or you didn't argue the good stuff. So a juror then comes back and says, well, if your plaintiff was doing this, there's no way I could be fair. You're saying in direct response to that say, well, but do you know if that's true or not? What's your direct response to that to when the jurors just like, well I can't.

Harry Plotkin (: 17:56

Yeah, let's take the night trial that we did together a couple years ago where it was a pedestrian and everything and so

Dan Kramer (: 18:01

Sorry, that was the name of the case. It wasn't done at night. Just want to be clear.

Harry Plotkin (: 18:05

No, no, it wasn't night court. Yeah, it what a great show though. Wow.

Dan Kramer (: 18:09

Yeah, that would be,

Harry Plotkin (: 18:10

Anyway. So let's say your pedestrian really was outside of the crosswalk and the defense brings that up, then you use it, then you're like, okay, so I mean does it not matter? Are you telling me that if my plaintiff wasn't in the crosswalk, does it matter what the defendant was doing? The plaintiff has all the faults or most of the faults or something like that and then you can go with it and get that. Cause if it's disputed, if you think you're going to show that they were in the crosswalk and the defendant is saying otherwise your plaintiff was at fault they weren't in the crosswalk, you definitely say, well, I mean that's disputed in this case. So what I really want to know is does the evidence matter to you?

Dan Kramer (: 18:41

Yeah. Okay,

Harry Plotkin (: 18:42

Because tell me, I mean brutal honesty, if it doesn't make a difference to you, if you think this plaintiff is responsible for no matter if they're in or out, so bad jurors will say, yeah, they should have been paying more attention. Doesn't matter if they're in the crosswalk, then you can get 'em for cause. But if they're a good juror, they're going to be like, no, it does matter. I mean, I'd want to hear more. And if you feel like you can convince 'em, then don't run 'em off for cause just because the defense tried to sneak one in there. And

Dan Kramer (: 19:06

Yeah, I think this is a perfect example of the way I used to do it. And I know many attorneys would do, like you said, they would hear the juror say, look, I can't be fair if your person's not paying attention where they're going or not on the crosswalk because they've heard the defense argue their many opening, which in California judges required to give us a short up to three minute mini opening. I know a lot of states, but we always push for 'em. But yeah, so going back to that scenario is yeah, I think back in the day I would've just gone right immediately. So you can't be fair no matter what, you're already we're starting behind all that stuff, but I probably could lose a really good juror there who may be very good on damages or really angry at the defense when they hear all the facts come out. I think that's a great point.

Harry Plotkin (: 19:49

Yeah. And Dan, in fairness to you, I was the same way. I mean before early in my evolution as a jury consultant when I was kind of learning from other people making mistakes and everything, my philosophy was probably definitely make it as negative as possible and frame everything in the most negative way so that if anybody's even remotely against you, then just get rid of 'em. You want to get rid of 'em. But I found not only is that kind of filters down to all your jurors too, but also why are we getting rid of a juror that really at the end of the day would probably be great for you just because if you kind of make it sound weak and you kind of mislead them a little bit, they tell you that they don't like your case. But yeah, no, I used to be all about present it in the most negative way possible before opening statement and jury selection and mini opening and call it emotional distress when you could call it something else a little bit better and make your plaintiff sound like a whiner and don't really talk even mention any the good facts or even allude to 'em.

(: 20:40

So I definitely was that way before, but I think that more and more, one of the things we're going to teach is how do you stay positive and you kind of ride that line between don't oversell your case, but don't drastically undersell your case either.

Dan Kramer (: 20:54

So what are the good facts that you don't want coming out? Then what are the good stuff that you're worried will expose all the good jurors? What's the stuff that you'll tell the attorney, Hey, keep that in the back pocket until your opening statement.

Harry Plotkin (: 21:08

Honestly, a mini opening, it's pretty much everything to be honest with you. It's like any good fact other than what you would have to say for them to even have a basic understanding of the case. If it's a car crash and they got hurt and you got to say there was a car crash and they got hurt, but other than that, man, I'm like, don't even tell 'em the extent of the injuries even if they're serious. You don't need to in a mini opening before jury selection. I mean you'll get there in your opening

Dan Kramer (: 21:32

Instead of brain injury. Say they had a head injury, they hit their head, something like that or would you talk about it?

Harry Plotkin (: 21:38

Yeah, if it's disputed, I would say, Hey, we allege that there's a brain injury and the defense is going to tell you that there isn't and you're going to hear about from all the doctors and everything. But if it's something like a fact, I wouldn't mention this person had a brain bleed at the hospital and they had to drain the blood from their skull. I mean even that is, you probably just convinced some of the jurors that this is a legitimate brain injury and they're going to tell you. So for me it's get out all your bad facts, don't mention a single one of your good facts, but replace all those good facts with sort of a weird promise. Instead of saying that you're going to hear what the doctors at the hospital found with the brain. So instead of saying that there was a brain bleed or instead of saying the defendant was speeding and ran a red light, you're going to be like, you're going to hear what the defendant driver was doing and if they followed it or didn't follow the rules of the road.

(: 22:24

So just take out all those bad facts and replace it with this promise. You're going to hear all the facts. So the jurors are kind of focused on what's important and they're kind of curious about it so that when you give your opening, they're like, you good jurors are like, holy shit, this case is a lot better than I thought it was. You see these eyes pop and David deer bird is a big, every time we pick a jury, he always says this. He's like, man, all their jaws dropped and their eyes went wide. And they were like, I had no idea. And then that's when you really got 'em when you undersell it a little

Dan Kramer (: 22:53

Bit. Yeah. So I just want to make sure we're clear here. We talk about we got too many or there was a lot of excitement or pressure to get as many causes as possible. We're not saying don't introduce or talk about your bad facts because the bad facts you have to still do. I just want to make sure we're clear on that, that you have to at least in the mini opening and if you don't have a mini opening during jury selection, talk about the bad things in your case. But that doesn't necessarily mean the next step is to get as many cause as you can. You just kind of throw it back at them like, boy, are you open to the idea that this is a very serious injury worth millions of dollars or something like that, right? Is that kind of what you're saying?

Harry Plotkin (: 23:36

Yeah, exactly. I mean, if there's a bad fact that you're just thinking that's going to be a deal breaker, I would vo dire on that. Who feels like this is a deal breaker? Who feels like the classic my plaintiff was on, had two beers that night at dinner who feels like that's a deal breaker no matter what the defendant did, this plaintiff is at fault for this crash and it doesn't matter. But a lot of your grid judge will be like, well, it doesn't not matter. And you're not asking them who's going to just totally disregard that? Of course they're not going to disregard it. Who's got feelings, such strong feelings about drinking and driving? It's going to totally cloud your judgment of what both sides did in the case. I think that's kind of where you want to go with it. But there are probably some things in your case that will be deal breakers that you definitely got on voir dire on. And I'm not saying there aren't some cases where you shouldn't be trying to get as much cause as you can,

Dan Kramer (: 24:23

As

Harry Plotkin (: 24:23

Long as you're always saying there's all this other stuff you're going to hear about. And you can even sort of without telling 'em the facts, kind of tell 'em what it's about. There's all these other facts about what the defendant did and what they knew and what this company knew about how well-trained they were or about any other issues. Are you telling me that, Hey, I don't care what I hear about that I already decided the plaintiff's fault no matter what that other evidence is. And some jurors will say, yeah, and those are the jurors you really want

Dan Kramer (: 24:46

Off. I also think the important thing is make sure they're a cause juror. Make sure they're truly biased against your case before you kick 'em off, make sure they're a bad juror for you. And again, if you're too quick to go down the cause path and you haven't explored it enough. And that's another point is that a juror may say this thing about the crosswalk, the hypothetical we're using. I think if that's one of the first jurors you talk to and you have the time to do it, even if they are a juror you would imagine going for, cause I don't think you try to do the cause there. I think you take that juror, bounce it off other jurors who else sort of agrees with this or feels this way to any degree, and then find out who else is and then bounce back to that person again.

(: 25:30

And then maybe on damages or whatever. And then you may get, maybe they are a really bad juror, maybe you have some other ways to get caused and maybe the crosswalk thing may be one of them. But I think like you said, I'd see too many lawyers, I used to be one of them who make the mistake of going in for the kill too quick too early without really getting to know the person or allowing that person to be the bounce board, I guess you could say, refer the other jurors to bounce off the questions with. What do you think?

Harry Plotkin (: 25:57

I mean, that's a great point that you do it. I mean, because Anne, one of the things that you're so great about in dire is showing the jurors that you're listening. I mean, you're not doing a ton of talking at them, you're listening to them and you're showing them that you're engaged with what they have to say and that's what jurors like to hear. I mean, they don't want, if they see a lawyer pounce on the first person that talks and get grilled and you can't be fair. Right? Would you want to talk if that's what I signed up for this interrogation session? So you're right. I mean that should probably come a little bit later, but you're right. I mean assessing them first. I mean, I've seen a lot of lawyers ass about an experience who here has ever been sued for a car crash before? And someone's like, oh, one time that happened to me. And then they just jump right into, so does that mean you can't be, are we behind? And the jurors are like, what? Oh, I'm sorry. I was wrong about that. Make sure that they talk to 'em first and listen to 'em first and only when they really tell you I don't like lawsuits. That for sure.

Dan Kramer (: 26:58

Yeah, I mean the whole thing with listening, I'm sure we'll spend a lot of time with, I mean, that's still something I struggle with. I've gotten better. I've had to force myself. But I mean I used to be even a few years ago, I would be listening, but thinking of my next question and be like, oh shit, they're going to go here, so I have to go there and then thinking about the script or whatever. But it's just like I would think too much about where's my next question? What is the next wording I'm going to use? And then they would say something and I'd just be like, okay, thanks. And just move on. It takes a lot of work and I still struggle with it. I still have to really get myself to be present in the moment. We do a ton of focus groups in the last two years, I really made it a point in our office to do as many focus groups as we can on every case.

Harry Plotkin (: 27:44

And you do focus groups where you're doing the voir dire, right, Dan? I mean, it's not just like a focus group. Here's the case. Yeah.

Dan Kramer (: 27:49

The requirement in my office is that every time we get a group of people here, and we're doing probably five a month now in a heavy trial month more so we have people, we do 'em ourselves. I know you guys are pretty busy now, but we recruit the jurors, they come to our conference room and we just run 'em ourselves. And Harry and Claire Plotkin have a great focus group company too. They're fantastic. But the requirement is not only just to learn about the fact how a jury analyzes your case, but to me as a trial lawyer, every time you have the opportunity to practice your voir dire, we a hundred percent do it. And every one in my office does it. The attorneys do because that's the hardest skill to learn. And anything else, being in front of a juror is like batting practice, right?

(: 28:35

The more reps you get in, the easier it is, the more you're able to work on your active listening, because that's one of the most important skills in jury selection and it's hard to practice day to day. We all should be doing it. My wife would wish I did it better and more, but in front of an actual focus group in front of jurors, you can really practice it. You can see how you respond to things, deal with bombs they throw at you and how you can pivot to it. So I highly recommend it. If you can ever get captive group of people and do your own focus groups, don't just do that case practice your voir dire. Super important.

Harry Plotkin (: 29:11

Oh, for sure. Yeah. Dan, should we talk about some of our sponsors and

Dan Kramer (: 29:16

Yeah, absolutely. Let's talk about,

Harry Plotkin (: 29:18

Yeah, I know our first one, I know we talked about, I was picking a jury a bunch of years ago, this little town called Truckee, near Lake Tahoe. And I'm getting there. I'm at this little hotel and I'm like getting on the elevator and this little town and I'm wearing a suit and I'm feeling awkward. Anytime you're in some little Hampton Inn or something in a small town and you're wearing a suit, you feel a little awkward or whatever. And so the elevator stops and this woman with also wearing a suit comes on and we look at each other and we're like, are you going to trial? And it was a court reporter, Cameron. And so that's one of our awesome sponsors. kw,

Dan Kramer (: 29:50

Yeah, KW court reporting. They're great friends. They have a great court reporting company. I literally, every single one of my trials now, it's automatic KW does it. Their reporters are great. They are super easy to work with, getting you real time, getting you daily transcripts, finals, roughs, anything you need, which in trial transcripts are extremely important. And having a good court reporter that doesn't interrupt you or tell you to slow down. Sometimes I talk too fast and sometimes they have to tell me that, but it's just a great company to work with. I have not gone to trial without them doing my whole trial in probably five or six years at least. And I won't go to trial without KW court reporting. It's a certified women minority owned business, considered some of the leaders in the industry is sort of famous now, I think. Harry?

Harry Plotkin (: 30:46

Yeah. Oh, because of Cameron. One of her cool court reporting gigs on, is it Judge Judy or Justice Judy now? Is that the name of the show?

Dan Kramer (: 30:54

I should have done that research before I gave their plug, but it's one of those, it's Judy. Everyone knows Judy and she's a judge.

Harry Plotkin (: 31:00

Judge Judy.

Dan Kramer (: 31:01

Yeah. Yeah.

Harry Plotkin (: 31:02

I mean, of all the court reporters in the country, who did Judge Judy pick to be her court reporter on air winning Emmys every year? Now, how many court reporters do you know who've won multiple Emmy awards?

Dan Kramer (: 31:11

Exactly.

Harry Plotkin (: 31:12

It's Cameron and Whitney,

Dan Kramer (: 31:13

One of the first people we called to sponsor this show. So KW court reporting, I highly recommend I personally use them. The other sponsor we want to thank is Tory Owens structured settlement. Tory's a great friend of the plaintiff's bar. He's another good friend of mine, is just always available if you need to do a structured settlement for your clients. He makes it very easy. I was just texting with him today about, I'm going to mediation tomorrow on a high value case, and he just makes it easy for me, really puts the client at ease when it comes to the long-term investing they need and tax savings and just really any structure they have. He's a great guy, very approachable, like I said, very easy to get ahold of, which is important when it comes to structure settlement. People text anytime. He's great dealing with the clients so that you don't have to deal with it, which is, it's hard to explain sometimes. It's hard for me to understand everything they're doing, but he makes it seamless. So thanks Tory Owens structured settlements for sponsoring.

Harry Plotkin (: 32:15

And you have Tory's cell phone, right? I do. I mean that's the thing about people like Tory and companies that work with trial lawyers. Plaintiff trial lawyers, man, I mean, you got to be available 24 7 if you're working with trial lawyers. And so yeah, I know KW Cameron and Whitney and Tori are like that. Our third sponsor, last but not least, Kelly Deutsch at verdict videos is the same way. She's been working with plaintiff trial lawyers for years. They do incredible videos. They do not just day in life videos for which I've seen bring tears to juror's eyes in real trials and focus groups, but also they do settlement videos for mediation, which are super effective at sending to the defense and to mediators and getting these cases settled, even pre-lit or early on before trial. But I remember one time recently, my wife Claire, who's also a jury consultant, for those of you who don't know Claire, but she actually focus grouped a case where they had done a day in the life video for this case, and they actually showed it to the jury. They actually did the case. They talked to the jurors and got how much damages. Then they showed 'em the video and they came back with tens of million dollars more after watching that video.

Dan Kramer (: 33:13

This the day in the life video they showed after the lawyers did the focus group.

Harry Plotkin (: 33:16

Yeah, exactly. And they were like, does anyone want to change at all? Does that change? And they were like, all the jurors were like, yeah, add, I want to take it from 7 million to 17 watching that video. I mean, that's how powerful they are. And so I know one of the things Kelly always tells me is that they really like to be honest with trial lawyers about whether they can help or not. I know there's cases where she said, I don't think this will help you. So I mean, she's like me. I do the same thing sometimes If I feel like I can't help, I'm not going to be like, okay, I'll take your money, whatever. I know she said, her motto is video can hurt you as much as it can help you. So she's always another one who call Kelly at verdict videos and see if she can help. And a lot of times they really can. They're powerful videos. Do you sometimes do settlement doc videos? Yeah.

Dan Kramer (: 33:56

Yeah. She's fantastic. I mean, she knows how to tell a story through that medium, which I think nowadays jurors sort of expect frankly, and it does really increase the value. She's such a warm, kind person. And I've seen her where she talks about a case that she just filmed and she'll start tearing up because she really cares about what they've gone through. And someone that's like that knows how to tell a good story because she feels that she's such an empathetic person. Another shout out to Kelly is she's always a huge supporter of Los Angeles Trial Lawyers Charities, L-A-T-L-C, which is made up of plaintiff trial lawyers. Great organization. I was fortunate to be past president a few years ago, but she's a huge supporter of that organization and many others. So kw, Tory Owens verdict videos. Thank you so much and please use them. We use them. I'm in my office, so yeah, cannot thank them enough. And I just want to give a major shout out to Robert from Law Pods. They have been fantastic to work with. This is my first podcast, Harry, I don't know if you're a big podcast guy, but they've been fantastic. Really appreciate the people at Law Pods making it easy for us busy trial lawyers to put something like this together that hopefully helps you all learn. So thank you.

Harry Plotkin (: 35:13

So Dan, let me ask you, what is something, I mean, we're going to be talking a lot during these podcasts with guests about something that's kind of changed in their approach. Something that they in jury selection that they used to do one way and then all of a sudden they do it totally differently than they did it five or 10 years ago or whatever, or things that they do totally differently than everybody else does. Everybody else is talking about burden of proof and I'm something totally the opposite. What for you is something that has changed your approach in jury selection in the last three years or five years?

Dan Kramer (: 35:45

Yeah, I'd say the biggest thing that I got from you and that I really like is how to frame non-economic damages and the value of them in the way I ask the question. And it really centers around the phrasing and the terminology that I've used through your advice is don't call it pain and suffering or anything like that. You frame it around the loss of quality of life and what is the value of someone's loss, of the quality of their life. And I think that it's very important for multiple reasons because one, and Harry, you can correct me if I'm wrong, but when jurors hear the pain and suffering and all that, I think that the tort reform industry, insurance companies have done such a good job of saying pain and suffering. That's ridiculous. It's bullshit. Millions of dollars for aches and pains or whatever, just pain and suffering.

(: 36:36

The phrase has just become so synonymous with greedy slip and jimmy type plaintiff. And so I think by framing it as a loss of quality of life, and when you get pushback, it's not really a cause challenge or a strike question the way you frame it. I think it's more of getting them to understand that there's nothing more valuable than the loss of quality of life. And the way we kind of approach that, and you almost toss it back to the jurors that may have trouble with it or trouble. You think they could be good jurors, you think that they have the capacity to award a significant amount of money in the millions of dollars or whatever your aim is. But they're very hesitant about money for that. They don't understand it. Most people don't, frankly, and they don't understand how they could do it.

(: 37:27

And so when they're a little hesitant on them and they're not someone you really want to attack for cause you just kind of throw, well, let me ask you, do you think there's anything more valuable than the loss of quality of life? And they always pause and almost every time they'll say no. Or if one does kind of hesitate, or even if one that maybe decent is like, do you think loss of quality of life could be worth more than a lifetime of paychecks or a mansion, a yacht or any material thing we could own? And then so you get that discussion going, which is all this stuff I've gotten straight from you, Harry, which is just great. But that's, I've really changed that because I think before I would approach, you hear millions of dollars for pain and suffering, and that rubs a lot of people the wrong way.

(: 38:10

Does that rub anyone here the wrong way? And I still may do that sometimes in a different way, but I think that would be sort of the way I would introduce the subject. And honestly, sometimes doing it that way, you honestly may be misled by some good jurors who will say another example in that pedestrian case, we had a juror who was a preschool teacher. I was kind of asked the question more aggressively on caps or millions of dollars. Who thinks that's ridiculous? My uncle, I don't know, thinks that's ridiculous. Anyone else agree with my uncle that millions of dollars for pain and suffering is ridiculous? Does anyone have a cap? And she was just a sweet mom of young kids and a preschool teacher. She's like, yeah, I don't know. I think I may have a cap. And I was like, oh, really? What's your cap?

(: 38:54

And she says, I don't know. I think one to 2 million would probably be my cap. So in that moment, I think we were heading into a break, but in that moment, my instincts, if Harry hadn't been there, I would've gone for cause on her. It's just like no matter what the evidence shows, blah, blah, blah, you cannot go above $2 million. That's your cap no matter what the evidence shows. And you didn't just try to get, cause this judge was giving cause like candy, so probably would've gotten it. But we had a break or we broke for lunch before I really had a chance to follow up. And I was like, Harry, we got to get rid of her. She's got a cap at 2 million. Do you remember what your advice to me then at all?

Harry Plotkin (: 39:32

Oh yeah, I do.

Dan Kramer (: 39:33

Yeah, yeah. Well, tell us what you told me.

Harry Plotkin (: 39:35

Yeah, I remember saying like, oh no, that one we're not going asking for cause we're not going to make a cause

Dan Kramer (: 39:38

Like whatcha talking about

Harry Plotkin (: 39:42

Because I've seen it before. I mean, a lot of assessing jurors is really listening closely to what they really mean and how they say it and everything. And so that to me was very different from a juror who's like, no, I mean millions is ridiculous. And that's like lottery money and they are super firm about it. Most jurors though, have never spent even one minute thinking about non-economic damages and why and all that kind of thing, quality of life and what it's worth for even one second before they come in that courtroom. And then you ask 'em a question and they're like, oh, I don't know. And they're just giving you, I mean, they're talking out of their ass a little bit. They don't know. And I could tell with that woman, she was great on pedestrian safety. She was great about caring about other people, all that stuff.

(: 40:24

And so when she was doing this, I just remember she was just kind a trying her best. I don't know. I guess there would be a cap and I guess how much would a cap be? And I guess 2 million, you could just tell it hadn't occurred to her. But anyway, and I see that from time to time. I mean, it's a tough question for jurors to answer, but you kind of have to note the difference between someone who's super firm and kind of angry about it versus somebody who's just kind of guessing for you and taking all those other things into account. What she's like, because Dan, I mean, remember she was on our jury, right?

Dan Kramer (: 40:54

Oh, she won to award the most. She won to award 25 million. It was crazy. She was by far the best juror on damages. And I think another thing you said is that, look, if her cap has just kind of went from a million to 2 million real quick in her head, she's already thinking in the millions of dollars as kind of a cap. And I think one of the biggest points that I really want to underline is that you said, Harry, it's really how the person says it and their body language. And they respond to those types of questions on when it comes to millions of dollars. I mean, the case we tried in San Mateo recently, there were some jurors who were CEOs of engineering corporations. You could just tell they were just very 5 million in our actuary tables is for a life of a motorcyclist. Absolutely not. You just tell just the tone, their mannerism to everything, all the stuff that you pick up on. And I think she was definitely one of those who was just like, I don't know. I am struggling with, I don't know. I never thought about it, which is really important advice.

Harry Plotkin (: 41:50

I recently had a jury in Fresno. It was probably the only time I've ever seen them not really act really well to was quality of life important? And I don't know. And two of them were like you were describing the cfo, there was one guy who was like, what do you mean what you even mean by quality of life? It's like, wow, okay. Because usually you get a pretty warm reception from that question. But for me, and this is something that we'll teach, I'm sure in other episodes, but what does it mean when a juror kind of dodges a question or throws it back at you? How do you figure out when a juror is not being totally honest with you? Yeah, how can you tell when they're withholding or they're not telling you the full truth? Because one of the worries I think a lot of lawyers have is like, how do you tell when a juror is lying to you and trying to get on the jury? I mean, I don't think they intentionally do it very often, but it happens all the time that they withhold for sure. And so, yeah, context and how they say it and their tone is a huge part of it. So yeah, I mean, you can tell the difference between someone who's pissed off at someone who's confused.

Dan Kramer (: 42:46

That's definitely something I want to explore with some of these trial lawyers that we got coming up. And I do want to drill down into the philosophy behind loss of quality of life first, pain and suffering, and why those words matter and how they matter frankly, when you get into your case and how you use that as a term, because that loss of quality of life, if you really internalize it yourself, there really is nothing more valuable than quality of life to yourself, to your family. And then that has to translate throughout how your theme of the case is. You'd be surprised when I started using it, I started getting more and more jurors after the verdict came in and they talked to us. They would just constantly say, throw that out there. The quality of life was really bad, or the quality of life really changed or lost the quality of life. Or if it wasn't a huge verdict or not even a great verdict, they may say the quality of life didn't really change that much. But regardless, I think you got to get them thinking in those terms in away from the pain and suffering terminology that you used to use in jury selection.

Harry Plotkin (: 43:48

And that's a big difference between conservative jurors and other jurors. I mean, if you try case in some super bougie downtown LA or Santa Monica or something where Cosmopolitan in place, you may get away with talking about pain and suffering. They may say, I know pain and suffering is serious, but you talk to conservative jurors and rural jurors and things like that. And you ask 'em, how do you feel about emotional distress? And they go, oh my God, they

(: 44:12

Gag or something. And you talk pain and suffering, and they go millions for pain and suffering is kind of ridiculous. But then you say, what about quality of life? And they, it's the same thing, but they go, oh, nothing's more important than quality of life. And when you talk to 'em about it in jury selection, they'll come up with, they'll keep redefining it for you. I mean, they'll throw things in there that you probably haven't thought of. Sometimes it's like a free focus group. It's like, I remember one juror saying to me, quality of life is just not having to worry about stuff. That's huge. And when you're always worrying about your health or paying your medical bills or things like that, I mean, that's quality of life. Even without an injury, whatever.

Dan Kramer (: 44:46

Or I've gotten a good night's sleep, I just want to be rested. That's quality of life for me. And then I think that's a hundred percent true, because you're going to use a lot of answers. And then if they apply to your plaintiff, those are going to be in your closing arguments when you're breaking down the damages you're going to ask for. Right? Because your plaintiff lost a lot of the stuff that they can consider to be important for someone's quality of life.

Harry Plotkin (: 45:08

Oh, for sure. Yeah.

Dan Kramer (: 45:09

Yeah. And we're going to drill down on all this in the episodes to come about how do you deal with a billionaire's quality of life worth more than the minimum wage janitor? How do you get a jury in jury selection? There's ways to ask that question about how is someone's pain worth more or less, depending on how much they earn or what their paycheck is. We're going to drill into all that stuff, the ways, the different phrasing that attorneys use, the way all these, because great trial lawyers we're going to talk to, they all have very unique ways. They do it from each other. I mean, Harry, you know more I, you've probably picked over a thousand plus jurors in your career. You see 'em more than anyone else, and there's certain things that work and don't, but there's also an art to it, right? There's also a way that it's not just formulaic or a science. There's an art to doing a quality jury selection, wouldn't you say?

Harry Plotkin (: 46:01

100%. Yeah. It can't be a formula. I mean, just the fact that jurors that don't have a script alone is enough to tell you that you're never going to be able to stick to a script, even if you have a script. So you got to listen to 'em. But I mean, there's so many different ways. There's no one right way to pick a jury, but how do you mix in, depending on the facts of your case? How do you mix in preconditioning and getting jurors for cause and listening to your other jurors and framing and talking about all these, introducing all different concepts, especially if you have a judge who's strict on time or strict on what you can talk about. How do you get creative if a judge shuts you down on certain things? I mean, I've had judges who will not let you talk about dollar figures, don't know specifics, can't even say millions.

(: 46:40

I've had judges who have said, I had one, I remember one or two that said, you can't talk about anything that has to do with the facts of the case. Meaning if it's a case that involved a motorcycle helmet, we couldn't ask, do you drive a motorcycle or do you wear a helmet? No. That's going to be an effective issue in this case, so you can't even, we're like, what? So how do you roll with the punches when you have a judge that's taking stuff out of your arsenal? The truth is you've got to have a bunch of different tools and things to do. That's what I'm so excited about, is getting some of the best trial lawyers in the country, sharing some real specific things that they do differently so that you don't have to go around the country watching jury selections in every state. So you know the best ways to do things and the newest ways to do things.

Dan Kramer (: 47:20

Yeah, I mean, I think that's the biggest thing we're trying to really help other attorneys out with this podcast is just be ready for any scenario. And because so many people have had to deal with it, Harry's seen every which way possible, and you're going to be faced with it, you're going to be faced with judges that are like that. You're going to be faced with a defense attorney who's constantly objecting jury selection. You're going to deal with jurors who hate your case, even if you, no matter what you could do, there's angry jurors, there's outspoken jurors, and it's something we all deal with. And there's a lot of comfort in that, knowing that all these attorneys that we're going to speak with and so many out there have had to deal with the same thing. And you're not unique. We've all fumbled on our words. We've all asked bad questions, and it's just about how you deal with it and how you recover and to get you to pick your best jury possible. So with that, Harry, any final thoughts on episode one?

Harry Plotkin (: 48:11

Oh, gosh. I mean, get ready to learn a lot of things that maybe that you're doing wrong or things that we see lawyers doing wrong and our guests are going to be, that's basically the number one topic who's like, what are people doing wrong out there that you see? Why do you do it differently and why? And be open-minded in hearing these things. Because I mean, our goal after you watch at least a few of these episodes is to totally revamp your jury selection, which isn't easy to do, but if you've just sort of been learning by conventional wisdom, there's probably a lot of things you could do better. So hope you have thick skin and hope you're ready to learn.

Dan Kramer (: 48:41

Yeah, absolutely. Can't wait to get this going. Thank you, Harry, and we're excited for our first round of guests. Like I said, we already have Irish Ur Eary sex, Steve Var and Courtney Rowley, Natalie Weatherford, Gary Dordick, Joe Free, Ricardo Veri. We're getting all these people to come talk to us about their experiences, and everyone's really excited for this. So thank you for tuning in. We'll see you next time.

Voice Over (: 49:06

Thanks everybody. If you're enjoying the podcast, the best compliment you can give us is sharing it with a colleague who would find it valuable. For all the best clips from the podcast, follow us on social media. You can find those links in the show notes, have a jury selection story to share. Email us at podcast@pickingjustice.com, and we may address it in a future episode. Until next time, remember, you're not just picking a jury. You are picking justice produced empowered by law pods.