Steve Vartazarian – How to Keep Biased Jurors From Being Rehabilitated (Rewind)

Voice over (: 00:00:02

Ready to take your verdict 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 LawPods.

(: 00:00:21

Hey there. Before we jump in, a quick word. Every so often we like to reach back into the archive and reshare an episode that really landed with listeners. And this is one of those episodes. If you've heard it before, you'll probably catch something new the second time around. And if it's new to you, welcome. You're starting with one of the good ones.

Dan Kramer (: 00:00:43

All right. Welcome to the newest episode of Picking Justice. Harry, how was Vegas?

Harry Plotkin (: 00:00:51

Ooh, Vegas was... It's interesting to be there for work picking a jury, but we got to pick. They're doing openings in about 45 minutes from now. Although by the time we put this on the air, it'll be long over. A

Dan Kramer (: 00:01:03

Big verdict, knock on wood.

Harry Plotkin (: 00:01:04

Yeah, exactly. That's always the goal.

Dan Kramer (: 00:01:07

So how is that picking a jury right next to the strip?

Harry Plotkin (: 00:01:10

Good question. Well, I mean, in Vegas it's downtown, so your options are either take a 25-minute Uber from a nicer hotel or stay in beautiful, lovely downtown Las Vegas, which is what I did, and walk in and see some colorful sights. But yeah, no complaints. It's a lot of fun. It's like when you're working and you guys know in trial, it doesn't matter if you're in Hawaii or if you're in Fresno, you're just locked in and focused on what you're doing.

Dan Kramer (: 00:01:34

Yes. Fresno and Hawaii always go hand in hand when you think about those two beautiful places. My wife's from Fresno, so I really don't want to talk bad about it. Anyway, I'm really excited for this episode. One of my good buddies, the guy I look up to who has really kind of changed the way my philosophy on cases and trying cases and really someone who just says, "Screw it. Fuck it. I'm going to trial." And I love that. Steve Vartazarian is here. Steve, I got to say, I mean, this guy has had incredible verdicts. He is definitely not a one trick pony. He will try any case, anytime, anywhere, any hits, whether it's nine figures, a constant eight figure verdicts, really one of the preeminent trial lawyers in the country, Steve Vartazarian. And I got to just say real quick, so I was talking to Steve.

(: 00:02:26

He followed me as president of Los Angeles Trial Lawyers Charity. And he told me, he said, "Look, I just kind of tell the defense what my dollar amount is, kind of what my bottom line. If they don't want to pay it, they won't pay it and I'll try the case." And it really has changed the way my philosophy on trying cases, Steve. And so how you doing, man? It's great to see you.

Steve Vartazarian (: 00:02:45

As always, nice to see you guys. Thanks so much for the nice introduction. I appreciate the kind words. I'm doing good. It's Friday. I'm happy.

Dan Kramer (: 00:02:54

All right. Another thing about Steve is he's not only an amazing trial lawyer who, like I said, hits humongous verdicts, he also is a restaurateur. I think it seems like your real passion is being a chef, is it not?

Steve Vartazarian (: 00:03:07

Look, I get accused of that a lot, but my heart's in trial and litigation. I mean, we eat and breathe that stuff. It's all we think about. It's our life and that's the way that I make my living. And I've been successful in that, as you mentioned, which allows us to venture out and do other things that we enjoy. But this trial works like a fricking magnet, man.

Dan Kramer (: 00:03:30

It's

Steve Vartazarian (: 00:03:31

Always, you can go and hang out at your restaurant, see how it's doing, but I have people that run all that. I've delegated the whole thing. I basically just show up and eat and leave. That's the extent of my involvement, but with all these different locations now, wherever I end up in the city, it's cool, man, because I have somewhere to go that I can call home. And that's a product of litigating successfully. I guess you could start doing things that improve the quality of your life and you could start making your dreams come true. Growing up here in the Valley, I own some of the restaurants that I couldn't afford to go to as a kid unless my mom took me.

Dan Kramer (: 00:04:07

That's great.

Harry Plotkin (: 00:04:08

Let me do a shout out for you. Brothers Sushi, if you guys are in LA or the Valley or Santa Monica, Brothers Sushi is the best sushi place you can go to. It's all Steve.

Steve Vartazarian (: 00:04:17

Yeah. Brothers Sushi and Shibuya in Calabasas, which is my baby. We're opening a second location near Agora. So I have fun with that. It's nice distraction and it's good talking about jury selection. I love being in the restaurant environment because so many people come up to you and they want to talk to you and ask you questions and you want to ask them questions. I must meet like a hundred or so people a week and I'm getting really good now at just, I can get into how is their life, their kids, their job. Some of them, if I ask a little bit more different prying questions, not intentionally, after a sock year or two, their marriage, get advice about that. I mean, you could really find out a lot about people if you're in the right environment and you demonstrate a nice tenor in your disposition.

(: 00:05:09

You can really get people to open up to you. Now, my example, they want to talk to me, but the same is true if you want to talk to them as well. And especially in jury selection, I mean, they know why they're there and the trick is to get them to do exactly what I just said, which is open up and tell you how they really feel.

Dan Kramer (: 00:05:30

So let me ask you, Steve, are you good at customer service because you're trained as a trial lawyer to pick a jury or are you getting better at jury selection because you're in the customer service industry?

Steve Vartazarian (: 00:05:40

No, no. Very. I've solved so many different problems while I'm there. Somebody will have a complaint. So what we do is we always make everyone happy. Even in jury selection, if something untoward is said, no problem. There's this fear that if they say something, what's it called, Harry? They indoctrinate,

Harry Plotkin (: 00:06:00

Poison the well.

Dan Kramer (: 00:06:01

Poisoning the well.

Harry Plotkin (: 00:06:02

It's all bullshit, man. I don't care what you say. In fact, the more bad shit that you say, the better I'm going to be at making a decision on what to do. And so everything is welcomed, always very accommodating. You never lose your cool. You always solve problems very quickly. And so the industries are the same essentially. It's customer service-based.

Dan Kramer (: 00:06:23

That's so interesting. So when you deal with a problem at the restaurant, how is that similar to how you deal with tough responses from a jury?

Steve Vartazarian (: 00:06:32

So as we know, your life, how you live it, what you see in front of you every day and how you view things, it's all here. It's up to you how to respond. Some people out of a hundred people, 40 people listening to the same thing will get very pissed off, upset, combative, angry. Another 40 may walk away, feign ignorance of the issue or whatever, try to avoid it, this, that, and another 20 people, the remaining will address it in a positive, accommodating fashion just to get to a resolution. And that's the most productive, right? Because at the end of the day, we just want the result. If I don't have to get mad to get, why would I? It's a waste of time, but it's how you perceive what's coming at you. And so if you're able to modulate that, you could be successful in most any interaction, I think, and I've become good at it.

(: 00:07:31

When I was a younger attorney, I was a shithead.

(: 00:07:36

A defense attorney would say something to me or somebody would say, I'd fly off the handle, man, in a reasonable way. Reasonable way, meaning 30 seconds into my, this, that, this, that. I know I have to fricking apologize tomorrow. I already know it. So I'm like, oh God. And you start feeling guilty about the way that you respond to some of these things. In fact, to talk about that a little bit more, how many times has it been where you've been on the side of right and you've come to confront somebody about it, something that happened, but you end up being the one in the wrong and the one actually apologizing because how you did it, even though you were the one that got screwed over. My

Dan Kramer (: 00:08:13

Wife would tell you 90% of the time for me.

Steve Vartazarian (: 00:08:16

Yeah. So you can't do that. And so because of that, even in the light of someone acting in the way that I just described, you approach it with sympathy, patience, compassion, sensitivity, understanding, and with that view, you could solve problems quickly.

Dan Kramer (: 00:08:36

I think that 100% applies to jury selection.

Steve Vartazarian (: 00:08:38

And so the perspective with jury selection at its inception, there is no reason for emotion. Well, you could demonstrate care, connection, that you care for the client. Of course, you want to establish credibility with your disposition, but there's no reason to get pissed off, man. And so I have this list of things I'll put up here in a moment, but it's how you approach it, life, jury, it's all the same. And I make mistakes here and there. I'll overreact. I'll say things that I told myself I wasn't going to say, but I need this person to know. But for the most part, as we get older and as we fine tune our skills, we're more user-friendly. And that goes a long way with people.

Dan Kramer (: 00:09:22

What did it take you to kind of flip that switch from shithead Steve to Zen, Steve? What was that trigger for you?

Steve Vartazarian (: 00:09:31

Yeah. So maturity. I talked to my daughter, who's 12 years old, is more mature than I was when I was twice her age. And so I think for us coming into the legal game or even into life, we come with fierceness, right? I mean, I don't know what any one attorney wants to accomplish, but me, I wanted to kill the damn whole thing. I wanted to crush it, verdicts, this, that. And you feel like you need to fight and you hear all these things, worry or this and trial Viking and this, and they have axes and all this kind of shit and cowboy lawyer with the gun and all these crazy and they're coming in, they're going to kill the defense and the insurance company and all that. And so with that disposition, you think that that's what you need to be doing. And I did a lot of that.

(: 00:10:28

And every time I employed that kind of strategy, granted it worked, but I always had to end up apologizing. I'm sorry, I was abrasive. So after a while I learned, I'm like, I'm sick of apologizing. If I have to apologize for employing this hardcore strategy, then every time I catch myself, I'm like, I'm always apologizing to people. And so I knocked it off. And instead of saying all these things, most of the time now I don't even say anything. I will not make a demand, for example. I won't attend a mediation. I won't pick up a phone call to talk settlement on a case where they want to offer less than the policy. I just won't even engage. And that gets their attention. Why? That's what you're supposed to do. You file a lawsuit, you engage in some form of discovery, and at some point your ass is supposed to make a demand.

(: 00:11:20

That's what you're supposed to do. And when you don't do that, they start calling and saying, "Hey, here's the thing." Basically what they're saying is, "Why are you not doing what you're supposed to be doing?" And that's what they're used to, right? They need to take a demand back and say, "Okay, this is our exposure, this, that, this, that." But when you don't do that, they all start scratching their heads and that's when you become dangerous because now they don't know what you want nor what are you going to do. And for me, and finally they'll catch me at some point over the phone at the end of a depo or whatever, and I try to leave very quickly by pressing the leave button. But stay on, stay on Bartos, you got to talk. And so I tell them, I say, "Listen, you work for the carrier.

(: 00:12:09

You shitheads have been evaluating this. You guys have been doing this for decades, decades. You already have a reserve. You've already made a recommendation. We didn't mediate it, so you were ready to go. You told me you did the writeup on the case. Why don't you just offer me value? Offer me what you got. Well, I don't want to shoot myself in the foot, this, that. And then I say to them, I say, you know what? If my expert expenses are going to be a lot, you'll just get a 998 and that'll be it. Either you take it or you don't, but you got to know when to fight, right? I hate losing. Let me give you an example. I've been defense so many damn times from 2004 through 2010 - ish when I started practicing on my own. I opened my own firm in 2010.

(: 00:12:55

My firm allowed me to try some cases and there were medical malpractice cases, which are among the most difficult, especially here in LA where jurors love physicians. But even in my own firm, when I first started, I had no money, man. I had money left over from my wedding. I had like six grand and I was borrowing money to try cases and a lot of people helped me, but I was losing a lot. And after a while, that really gets to you even now. So what I did, segue for a moment, if you find out all the things that'll cause you to lose and you're not even that good of a lawyer, but you just stop doing those things, whatever you're left with will cause you to win. I mean, that was my experience. That's what happened. I'm like, don't do this shit. Boom, boom, boom, boom, boom.

(: 00:13:38

And I stopped doing things that I know were outcome determinative mistakes. And I started doing things that I know you needed to do in order to win. And that's when I became successful. I started hitting verdicts 50, 200, 350, 850, 1.2, three, four, seven, eight, 12, 18, 30, and the list goes on and on. And so you're able to hone your skill. However, I still wake up sometimes. My kids come 3:30 in the morning, go to the bathroom. On the walk back to the bed, my wife will hear it, "Damn." And she's like, "What are you doing again? Are you remembering that 2006 med mal verdict you got defensed on?" I'm like, "Yes." She's like, "Dude, what? That's like 20 and almost 20 years ago." And so you never forget.

Dan Kramer (: 00:14:24

The losses stick with you, man. This shit

Steve Vartazarian (: 00:14:25

Haunts your ass. You know

Dan Kramer (: 00:14:27

What I

Steve Vartazarian (: 00:14:27

Mean?

Dan Kramer (: 00:14:28

That's good. That's important though. It needs to. It absolutely needs to. That motivates us.

Steve Vartazarian (: 00:14:32

Yeah, it haunts to, and I hate that. And so I only mention these things because now I'm very careful on what I try because I want to win. And so the method that I came up with, and I'll tie this into jury selection, is when you walk into jury selection, you have three kind of characteristics about you. You got to choose one. One, you know you're screwed. It's a shit case. You got screwed on the motions in limine, a heroin needle that has nothing to do with the incident that was found near the accident scene is coming in. There's an allegation in the paramedics report that it may have belonged to the plaintiff. Judge, come on. There's no evidence she was intoxicated. There's no allegation of impairment. They just want to get, oh counsel, it'd be like Thanksgiving a couple days before and the judge wants to go home and doesn't want the case tried.

(: 00:15:26

Motion's denied. It's part of the facts. And so things like that can happen or you got bad. So you know you're not going to get a good result, but you are too much into it. You got too much expense into it. You don't want to come with that because have you ever met someone and you look at them? I mean, I'm sure we all do this. You could tell if they're good, bad, something's wrong with them, you trust them, you don't, they're weird, not weird, cool, you want to hang out, you don't want to hang out. This is somebody you'd invite to your house for dinner. You get all that, right? And the jury can sense the same thing. And that thing is the confidence you have in your case. These people are older than you. Some of them for the most part, they're experienced.

(: 00:16:06

One juror told me something in 2009 and she said to me, look, when we first sat down, the thing that you need to understand is you got up with righteous indignation already alleging that they're such bad actors and they got up with the right to defend themselves. What you need to know is at the beginning, we don't give a shit who wins or loses. Don't think that because you represent the injured party, you're in some way, shape or form righteous. You're not, you're not. So they don't care who wins or loses. They're very, as Harry would put it, neutral as we would like them to be, but they could tell what you have. When they look in your eyes, when they see how you speak, move, refer to your client, refer to your case and all that, I've learned that if you're not confident in your case, it's not a good sign.

(: 00:16:57

So you could either know you're going to lose, not be sure about it, or you're damn sure you're going to win. And so what I've learned to do is only show up on cases where I'm damn sure I'm going to win. And as Harry knows, and Dan, you may know to a certain extent, I run a lot of focus groups and -

Dan Kramer (: 00:17:16

So do I, yeah, a lot

Steve Vartazarian (: 00:17:17

Of focus groups. And I also have a lot of experience now. I've tried a lot of cases. And so I see these young gals and guys and everyone comes up to me and I'm sure they come up to you, Dan, as well. I want to try a case. I want to be a successful trial attorney. I want to buy my own plane, this and that, this and that. I was like, "Yeah, I've been there. I've said those things." And so how you do that is this. As eager as you may be to get into court, you need to wait. It's like fishing. And so the measure that I give is this. Number one, I hear these crazy demands, 80 million on a rear end accident with minor impact. I get this case. I'm like, "Are you kidding me? That's a billboard lawyer kind of demand.

(: 00:18:01

It's stupid."

Dan Kramer (: 00:18:02

No one has ever seen a jury.

Steve Vartazarian (: 00:18:04

Yes.

Dan Kramer (: 00:18:04

Is making those.

Steve Vartazarian (: 00:18:05

Yeah. A lot of these people, they've never even seen a jury and everyone starts arguing how great the... Oh, here's what they tell me. The plaintiff is the best person you'll ever meet. I don't care if the plaintiff is Jesus Christ. Okay? If the case is shitty, we're going to lose.

(: 00:18:21

And so what I do now, which is something we came up with about 10 years ago, now we've solidified, I do this. I peg value conservatively. Assume that your case is worth the injury, is worth $10. Okay? $10. If they offer you $6 to $9, you take that every day of the week. They'll never give you more than nine, too close to full value. They got to save a dollar. They'll never offer less than six. It's too much bullshit. They know you'll never bite. And so issues with liability, perhaps causation, comparative fault, the damages, maybe the plaintiff, whatever, will cause you to settle that case from six to $9, somewhere in that range. That's fine. We do that all day long. However, sometimes in this beautiful work that we do, we will have, as we've been using the word, some shithead adjuster who gets a case from some crappy firm who doesn't try cases and just settles them and they'll set a reserve on a case that's worth $10 at $2.

(: 00:19:28

Then I'll get the case. We'll work it up. We'll designate the best fricking experts we can find, best exhibits. We do all these nice things, very economical these days. You can try a case for 50 to a hundred grand. I've done that many. I know how to do that now. I mean, of course, we don't have a limit on what we can spend on it really and with all reason, but economically we work the case up and I ask the defense, I'm like, "Hey, are you guys going to change your mind? You're going to get killed here.What are you doing, dude? What's going on?" And they're like, "Oh, we're kind of stuck in the... Got our heels dug in on this one." I'm like, "Perfect." And so what I know so that I don't lose, I now can recognize I got a $10 case. I would've taken $8.25 on it.

(: 00:20:16

They're at two. They're not offering me any more than that. Perfect. Got you. As they say, "Got you, bitch." You know what I mean? And so with that, that's like catching the big fish and I wait for those. Sometimes I won't try a case for six months, eight months, whatever it is. And the reason is this, when you walk in and try a case like that, the confidence within which you walk in, I mean, you just exude it. They could tell in jury selection. I had somebody say to me, "I don't think I could be a fair juror in this case." I was like, "Okay, why not?" "Well, the confidence within which you walked in and the things that you're saying, I already know you're going to win. And before I even hear anything, I just want you to know that I'm voting for you already.

(: 00:20:59

"I was like," Shit.

Dan Kramer (: 00:21:01

"So Harry, is that a bias? I don't know.

Steve Vartazarian (: 00:21:04

Listen, man,

Harry Plotkin (: 00:21:05

I

Steve Vartazarian (: 00:21:05

Was like, thank you.

Dan Kramer (: 00:21:07

I started - No, it's not. Wait, hold on. I don't think it is a bias here.

Harry Plotkin (: 00:21:10

Jump in there. It's not a bias. This is what I would say, Steve. I mean, if you get someone who's already like, I could just tell from the aura coming off you, you're going to win this case or whatever, I would just say this. I appreciate that and I'm sure the defense appreciates hearing that too, but let me ask you this. Do you see the difference between somebody being ahead in a race? We always use that analogy of, am I ahead? Am I behind? I have a

Steve Vartazarian (: 00:21:31

Good one. Yeah. I'm going to share it with you guys.

Harry Plotkin (: 00:21:33

Do you see the difference between me being ahead in a race and me being at the same point in the starting line, but you kind of predicting what you think is going to happen? Because it sounds like you're just kind of predicting, but isn't the truth though, if we start this race even and I don't back up what I'm saying, I'm going to lose pretty quick, right? So that's how I would say it to a juror because sometimes they speculate. Sometimes they just say, "I think you're going to win." And you're like -

Steve Vartazarian (: 00:21:58

I did all that.

Harry Plotkin (: 00:21:59

Exactly. So you didn't lose that guy for cause? What happened with him?

Steve Vartazarian (: 00:22:01

Yeah, I did all that. I said to this person, I said, "I appreciate that very much. However, you have no idea about what my case may be. You may not like it. I may not have the evidence. And my colleague here is entitled to a defense and you may believe what they're saying." To which he said, "No, I won't. He looks like a damn cop." I was like, "Oh man." I was like, "Can you just wait until you hear everything before you make a decision on who's going to win? I'll try my best." I'm like, "Just can you do that? Can you say yes, you will do that?" So I got that, but that person was kicked. But I tell you this, and let me tell you why I'm so confident when I show up, is because I now know that if you roll up as a defense attorney on a $10 case offering $2, what are you going to do?

(: 00:22:47

You're going to try to knock it out of the park. Exactly. You're going to either try to outright defense it or bring it in for a dollar. You know what that's going to do? That's what really pisses off a jury and polarizes them because by a week later or 10 days or however long have you, they're so upset that a $10 injury now becomes a $28 injury.

Dan Kramer (: 00:23:09

There's nothing worse than a reasonable defense attorney that's putting on a reasonable trial. Well, that's worse. When they're so entrenched, like they told you, our heels are dug in. I agree. It's like such a gift because all their experts have to fall in line, all their witnesses are going to fall in line, and the jury is just going to get so fired up.

Steve Vartazarian (: 00:23:25

And so that's why a lot of these insurance companies or firms, they don't want to try cases against me. And I know Dan, you as well. It's because they can't measure the exposure, right? A broken leg is worse. It

Dan Kramer (: 00:23:38

Scares them. Yeah.

Steve Vartazarian (: 00:23:39

$10, let's say. How is it that when I try the case, I bring it in for $32? Why? Because I wait for the perfect damn storm to nail them every single time. For instance, if you admit liability, completely changes my entire evaluation because now I'm on the hot seat having to argue causation and that's what it comes down to. And now I look like a greedy asshole. And so I evaluate that much differently. Once you admit liability, my $10 now, I'll go down to a different range for settlement and hopefully they'll come up. But if you stay the course as some of these defense attorneys do and you wait for that, that's how you really rock and roll. Well,

Dan Kramer (: 00:24:20

Let me ask you on that, Steve, since we're going to talk to some jury selection here is on an admitted liability case, how are you addressing that in jury selection?

Steve Vartazarian (: 00:24:28

Well, on a case like that, every single time we have to say they've taken responsibility, but have they? Let me tell you what responsibility looks like.

Dan Kramer (: 00:24:37

You're saying that in jury selection?

Steve Vartazarian (: 00:24:39

Sometimes if I can get away with it. Look, I'm not afraid of objections. I don't give a shit if it's appropriate or not. I'm going to try to impose my will the best that I can. And if I get shut down, remember what we talked about in the beginning of this thing? I'll find a different way. I'll be kind about it. But they know that it's an admitted liability case, so I don't talk about that too much. I don't want to spend too much time. And the reason why is every time you say that, you acknowledge that they've accepted responsibility or fault, which I don't like to use that term. And we try to split hairs and say, "But wait a minute, they haven't accepted responsibility for the extent of the injury." Jurors don't really care about that too much. If they hear that they've accepted...

(: 00:25:22

I'm like, "It's a rear-ender, folks. They have to. If they could dispute this, they would dispute that too." But when it comes to a causation dispute versus a liability dispute, and they've admitted this, this one's a little bit trickier in their eyes because you hear things such as, "I commend them for that," or, "They're class acts for taking responsibility for the collision." I'm like, "They had to. It was a rear-ender. They didn't have a choice." And some jurors will laugh. So what I do is I take that same equation, Dan, that I mentioned, and I fit it into the causation with admitted liability. What are we really going after? I'm going after back when we were doing car accidents with neck injuries and stuff like that. I want two million for a neck fusion. They're saying it wasn't indicated. They're asking for 300 grand. That's a fair fight.

(: 00:26:11

As long as there's something that you can fight about, then potentially you can turn that into something where you can vilify them to some extent.

Dan Kramer (: 00:26:18

Yeah. I like the way Harry kind of... You've written some of these questions for me, Harry. It's that the defense has accepted one or they're admitted 100% responsibility. I forget exactly how you phrase it, but what that just means is that when the attorneys got all the evidence, gathered it, they realized that they didn't have any other option or something like that. Harry, what's your wording on that?

Harry Plotkin (: 00:26:36

In a mini opening? In a mediopening, yeah. I always like to turn it on its head and say after the evidence came in, they really had no choice but to admit fault. And sometimes in jury selection we'll say, does anyone think that just because they have to admit that they were 100% fault, does that mean that they're being totally honest about everything in this case and they've fully accepted responsibility? And anybody going to kind of give them... So I always like to ask that. Anyone think that we're the ones who are the bad guys for being here? And sometimes jurors will tell you that, but a lot of times if you phrase it right, they're like, no, I get it. I mean...

Dan Kramer (: 00:27:09

I especially like saying when the attorneys got all the evidence, they made a decision because in my... And I just did this recently, Steve, you were there at

(: 00:27:17

CAOC.

Dan Kramer (: 00:27:19

You then make it the attorneys are making a choice and then I plant that later on for closing when I do the two pass type of thing where let's go back in time, not to the date of the incident, but when the attorneys were in their big boardroom and they were gathering the evidence, they had a decision to make. They made a choice at that moment. And the choice was either we're going to accept what happened. We're going to try to make this right and compensate for what is fair and reasonable. But unfortunately, they chose the other path. And it's always trying to have the attorneys, especially when you got a sympathetic 16-year-old kid or grandmother as the defendant, it's getting the jury in that mindset that this is a corporation making these choices. I like planning that early on in mini opening.

Steve Vartazarian (: 00:27:59

I agree, but I will say if you have the right case, it doesn't matter whether they admitted liability. If your causation case is strong and you can do techniques like vilify them with their choices and what they did, or if it's clear that a certain incident caused a certain harm, that's just as good, you know what I mean, in my book. Now, it's a different dynamic than a contentious case with liability at issue. It's a different dynamic, but it's doable. It just depends. It just depends on the injury, the plaintiff, and it's a whole different set of considerations. You got to be very careful with admitted liability cases, I feel. They're dangerous, but can you phrase them and frame them in a way where you can get good traction? Absolutely, of course. If you got the right case, the discrepancies, you can articulate where they're at, where you're at and why.

(: 00:28:50

I mean, I've hit a lot of cases where the admitted liability, my offer's a million, I brought it in for four and a half, seven, something like this. It's possible. I mean, you could do it. It just, again, you got to be selective and once you choose it, you got to know how to do it. Like Dan, you know how to do it. I'm a little more comfortable now on causation cases with admitted liability, but it depends. It's the feel, right? The case has to have the right feel.

Harry Plotkin (: 00:29:13

And there's got to be a bad guy, right? I mean, there's got to be... Even when they admit - Got

Steve Vartazarian (: 00:29:17

To be a bad

Harry Plotkin (: 00:29:17

Guy. Even when they admit it, if there's a defense expert who's just full of shit, the defense lawyer is just making unreasonable arguments, the jury will get that, but you got to find who that bad guy is, right? If there's no bad guy, you're not going to get a big verdict. Yeah.

Steve Vartazarian (: 00:29:31

Exactly. And

(: 00:29:33

In every case, especially a causation case with admitted liability, the cross-examination of the defense's expert is the most important thing in the whole damn trial. It's more important than putting your plaintiff on, in my opinion. Again, you can do what you want. I totally agree with that. I mean, I have my own opinions and my own beliefs, but in my opinion, the plaintiff can... They get him some mistakes. It's expected. As long as they're okay, for the most part, they don't get hit with subrosa or caught with something. If you can nail the defense expert, let me give you an example. We had a case, same, admitted liability, slip and fall. I can't remember exactly all the facts, but I do remember the expert. And the expert said because there was some problems with the person's shoulder and knee that predated the incident, the surgeries were not required or necessary or reasonable as a result of the subject incident.

(: 00:30:31

At that issue in the case, they admit to liability on a slip and fall. And he put that in the record, in his note during the IME said the plaintiff said it, "My knee hurt." And he was specific too, like on the medial side of the right knee, this, that, this, that. My cross-examination, this is one of my first cases where I nailed it. It was in 2012, 13. I was able to demonstrate that there was no file, no medical record, no information, nothing whatsoever that indicated any preexisting injury. And he just said the shit. And it took a while, but I got it out of him. And at the end of which I said, "I paid you almost $2,500 for three hours of your time and that's money I didn't have. And I expected you to be honest and you weren't." Some combination of this weird argumentative question that you're not allowed to ask, but I didn't and it was very effective.

(: 00:31:24

It was so effective and so asked at the right time that even the defense didn't object because they knew the point that I was trying to make and it came at the right time. And so if you can become effective in these crosses of the defense expert on an admitted liability case where causation's an issue and the difference between a few million bucks, that's where it's at.

Harry Plotkin (: 00:31:45

I found it's not even just necessarily the defense expert. Sometimes it's the defense experts that are just full of shit and you can expose them. But sometimes, have you guys seen this? Sometimes it's the defense lawyer will become the villain because sometimes their experts are semi-honest about it and they try to take everything that the plaintiff's experts say and their experts say out of context. And if you can show the jury, they're just trying to manipulate the jury, they're taking shit out of context and not showing things. I mean, sometimes when the lawyer is the villain, that's probably 10 times better than the expert being the villain.

Steve Vartazarian (: 00:32:16

Yeah. The problem is that a lot of these defense attorneys are smooth and if they got you, you're so toast.

Harry Plotkin (: 00:32:25

Oh yeah. If it's in context. The best

Steve Vartazarian (: 00:32:26

Defense, like what Dan was talking about when it's a gift is when they are taking direction from the insurance carrier and saying, "This is what you're going to do." And I'll catch them in the bathroom on the way out from breaks and stuff like that. I'm like, "You good?" "God damn it. I would kick your ass on a different fact pattern, this, that." I'm like, "What happened? They're making me say this shit. I don't believe in these defense." I'm like, "Why don't you just settle the case?" "Oh, you know I can't do that. They got their heels dug in. "I'm like," Perfect. "And now that's how I know we're going to be okay for another year or two. I'm like," Okay, perfect. "And so these are some of the things that you see, but certainly they can get ahead of themselves sometimes, especially when they come up against somebody like myself or Dan, which we are very well known in all of California now for getting great results.

(: 00:33:20

They really want to nail us. And the problem with nailing me, and I'm sure this applies to Dan as well, I wait to catch you. I told you which case I'm going to try. 99.9, I'm going to win. And so the harder you try on a shitty defense case, the bigger the verdict's going to get. And so being patient, evaluating correctly, knowing which case to roll on and which case to settle and put some money in the bank, it's critical to your success. Critical.

Dan Kramer (: 00:33:48

All right, Steve, let's really get to the jury selection that Steve Vartazarian does. Okay. Harry, why don't you kick us off on the...

Harry Plotkin (: 00:33:54

Yeah, because I mean, one of the things that I think we're teaching here is not just the awesome stuff, but the stuff of like... Steve, I know for you, Dan, I know for you, for me, everybody, how we picked a jury five years ago, 10 years ago was way different. And sometimes you look back and the questions that you asked and things you did and you're like, "What the hell was I doing back then?" Let me show you what

Steve Vartazarian (: 00:34:18

Those things are.

Harry Plotkin (: 00:34:18

Even when you're winning trials, even when you're like, "How did I win some of these trials doing some of these things? How did I get good juries even doing that?" But getting better and better is all what it's about. So Steve, we want to talk, what is one thing that you do totally differently now that has totally changed your approach?

Steve Vartazarian (: 00:34:33

Right. So I've watched a lot of jury selection and if you're watching this podcast, it's probably because you want to be a good lawyer, you want to hone your craft, you want to learn what to do and so on and so forth. Here's what I learned a long time ago. All the shit that we were taught as young lawyers — you know where it came from? Some hypothetical playbook that somebody created when litigation was popping in the late 60s, 70s and 80s and they created something that could be handed down for people to do. And here's the buzz phrase, when they didn't know what else to do. When they didn't know what else to do, they're like, "Oh, do this." And so in our PI game, maybe in writing, some of it may not be, but we have a playbook. This is what you're supposed to do.

(: 00:35:20

And the people that follow that playbook are the people that don't know what else to do. Some of the ideas in it are good, but the rest of them are just mediocre shit that you're told to do because you don't know what else to do on your own. And when I realized, "Oh my God, I don't have to follow it." I can be creative. I can do what I want to do. I could try out different things. I don't care if it draws an objection. I could bring an exhibit the size of a massive forklift into the courtroom. I could do whatever I want in my mind that's acceptable in the courtroom where you're not going to get thrown out or sanctioned. And if it works, it works.

Dan Kramer (: 00:35:58

Because judges also don't really know either.

Steve Vartazarian (: 00:36:01

They don't know. They know, but —

Dan Kramer (: 00:36:03

They know, but they don't

Steve Vartazarian (: 00:36:04

At the same time. They don't. And so let me share with you some of the things that you're not supposed to do that caused me to lose and then we can go from there. All right. Can you guys see this?

Dan Kramer (: 00:36:16

Yeah. Obviously for those listening in their car, what we're seeing here is a handwritten paper. What does this say here?

Harry Plotkin (: 00:36:22

And it says, "Don't do this stuff" for those of you at home who can't see it.

Steve Vartazarian (: 00:36:27

So what this is, these are the things that when you walk into a courtroom as a young lawyer or even as an experienced lawyer, a lot of the time what I see people doing is they can't wait to start arguing their case. It's their first chance. They jump the gun. They start arguing why they're right. For instance —

Dan Kramer (: 00:36:48

Are you saying in mini opening or just in the —

Steve Vartazarian (: 00:36:50

No, no. During jury selection, they're attempting to convince the jurors. For instance, there's a restaurant slip and fall case where it's icy outside up north. Somebody slipped on the way up and they had policies that you're supposed to put salt and hot water and this and that. They didn't do it. They started arguing that. Restaurants are supposed to have rules and this and that, and they would just begin trying to convince jurors that their case is righteous. Don't do that. That's not what jury selection is for. And if you want to do it, you can't. I wouldn't. I'm going to wait until opening where I could demonstrate it. It's like in a few hours or the following morning. It's fine. So the things you don't want to do is argue your case. The next one, try to perform some crazy stunts or acts that you saw. Show up wearing a fringe jacket, dress like a cowboy, you know what I mean?

(: 00:37:42

And throw your hat across the table and do all these weird things and all that. Don't make a scene. Don't —

Harry Plotkin (: 00:37:48

Should I not do that as the jury consultant? You want me to throw my cowboy hat across the table?

Steve Vartazarian (: 00:37:54

Yeah. I just see people doing weird stuff. It's not going to work. If you think it's ingratiating or they're going to like you for it, they're not. They're waiting to judge you. If you do something out of the norm, you better hope it lands. The next one is weird questions. I don't have any specific examples, but weird questions that don't really get you anywhere. I mean, Harry, I'm sure you've heard those.

Harry Plotkin (: 00:38:14

Oh yeah, million times.

Steve Vartazarian (: 00:38:16

Just off the wall kind of that has nothing to do with anything and you think you're trying to accomplish something, you have an idea and it doesn't work. So you got to be careful of that. I used to do all of these things. And lastly, talking way too much and using outdated analogies that take a long time.

Dan Kramer (: 00:38:32

Like what?

Steve Vartazarian (: 00:38:33

For instance, on one Christmas morning, this is, I guess, priming the jury to ask

Dan Kramer (: 00:38:39

Them. I

Steve Vartazarian (: 00:38:39

Think I

Dan Kramer (: 00:38:39

Know where you're going with this.

Steve Vartazarian (: 00:38:40

Again, you have 45 minutes to an hour. So the guy gets up or gal gets up and says something like, "On one Christmas morning, we had a family gathering and that gathering we had every year. And it was time for all of our family to come from all walks of life." I was like all walks of life and from all places. And I was like, "Who's coming to this party?" And they came and I hadn't seen my cousin Jimmy for a long time and he was very frail. He had some drug issues and he had just gotten out of rehab and he was doing well and we invited him and he came to my home and while there for a couple days we rekindled and he told me he's going to go out and he'll be back. And he came back in a few hours and he had a bag and he had a present and he gave it to me.

(: 00:39:28

And folks, I want to tell you it was a tie and it was the ugliest tie that I had ever seen. It was yellow with purple squares on it with red dots in between with the face of Felix the cat, this and that. And it was just horrendous. Oh my God. And he was so proud to give it to me and he just loved it so much and he insisted that I put it on and on and on and on.

Dan Kramer (: 00:39:56

The judge is like, "Counsel, your time's up."

Steve Vartazarian (: 00:39:57

Well, no, here's the thing. They don't care. The clock's running. They don't care what you say.

Harry Plotkin (: 00:40:02

No, I know.

Steve Vartazarian (: 00:40:02

That's my point. Sometimes

Harry Plotkin (: 00:40:03

They do though. Sometimes they're

Steve Vartazarian (: 00:40:04

Like - Oh, you're right. Yes, then. I'm sorry.You're right.

Dan Kramer (: 00:40:07

The judge is like, all

Steve Vartazarian (: 00:40:08

Right. Then ladies and gentlemen, and I wore that tie and I wore it proudly and I thought I looked great and I was showing everybody the kids and we made a thing of it, blah, blah, blah, blah, blah. And then the next year we had our family Christmas again. And when he came, I made a point to wear it because I did not want to hurt his feelings and tell him that I did not like this tie and I would never wear it if I was dead. You know what I mean? I want to burn it when you leave. And I couldn't tell him that because we want people to feel comfortable and this and this and that. Let me cut it short. My point. Then they'll spend another five, 10 minutes telling the jury that from this example, if you don't like something about my case, you could tell me.

(: 00:41:01

That's the point. Okay?

Dan Kramer (: 00:41:02

I know.

Steve Vartazarian (: 00:41:03

And so if you're going to do stuff like that that you read in a book, you got to knock that stuff off because now it's like you got to be artful. So let me give you an example of one thing that I use.

Dan Kramer (: 00:41:13

Harry, what are your thoughts on those little stories?

Steve Vartazarian (: 00:41:18

I got a good one, so go ahead.

Harry Plotkin (: 00:41:19

I'm going to speak for at least California juries. I'm going to guess most places, but I mean, there's some places in the South that really love a good story, but in Los Angeles, you tell a story that takes more than 30 seconds. The jurors are just rolling their eyes and like, where the hell are you going with this? So you can't tell it in voir dire. Yeah. In voir dire. As a question.

Steve Vartazarian (: 00:41:40

Counsel, ask questions.

Harry Plotkin (: 00:41:41

But the one that I see a ton is on your list is weird questions that don't get you anywhere where they think, and I see this mostly from the defense, but sometimes from the plaintiffs, where it's like they're trying to precondition something. They think they're preconditioning the jury somehow, or they think they're learning something. And you're right, it has no purpose to the question. I mean, I saw a guy - What's an

Dan Kramer (: 00:42:00

Example? Harry, give us a -

Harry Plotkin (: 00:42:02

Just yesterday, the defense lawyer and this jury I was picking, he got two people off for cause that really weren't bad for him at all. He was just like, "Could you follow the law, even the judge's instructions, even if it was super unfair? Let's say the judge told you, you have to find that the moon was green. Would you be able to do that?" It's like, what kind of a stupid analogy is who could find that the moon is green? And honestly, everybody's going to feel that way. There's not a single juror on here who, if they're telling the truth, wouldn't be like, "Of course I wouldn't do that." But all you're doing

(: 00:42:35

Is

Harry Plotkin (: 00:42:35

You're getting off people who are like, "What the hell are you talking about? Okay." And so we got off one guy yesterday who was like, "I mean, I want to say yes, but I don't want to just blindly just sort of say I'll do anything." And he was all proud of himself that he got them off. But was he a bad juror for you? No, he was just some guy with common sense who had a mind of his own.

(: 00:42:55

Yeah.

Steve Vartazarian (: 00:42:55

I get it. You want to tell the jurors that they can tell you everything. And so I come up with this example. I tell them, I say, "Folks, so here's the other thing, segue for a second. Some judges will let you give a small intro to explain what's going to happen so that they know what's going on. And you have like three minutes to explain it. Others will say, just jump into the questions." If they give you an opportunity to say a few things, I say something like, "Look, I have to ask you questions. I'm going to choose topics about my case. You all walk in with experiences and opinions. Either you've experienced something or you have an opinion about it. And like lawyers, lawsuits, car accidents, these are some of the things we're going to talk about. And I want to know if you don't like them or you don't like lawsuits or you don't like car accidents, this and this and that." I go, let me give you -

Dan Kramer (: 00:43:44

Sorry, that's your whole intro.

Steve Vartazarian (: 00:43:45

No, but it's something like that.

(: 00:43:48

It's something like that. It just depends on every... I'm just giving you an example to cut time shorts, but I'll say something like that. And then I'll say something like, which I've done in the past and people like it. I'll say, "Let me give you an example. When I first got my job and I was interviewed by my boss, he had these unsightly nose hair sticking out of his nose." And some of the jurors are like, "That's weird." I'm like, "Yeah." And I sat down next to him or across from him and as he was interviewing me, it's all I could look at. And I just wanted to tell him so bad, "Hey buddy, please, you got to cut those. Let me tell you what happened. It took me four and a half years to muster up the courage, the relationship, the energy and the wherewithal to finally tell him when we went to court together, four and a half years later, I got comfortable enough to say, by the way, before we show up tomorrow, you may want to..." He's like, "Oh, are they bad?" I'm like, "They've been bad probably your whole life." And I tell the jury, "Look how long it took me four and a half years to become comfortable enough.

(: 00:44:44

I couldn't have done it right at the interview on the first day. Unfortunately in this case, when we talk about some of these topics, if you want to say something to me, you got to do it on the first day interview, but also know that I'm expecting it and I don't mind. But that's the level of honesty you need to have. Don't worry about hurting my feelings or keeping composure in our society. All that's out the window. If you don't like lawyers in lawsuits and car accidents and stuff like that, and I'm not going to get a fair shot at proving to you that such and such, just tell me. It's like a trial's like a shoe. If it doesn't fit, they have this example. It's nice to use. Maybe it's not the right fit for you. That's it. Not going

Dan Kramer (: 00:45:26

Into

Steve Vartazarian (: 00:45:26

It. I try to make it quick to get the point across.

Harry Plotkin (: 00:45:30

Steve, I like that analogy. I've used it before and I learned that the shoe one from you. I like to just extrapolate a little bit sometimes to make it easy to get jurors off to kind of say it's like a shoe. It wouldn't be right to hand you a shoe that's two sizes too small and say, Hey, go work a whole eight hour shift in it. You'd be in pain. It's painful. It's not fair to you. And so in this case, there may be some law, this is how I use it. There may be some laws that you're asked to enforce that don't fit you, you don't agree with. And it would be wrong to ask you to sit there this whole trial enforcing a bunch of laws that make you feel uncomfortable. It's the same thing. That would be like asking you to be in pain and jurors will say, "Yeah, you're right."

Steve Vartazarian (: 00:46:09

Yeah, just tell me. And so here's the beauty of jury selection. Jury selection is about what you make it about. You get to pick the topics. And so what I saw a lot of attorneys doing is they didn't know what to do. Have you had that feeling in voir dire in the first few cases you tried where you're like, "Oh my God, what am I doing? I'm up here now. They're all looking at me, which is fine. I mean, I'm not afraid to give a speech. It's fine. I'm not nervous about that. I'm nervous about the fact that I just don't know what I'm doing right now. I don't know what to do."

Dan Kramer (: 00:46:41

Well, then that gets in your head and while you're up there, you're like, "Oh shit. Where do I go now? What do I do? Where

Steve Vartazarian (: 00:46:46

Do I go from here? What am I trying to accomplish? What am I doing?" And so after going through that a long time, and I have a lot of associates who wanted to try cases and they're like, "Teach me what to do." I'm like, "Shit, I don't know what to do." And so I came up with this full proof method that I employ every time now. Of course, I put bells and whistles on it, but just to make it super simple, like my notes here, I just hand wrote them to show you how simple it is. Here's what I do. Number one, let me flip this around so you guys could see this. Don't be a dumb ass as they say. Choose your topics that you're going to voir dire on wisely. Choose them wisely. Don't ask about bumper stickers and stuff like that. I don't know, Harry.

(: 00:47:31

Sometimes judges shut that down. The books you read, the news you watch. Yeah. Do I want to know if you're a Republican or a Democrat? Yeah. I mean, yeah. It's like, okay.

Dan Kramer (: 00:47:42

It's a small piece of data, I think. It's a

Steve Vartazarian (: 00:47:45

Small piece of data. I already know what jurisdiction I'm in. I could pretty much... So what I do, I choose my topics wisely. Let me tell you what I mean. In an effort to conduct a very thorough voir dire in a matter of 45 minutes to an hour and 15 minutes if I'm allowed to go, if I'm making progress and very effectively. And so here's what I do. Let's say you have an Albertsons, the grocery store delivery van that sideswiped your car and liabilities at issue and you got a neck surgery. Okay? That's the case. So here's what I do. I get clearance in advance. I tell the judge and the defense, I say, "Hey, I'm just going to ask about four or five topics. Do you mind if I write them down?" And they're always like, "What are you going to do? What's going to happen?" I'm like, "I'm just going to write down four words.

(: 00:48:37

Here it is." And I show this to them and it looks just like this.

Dan Kramer (: 00:48:40

So you're writing this on a butcher paper when you first stand up?

Harry Plotkin (: 00:48:46

For the jurors to see, right? Yes. Or butcher... Yeah.

Steve Vartazarian (: 00:48:48

Yes. Here's what I do. And I know people are going to watch this, but I do it right before I'm going to do it. So let's say we break and I'm going to get up and start asking questions. Right before that break or during it, I will show the defense attorney this. And I'll say, "It's just a continuation of the demographics that were just asked about. I'm just going to ask about this, nothing more." And then if they say... They get hem and hawk because they don't like things being shown ever during any part of the trial.

Dan Kramer (: 00:49:16

They don't like foreign concepts. They don't like foreign concepts. They don't like it. This is unique.

Steve Vartazarian (: 00:49:21

And so it occurred to me, oh my God, I was like, "One day, jury selection is the only time where we're only relegated to words and we can't show the jury anything. Why is that?" I'm like, "Let me try to break that mold. Let me try to have a focused jury selection so we're not stranded somewhere in our minds where we know where we're going." And so this is what I came up with. I pluck out a few things from the case that are germane to voir dire to get a neutral jury, and some of them are constants. For instance, the ability to award damages and lawsuits. I ask that in every case, but these top three here I've chosen that are -

Dan Kramer (: 00:49:57

So let's tell the audience what we're looking at here, Steve. We're

Steve Vartazarian (: 00:49:59

Looking at five bullet points. The first one says Albertsons. The second one says car accidents. The third one says neck surgery. The fourth one says lawsuits. And the last one says ability to award damages. I choose four to five things in every... I've hit so many verdicts, as Dan was mentioning, just using this very basic method. That's the thing. It doesn't have to be complicated unless you make it.

Dan Kramer (: 00:50:24

Let me ask you, Steve, sorry. So mechanically, so you do your intro like we talked about, and then are you putting this on the ELMO? Yeah. Are you putting this on a poster board, butcher paper? Yes, either or.

Steve Vartazarian (: 00:50:35

Either or.

Dan Kramer (: 00:50:36

So this is up there. And then what's the very next thing you do when you address this?

Steve Vartazarian (: 00:50:39

Let's talk about the mechanics of this. What does this mean and what are you trying to do? You need to know that so that you're not stranded somewhere all of a sudden. You need to have, I call it circular logic where wherever you find yourself on your conceptual circle, you can always circle back and you have a consistent train of though. So in order to do that and be comfortable up there, here's a few things you need to know. Number one, when it comes to Albertsons, you want to voir dire on bias. You want to know if anyone is for, against, experience, opinions, that's fine. Same thing with car accidents. You want to know if they're for, against, they hate car accident cases, et cetera, whatever the hell it is. You want to know that? We're going to get to that here in a moment.

(: 00:51:28

I'm going to skip over neck surgery. When it comes to lawsuits, you want to know whether they're okay with the fact that we're in court and we're going to try this case and see who's entitled to money or they're not. And we'll talk about that here in a moment, but briefly, if somebody's been a plaintiff, they've had a good experience, bad experience with the defendant, they're with you. If somebody's been sued, they hate the process, they hate being sued, they're going to be voting for the defendant, stuff like that. So these are the three areas where you may have an Albertsons employee. My mom is a cashier, stuff like that. Or car accident cases, they're all fraudulent. They're staged. They're this, they're that. I can't vote for you. Or lawsuits, one way or the other. These are the three where you really want to determine whether they have bias or not, where your cause challenges are, in my opinion.

(: 00:52:15

Again, Harry would know much more than me. This is just what I do, so I'm just telling you what I do. Now, those are the three. Lastly, the ability to award damages, it's not a bias. It's either you can do it or you can't do it. You're either comfortable awarding money for non-economic harm, which you can get into all the descriptives, which we do, or you're not. If you are, some people, they have a limit on what they want to award. They can't award more than a million dollars for a death. They can't do it. It's not within their wheelhouse. They don't believe in it. Others will award the amount that's commensurate with the evidence. That's it. Now, when you come to the next surgery, this isn't really anything that you can determine bias from. For me, I just want to educate myself on who is familiar with this surgery and what their experience has been with it, because as Dan said, it is a piece of information to take into consideration to determine who's a good juror or not.

(: 00:53:14

I want to know what their experience is with the neck surgery. If they know anyone, cared for anyone, had it themselves, et cetera, it's important to know. So with this, knowing that bias is going to come from potentially this Albertsons one, the car accident, the lawsuits, those three, and then the ability to award damages is a separate issue. It's going to be either they can do it or they can't. And then the particular harm that your plaintiff sustained is just educational. You want to get to know what they have. You want to get to know what the jury has had in terms of experience with this injury. That's what it is. That's the mechanics of it.

Dan Kramer (: 00:53:47

So you put this up and then what are you telling the jury? "Hey, these are the topics I want to talk."

Steve Vartazarian (: 00:53:52

Let's go through it. Now, I learned something from Harry, a long — maybe 10 years ago when we were doing a case together. And what I learned is don't ever ask a jury if they could be fair. And so I tell the jurors that as I go onto this next slide that I wrote down, "We're not looking for fairness." And I tell the jury, "Folks, if anybody asks you if you can be fair, everyone can be fair. Can we agree?" You would never admit to not being able to be fair for the most part because you want to do good. I could see everyone here is excited. They want to do a good job. They're wondering if they're fit to do this. Can they judge the evidence? I'm telling you that you can. "I'm not going to ask you if you can be fair. Instead, I'm going to ask you if you can be neutral before we begin.

(: 00:54:39

Let me tell you what that means." And then I move on. And then here's what I do that I don't tell anyone that I'm going to do. All of a sudden, I'll ask the first question. I'll say, "This case is against Albertsons. They're here. You've met their attorney, you've met the representative, and they're here because they have a right to defend against what I'm saying they did." And I'll have a little chuckle and that's how you start getting the confidence. I already know I'm going to win stuff, but so it came out naturally. Sorry, let me start over. I don't know why I'm laughing. I had this exact case and I kicked their ass so bad it was awesome. But you start, you said this case is against Albertsons, and the reason why I ask this, it's only going to take 10 minutes. I want to make sure that if some of you on this panel love Albertsons, it's the only store in the neighborhood.

(: 00:55:23

Perhaps you have a family member who works there, either in management or on the floor or whatever have you, or you have some ties to Albertsons where you're a little in their favor because they mean something to your life outside of these doors. That's what I'd like to know. So why don't we begin with that? Anyone here have any special ties to Albertsons? I'm like, "Bingo. Got you. Okay."

Dan Kramer (: 00:55:47

I tried a Home Depot case where Claire helped us pick the jury, and you got to believe some people were just in love with Home Depot. My dad would be a terrible juror.

Steve Vartazarian (: 00:55:54

I love Home Depot.

Dan Kramer (: 00:55:55

Yeah. No, Home Depot is great.

Harry Plotkin (: 00:55:56

In-N-Out, Costco, Home Depot. Yeah. Sometimes you just sue the most popular fricking company in the world. Right. So

Steve Vartazarian (: 00:56:02

Here's how we do it. Here's how we do it where you don't mess it up.

Dan Kramer (: 00:56:06

Yeah, I love this. I saw you do this at a PTA class we did.

Steve Vartazarian (: 00:56:09

This is great. So this is supposed to say voting for the injured person.

Dan Kramer (: 00:56:13

Okay. So describe what we're seeing here. We're seeing kind of a scale.

Steve Vartazarian (: 00:56:17

So what I've done, I drew a line from one end of the page in a landscape view to the other, and I have my five topics there from left all the way to right. In the middle of the line, I put neutral and I put a little segment there to identify neutral. All the way to the right, it says voting for person being sued. All the way to the left, it says, voting for the injured person. How we begin this jury selection where you are on point all the time consistently is you walk up and you'll say for those that could see this, I'm kind of circling around the neutral. I say, "Folks, in this area of Albertsons, I know some of you raised your hand and I'm going to ask you questions, but before I do, let me tell you, I don't mind if you're a little bit in favor of Albertsons.

(: 00:57:04

They're the person being sued or the entity. I don't mind if you're a little bit in favor of the plaintiff. As long as you're in this area here, we're okay. If you're over here, it's fine. I don't mind an uphill battle. A little bit of a challenge, it's fine, but we're looking for people that they have a special connection. If you start going into this range over here, I really want to know that and that's what I'm looking for. So ma'am, why don't we start with you? Juror number two, please tell me what special connection you have or what Albertsons means." "My mom worked there for 40 years. ""Okay. Is your mom, does she still work there?" "No, she retired and I take it Albertson takes... Are they still in her life? "Well, yeah, they pay her a great pension. "And did she send you to school with this career in Albertson?" "She took the best care of us and she put food on the table and she...

(: 00:57:56

"All these different things.

Harry Plotkin (: 00:57:57

Meanwhile, Steve, I'm writing down for you for cause. Juror is yelling when giving these answers. I'm just teasing. But sometimes they're...

Dan Kramer (: 00:58:05

Yeah. Let the record reflect she's yelling.

Steve Vartazarian (: 00:58:08

Yeah. This is an example of an in passenger where I was going to mean something to them. And so I say," Okay, ma'am, well, let me ask you, beginning from neutral, what I'm going to do is I want to know how much in favor you are of voting for them before we get started and before you even heard what we allege that they did. And so please stop me as I get close. So for people that can't see it, I am now dragging my cursor, which would be a marker in real court, down the graph, down the line. I'm like...

Dan Kramer (: 00:58:36

So you're holding... Let me just be clear here. So you have these topics, and then do you write this line in real time? Yes. Okay. So you write this down. Did the judge allow this? You got objected to?

Steve Vartazarian (: 00:58:49

No one says anything about it, but you can't write this at the inception. You can only write the words. Once they start expressing bias, you kind of feign an ignorance of how to measure it. And so you say, "Hey, let me draw this little line and ask you this." And as you're doing it, it seems fair, so no one says anything. It's great.

Dan Kramer (: 00:59:08

Wow. So you have this line, you have on the left, you have voting for the plaintiff?

Steve Vartazarian (: 00:59:13

Yeah. Voting for the injured person.

Dan Kramer (: 00:59:15

And then voting for the injured person. So then on the right, you have voting for the corporation or the defendant. In the middle, you have neutral. A juror says they like Albertsons, so then you're with your pen, you then go towards the corporation or the party suit, and then you say -

Harry Plotkin (: 00:59:30

Show me where on this line you are. Yeah.

Steve Vartazarian (: 00:59:31

What I'll do is I'll drag this over and I'll say, "Ma'am, tell me when to stop about how strongly you feel." And she'll be like, "Well, you could stop right about there." I'm like, "Right here? Yes, you can stop

Dan Kramer (: 00:59:41

There." And that's what, like 75% of the way towards... Right.

Steve Vartazarian (: 00:59:44

It's about 75%. And so what I'll do is I'll put a little mark here and then I'll put juror number two and I'll write two right where they told me to stop. Okay? And then on my notes, I'll put two Albertsons so I know they Press biased about Albertsons, not the other ones, because after an hour you may forget. And so

(: 01:00:05

What I'll do is I'll say, it's right here, right ma'am? Yes, yes. My bias, I am that much in favor of Albertsons. And I say, and that's based on the nice things that you told me. And it's okay to ingratiate the defendant a little bit. It's fine. It's fine. They'll find out how much of a POS they are later. It's all good, hopefully. And I say to them to make sure that they don't come back and get rehabbed, because that's what the judge and the defense is going to do. You could be fair, right? So I do it in a way where they don't even fricking try anymore. And I'm like, and you're going to be asked whether you're a fair person and you could follow the law and you can always be fair and follow the law. Can we agree? Yes, I can do that.

(: 01:00:41

But when it comes to your feelings, thoughts, what Albertsons means to you, you've told me how much you are already in their favor based on 40 years of having Albertsons in your life. And this is how much you would vote for them even before you heard what they did. Is that fair? You'd be in their favor this much? Yes, sir. Perfect. Anyone else? I'm like, okay, great. So not to belabor the point. And now why is this beautiful in terms of a dynamic for plaintiff's lawyer to do? Because your first question is not going to call for them being in favor of the plaintiff. It's only going to be for the defendant. So you begin with these kind of setting up challenges for cause and so on.

Dan Kramer (: 01:01:26

Have you ever had the defense attorney get up here and use your same scale and put - Sometimes

Steve Vartazarian (: 01:01:29

They like it. They like it. But let me say this, Dan, about this. Don't be an underhanded snake.

(: 01:01:35

Do you know what I mean? Don't try to use this to somehow advantage yourself, to somehow use it to begin to convince and do weird shit. Don't do that. Use it fairly. Use it in a way where you're just using it as if it was the defense. They're worried about jurors in plaintiff's favor before they get started. I'm worried about the opposite. This is a neutral tool that if used in good faith can really be effective. Let me tell you why. Later on, when you start arguing challenges for cause and they object to juror number two because they got up and they said, oh, they tried to rehab juror number two, what I do. Well, counsel, they said that they could be fair. I'm like, Your Honor, we're out in the hallway or we're in chambers. Here's what I do. I go get this chart and I bring it in and I make it part of the record.

(: 01:02:28

And I say, Your Honor, not only do we use words, we actually charted the extent of juror number two's bias in favor of Albertsons. And I'd like to attach this as an exhibit to this transcript, whatever it is, exhibit whatever number.

Dan Kramer (: 01:02:44

So Steve, this is solid gold stuff here, but I do want to hear how you do, in the interest of time, how you do the damages on this.

Steve Vartazarian (: 01:02:50

Sure.

Dan Kramer (: 01:02:51

Millions of dollars, all that stuff.

Steve Vartazarian (: 01:02:53

Absolutely. Yeah. Great question. Yeah. I know we're running out of time because we talked about so many things, but I'll run through this very quickly. Car accident's the same. I get some people who say, well, I was rear-ended and they didn't pay me anything, so I'm kind of in the favor of the plaintiff. And if you truly see that they are, mark them down as you did here for juror number two in favor of Albertsons. Do the same for the damn, you know what I mean? For the plaintiff, even if it's against, just do it. They're going to get off anyway. And that's how you begin to establish credibility. And the judge likes it too. They're like, damn, Varian's doing effective voir dire for both sides. This is a great time saving tool. And then they write an article about the fact that they told me they were going to.

(: 01:03:35

So car accidents. How many of you have had experience car accident? Yes, yes. Bad experience, good experience. I rear-ended somebody. It was fraudulent. They got up holding their neck even though it was a bump. That probably happened in Glendale. Just kidding.

Dan Kramer (: 01:03:47

Only you could say that, Steve.

Harry Plotkin (: 01:03:49

More apologies coming.

Steve Vartazarian (: 01:03:50

I do the same for... You may want to cut that part out. I do the same. No, I'm just kidding. I don't care. I do the same for lawsuits. How many of you have been sued? Yes. Bad experience? Yes. Do you side with the defendant? I do. I am more prone to them because I could see them sitting there and they're worried about the same things I was worried about. And so I feel bad. I empathize, blah, blah, blah. I can't be fair to the plaintiff. My plaintiff guy sued me, was an asshole. Boom, boom, same thing. So those are the three where you use this chart, period.

Harry Plotkin (: 01:04:14

Let me point out why that's so important, I think, is that I found a lot of times when you have a real strict judge and you get someone to say, "Yeah, you're a little bit behind," or whatever, it's very easy for them to say, "Well, that's nothing." And I had some judges even say, "Have guys seen this where judge says," Well, that's actually what the law says because you have the burden of proof so you actually do start behind. So there's nothing wrong with that. "When you put some numbers on it, sometimes I'll say," If you're supposed to start at the 50 yard line, how far back am I? "If they say like," Oh, you're at the 49, "probably not. But if they say you're like," Keep going. "Or I've had lawyers, I said," Get up there and say, if this is the starting line, tell me what I'm...

(: 01:04:52

"And they start backing up physically. Tell me how far I should go. And I've had jurors say," You might need to leave the courtroom, buddy. "When they say that, they put real numbers on it. You're a lot behind. Judges really can't say anything. They're like -

Steve Vartazarian (: 01:05:04

For me, I got sick of doing the, tell me you know this, that and all. Now I can write it down. I'm like," Here we are. Why not do this? This works. It's quick, it's effective and et cetera.

Dan Kramer (: 01:05:14

"I don't know anyone else doing this. I'm kind of surprised. Harry, do you see this? I mean, I don't...

Harry Plotkin (: 01:05:18

I've never seen -

Steve Vartazarian (: 01:05:19

It's

Harry Plotkin (: 01:05:20

Really good, right? A lawyer. I'll tell you a story that's totally off topic, but the only time I've ever seen a lawyer show something to a jury during jury selection was, this is like 20 years ago, I'm doing ABOTA master's in jury selection in Tennessee and there's this Southern lawyer, he's pretty funny. This is what he says he does. He puts up a thing on the Elmo and he goes," Does anybody know any of my partners? "And he puts up a little thing and he's got three partners. And then he goes," Okay." then the other side's a big Law and he goes," Does anybody know any of the partners of the defense lawyer? "And there's a thousand names on it. So that was the only thing. That's pretty funny.

Dan Kramer (: 01:05:52

I like that.

Harry Plotkin (: 01:05:53

And he's like," I've let judges do that. "I like that too. But other than that, no, I've never seen it. And that's awesome, Steve, that you... I love that you push the boundary and push the envelope because some things are totally fine just because they haven't been done before.

Steve Vartazarian (: 01:06:05

But look, again, the ground rule is good faith, neutral. They can use it too, so on and so forth. Okay. So that's what I do. And then I'll go through, as I mentioned, I'll ask about car accidents, how they feel about that. It's super easy. Why? You can't get lost using this method. You can't. You always have your topics to come back to, and you know with respect to bias, Albertson's car accidents and lawsuits can be charted here. Now, what can't be charted here? The neck surgery. So with respect to the neck surgery, I will simply ask, in this case you've heard, et cetera, et cetera, the judge read to you, there's a claim for how many of you have had experience with neck surgeries? Very standard boilerplate. Why do we ask this? We ask this just... We want to know... I mean, the thought is that if somebody's had a similar injury, they can't be fair to the plaintiff, especially if that injury or that surgery was caused by their own doing and they weren't able to hold anyone responsible and get money for what they had.

(: 01:07:06

Those people can be problems. Other people, you want to know. If a daughter cared for her mom who was recovering from a three level fusion, you want to know that because they know what the person went through. That's a good juror, I think. It depends. Again, everything depends, but you want to just get an idea of who had an experience with this injury, number one. And number two, what was that experience and what caused it to come? That's it. Just take that information, you could do whatever you want with it. You can use it to make decisions. Now, let's get to the money as they say. When it comes to the ability to award damages, I've seen people go on and on and on and on. Here's what I do now. I do this. I have this one too set to go and I put it up.

(: 01:07:47

Sometimes I'll get clearance for it. Sometimes it'll be behind.

Dan Kramer (: 01:07:52

And what is this? Describe what you're

Steve Vartazarian (: 01:07:54

Showing. Yeah, so I'll show it to you. So by the way, as they see that you're using this exhibit that we just went over fairly and in good faith and transparently, they'll trust you to use more things. That's how it works. If they see that you're legit, they'll trust that you're going to do something legitimate with your next one. So what I'm showing you now, it simply says ability to award money for harm. That's it. And I have it underlined. And then I have two bullet points, the first of which says can do it. The second of which says can't do it. And so I tell them, I say, "Folks, we've come to a part where I'm here for money. It's no secret. I'm going to ask you to compensate plaintiff." And you could use any variety of phrases or terms or whatever. I'm just cutting to the chase here.

(: 01:08:37

And at the end of the case, if I'm able to prove that such and such is liable and they did something that was negligent or they shouldn't have, that caused this injury and you hear about how horrific it is, which you're going to hear about. We heard juror number six talk about her mom's recovery. It's going to be similar to that, except it's a little worse because it was caused by an actual accident. I'm going to ask you to award money to compensate them for things like, and then I'll go through the human harm. I don't like the pain so much. Some of them say, "Is this pain and suffering?" I say, "Yeah, it is. You hear that phrase, but that phrase is unfair for me to use here because it's so much more than that." And then I tell them the other words, anxiety, loss of enjoyment of life, disfigurement, all these different things, emotional distress, all these different things that are on there.

(: 01:09:29

I have a list and I read the ones that are applicable from in California KC3905A, and I'll tell them that's what it is. I want to ask you folks, some people believe that using money to compensate for these forms of losses as I've described is appropriate. If you turn your head and you feel pain, that's going to happen every day for the rest of your life, you should be awarded money for that if the defendant caused it. Some people feel money's not going to do anything. It's not going to make the person better, et cetera. You guys all know the spiel. And if you don't, you can find it anywhere. It's all the same thing. So I ask, first, I'd like to see a show of hands of those people that can award money and are willing to and have no problem using money because that's what we have in our civil justice system.

(: 01:10:14

We used to do, if you take an eye, I'm going to come and take your eye. Not me personally, but that's what I heard they used to do hundreds of years ago. They get a chuckle out of that or a tooth for a tooth.That's where those phrases come from. But in our civil justice system, if some harm comes to one of us, we don't go to the person's house who caused it and instill the same harm. Instead, we get them to compensate that civil system of justice so that we all get along and there's no violence.

Harry Plotkin (: 01:10:39

I mean, we sue UnitedHealthcare is the humane way to do it instead of what we saw a few days ago, which is insane. I mean, that's one that hits home run. If I was picking a jury right now, I'd be like, I don't know. I might even bring that up like that's not the right... We don't do that.

Steve Vartazarian (: 01:10:53

If they know about it, it's a good example. So I ask, how many of you can do it? Great, great, great, great. Thank you. Thank you. Now, juror number seven, nine, and 10, did I get that correctly? You did not raise your hands. So I just want to confirm. I'll say something like, "Can we confirm that it's not something that you can do? You can't do it. You don't believe in awarding money for this type of harm. If you agree with me, raise your hand." Boom. Great. Now, from here, you don't want to screw up that concession. You got to be very careful with that because at any moment, "Well, I guess I can do it," and then your cause is gone. And so how to handle that, it's a completely different thing, but the logic is that you want to lock them into that gently, slowly, with a couple phrases.

(: 01:11:41

I would say, "Harry, how would you..." I mean, I have my way. I would say something like, "All right, thank you. Thank you for that. I really appreciate that. That's one of the nose hairs. I'll bring it back to that. I'm happy you told me that. Now let me ask you just a couple questions to confirm." And even right now, I don't even know what I'm thinking, but I feel like I have to ask them something to lock them in, right, Dan?

(: 01:12:05

You can't

Steve Vartazarian (: 01:12:05

Just let it go. You got to cement it. So I'll say, "Can we agree that the opinion you just expressed, your unwillingness to give money for these types of harms is something that you formed, not just today, but it's a belief. This concept is a belief that you've held for how long would you say?" And then I'll throw it back on them to get them to commit to a long period of time. And typically, well, five, 10 years, I've heard about these lawsuits, this, that, I think it's bullshit, blah, blah, blah. So can we agree, juror number seven, that for the past 10 years, you've held the belief that awarding money for things like physical pain, even though caused by somebody else is not something that you'd be willing to do in this case? It's not something that you believe in. Can we agree to that?

(: 01:12:47

Yes. Now, you're still a fair person and you can follow the law, right? Yes. But awarding money for this type of harm, can we agree that I'm not going to change your mind and get you to do it in the next two seconds given you've held this belief for 10 years? Can we agree? Yes. And any other thing you could come up with to lock them in? I leave it at that. Sometimes if I have another creative thing I can ask if they said something at the Albertsons question, I got some more info, I can tie that in if I remember it. And then that's it.

Harry Plotkin (: 01:13:15

Let me throw in my two ways. I want to hear yours too, Dan, but I want to go with different ways because jurors... I mean, lawyers love ways to lock... Yeah. One way that I do it, there's kind of two things that I do. One of them, and the most important one is, and you kind of did it really well there too, Steve, is how do you make it so that even when the judge comes in there heavy-handed and tries to rehab them, they're not going to budge. And the way that I do it is to say -

Steve Vartazarian (: 01:13:38

The judge is going to ask

Harry Plotkin (: 01:13:39

Him. Yeah. Well, I don't even do that. I just say, "So is what you're telling me that even if you try your best to ignore that, set it aside that you're telling me, even if the judge... I'm still going to struggle. I probably can't even do it, even if I'm trying my best." And if they say, "Yeah, that's what I'm telling you," then what's the point of trying to rehab them? I'm going to instruct you. And then they'll say, "Well, like I told Mr. Bartazarian, I'll try, but I just don't think trying's going to get it done." And then the judge is like, "Oh, okay."

Steve Vartazarian (: 01:14:07

I used to go that step further, make it 100%. I don't do that anymore because if you use... Again, Harry, you know better. I mean, you're a jury consultant. I'm not, so I don't know. I'm just telling you based on my experience, when I couldn't help myself and I went in for the kill, well, I don't know if I can never do it. You know what I mean? I don't know if I

Harry Plotkin (: 01:14:31

Can... I wouldn't say never. I would just say, are you telling me that even if you try your best, you think it might still be a struggle and you might not be able to do it? And then they kind of go, "Yeah, that's going to..." So yeah, you can't be like, "You'd never be able to do it."

Steve Vartazarian (: 01:14:45

As soon as you get something like that and they're like, "Well, I didn't say... It's not that I think I can." And all of a sudden the defense perks up, they're like, "Got you, bitch." You know what I mean?

Harry Plotkin (: 01:14:55

Right.

Steve Vartazarian (: 01:14:55

Yeah. They wake up from their nap, they're like, "Oh, no cause there." And they go, first thing they do, they rehab that juror as soon as they get up. Yeah.

(: 01:15:03

So here's what I do. I say thank you all for the people that express their unwillingness to do it. I understand. And that is an appropriate belief and I thank you for sharing it with me. Next. Last question, folks. For those of you who can award money for the type of harm, I'd like to ask you this. For those of you who can do it, some of you may say, and I have a writing here, it says two bullet points, "I'm not willing to award more than X," and there's a blank line that I've drawn there. The second bullet point that I've labeled B, "I will award whatever I feel is appropriate based on what I think of the case." You could phrase it however you want based on what I think of the harm. Yes, yes. Now remember, to get away with this, you have to show that the things that you've done before with the writing, all the things we went over this afternoon, you've used it appropriately and fairly, that there's nothing weird.

(: 01:15:58

You didn't try some weird plaintiff's bullshit, crazy magic trick and try to trick people. You used it appropriately. And so I tell the judge, I'm like, "What better than just to ask them this?" For those of you who are able to do it, some of you may say, "I, for the life of me, I'm willing to award money. We just went over that, but I cannot justify in my mind giving more than a million dollars for any type of injury. I make $14 an hour, blah, blah, blah. I can't." That's the thing. The first people that I get off jurors are service people because people that are in the service industry are shit on all day long. Janitors, bus drivers, waiters, for me at least, they scare me. They've always been the worst. But you would know better than me, Harry. I'm guessing. I don't know, but this has been my experience.

Harry Plotkin (: 01:16:48

It depends. There's certainly some that feel that way and there's some who are totally the other way. There's some people who they just hate corporations and they're like, "No, it depends. I'm on board anytime that we go after them." As long as you frame the damages as this is what it's going to take to hold this company fully accountable for what they did. But you got to talk to them. You got to say, "Hey, for those of you," and I always like to voir dire on, "If this is more money than you think the plaintiff would ever make in a lifetime, is that ridiculous or should the amount of money be something that's not ridiculous to a company? Or is quality of life worth way more than we could make? What do you think?" And the badgers who work in retail or minimum wage ones will say, "No, a person should..." I mean, that's ridiculous to give someone more than they would ever make, but the good ones will be like, "My quality of life is worth way more than my paycheck." So it depends.

(: 01:17:37

You got to kind of ask them.

Dan Kramer (: 01:17:38

So Steve, I mean, I imagine that you have a multi eight figure ask that you're going to do 20, 30, 40 million dollars. When do you introduce that concept of many millions?

Steve Vartazarian (: 01:17:48

So I'll talk about that here in a moment. So this jury selection method that we went over this afternoon that I'm using, the purpose of it is it's so simple. You're never lost. You have a roadmap. You know what you're doing. It's effective. Judges like it. The defense uses it and it gives you all the information you need. And so lastly here I'll ask, and I'll put it on them. I'm not willing to award more than... And I'll say, "Can I see a show of hands that for people who are not willing to award a certain amount for any type of physical harm or all the items we went over? And if so, when you raise your hand, I'm going to ask you what that amount is." "I wouldn't give more than a million dollars." I'm like, "Okay, great. So for you, even if sir, even if you believed in your heart and the evidence came out through the doctors, the plaintiff's testimony, whatever words you want to use, that this harm you believed was worth three and a half million.

(: 01:18:40

I'm not saying that that's what it is. I'm saying hypothetically, you still, even though you wanted to give three and a half, you wouldn't give more than a million because you just don't feel that it's appropriate. Can we agree?" "Yes. "Great. Okay. Anyone else have numbers that they wouldn't award more than or? And when I see a hesitation with a show of hands, I'll ask people," Do you have a number? Do you have a number? "And then I'll say," For the rest of you, I would like to see and confirm a show of hands for people that are willing to award whatever they are comfortable awarding, whatever is appropriate based on what they hear, and they'll know that at the end of the case. How many of those do we have? "And I'll see a show of hands. And then I'll say something like this," In this case, at the end of the trial, I'm going to ask you for an amount of money, but I want you to know we did not sue for a particular amount.

(: 01:19:28

I left it completely up to you. "And they love that. They love that. And I will say that when I hear someone talk about lawsuits and say," Such and such sued for $80 million and that was bullshit. "I come back and I say," In this case, we didn't sue for a particular amount of money. I leave it completely up to you, whatever you think is fair. "And they love hearing something like that. So Dan, when do we do it? Well, okay, so I'm going to stop sharing my screen so we can discuss that very important issue. When do you tell the jury about how much money you want in the case? Well, I will tell you that's really up to you. There is no book from the 80s, 70s of what people did and you're supposed to do. Well, there is a book. The book says you're supposed to tell them immediately.

(: 01:20:11

Exact

Dan Kramer (: 01:20:12

Amount. Yeah, the exact amount. Yeah,

Steve Vartazarian (: 01:20:14

You're supposed to... That's what the textbook... Well, let's talk about it for our listeners. Textbook is your first opportunity to tell them, you tell them. Why? The idea and logic behind imparting the ask early is to anchor, right? They don't want sticker shock at the end to get them comfortable with the number so that they know it's a serious case. Some of them don't know that. If you try a case and then at the end you ask for 50 million, like, what the fuck? You don't want to have the WTF reaction. So there's a variety of different reasons as to why you should do it. Again, that's textbook. What I do, I don't follow the textbook.

Dan Kramer (: 01:20:54

Shocking. I'm shocked by this, Steve. I am shocked.

Steve Vartazarian (: 01:20:59

You can do whatever you want. I'm going to do what I want. Now, here's what I do. For me, it all depends. Let me give you some examples. If I have a slam dunk $30 million case, I'm going to tell the jury this case is worth 30 million. I'm going to ask for it immediately. I'm going to tell them, Hey, this is what I'm going to ask for. But I do it in a very strategic and in a poised way. Let me tell you how. Oftentimes, defense attorneys are scared shitless of you asking for an amount of money in voir dire. Folks, I'm going to ask for 50 million at the end of this case. Would anybody be uncomfortable awarding it if they believe it was worth 50? So they file motions in limine to tie your hands and prevent you from imparting numbers in voir dire because they're afraid of it.

(: 01:21:39

My thought is, if I'm a juror and I heard some asshole ask me for 50 million before I even heard what the case is about, guess what, pal? You're not getting 50 million. I'm going to start like this. Okay. So that's a turnoff. Myself, I feel like if I'm going to have a big ask like that, if I'm allowed to say it in voir dire, I better have a good reason. So for me, we say, Dan, millions and millions is appropriate. Judges allow millions and millions and leave

Dan Kramer (: 01:22:11

It at that. Not all.

Steve Vartazarian (: 01:22:12

Not all. I don't care. The point of voir dire is not to impart the number. It's not important. I have not spoken numbers in voir dire for long for years

Dan Kramer (: 01:22:21

Now. Me too.

Steve Vartazarian (: 01:22:22

Because I realized, I'm like, it's not

Dan Kramer (: 01:22:23

Important,

Steve Vartazarian (: 01:22:23

Dude. They don't care.

Dan Kramer (: 01:22:25

It's also risking your credibility, I think when you -

Steve Vartazarian (: 01:22:27

Risking

Dan Kramer (: 01:22:28

Your credibility. You want to jump it down. You've earned that yet. You've earned the right. Yeah, you haven't earned

Steve Vartazarian (: 01:22:31

That. So here's what I do. Now, I got two choices. In opening statement, either I'm going to say it or I'm not going to say it. When am I going to say it? If I have a clear case and I laid it out in opening and it's clear, if they have a $2 case, I have a $10 case and I'm asking for basically $10 or maybe a little bit more in the closing, I'll up it. I'll say, "I don't think I asked for enough." And some of the jurors will be like, "I agree with you." So I'll purposely say a low number, knowing a week later I'm going to ask for double. But if I have a good case, I feel good. I focused it. They're contesting liability. It's not complex. I can't get in trouble with my credibility. I'm not going to offend anyone.

(: 01:23:11

At the end I' say, "And ladies and gentlemen, that's the reason why at the conclusion of the trial, I will be asking you to award somewhere in the 30 to 40, 50 range, less or more, whatever you feel is appropriate. That's what I'm going to ask you to do, and I'm going to spend the next week making you feel good about doing that by proving the case. Thank you." And they don't even get a chance to object because I'm done already. So that's when I'll do that. However, if I don't know, which I know this kind of goes against the logic of what I laid out in the beginning, if I'm not sure what's going to happen, I've had focus groups go different ways based on in limine rulings and I don't know how it's going to go down. I feel good about the case, but it's a crazy liability case.

(: 01:23:55

Governmental liability cases, product liability cases, complex cases where we focus grouped and we got varying results. In those cases, I wait. I wait because I'm not sure if I'm going to win or not. I'm hoping that I can put on all the evidence and based on how it goes, I can adjust the amount of the ask. But if you ask for $50 million on a marginal liability case, it's kind of scary to me. I don't want to be behind that bullet while the case is pending. That is risky. You're not supposed to do that. You supposed to give them the number. I acknowledge that, but sometimes I don't say anything and I end up getting a hundred million dollars in all these verdicts. I didn't ask for a lot of money in the beginning. Some I do, some I don't. So again, just do what you want to do.

Dan Kramer (: 01:24:41

But you got to bring up millions in voir dire.

Steve Vartazarian (: 01:24:43

100%.

Dan Kramer (: 01:24:44

Yeah. You have to mention -

Steve Vartazarian (: 01:24:45

Every

Dan Kramer (: 01:24:46

Time. Millions. Yes.

Steve Vartazarian (: 01:24:47

Millions. So here, absolutely, you must. If you don't do that, then well, you're going to do it. So here's where I do it, Dan. When it comes to moving on from the things that we were talking about, when it comes to this ability to award damages, here I ask. At the end, I will begin with that. I will begin with at the conclusion of the trial. I point to these things. If I'm able to prove that Albertsons did something wrong in this incident that caused this need for surgery and it resulted in a lot of harm, we're going to be asking for millions and millions. We'll get to that later. I want to ask people about... You can couch it in any way. I want to make sure that you are all comfortable. But what do we talk about here? We'll go through the items of non-economic harm.

(: 01:25:38

That's what I'm saying. We'll go through those items. I want to make sure that in these areas you would be willing to award millions and millions. But yes, absolutely. No doubt about it.

Dan Kramer (: 01:25:46

We got to wrap here soon, but Steve, I want to just real quick, you say you go through each of those. I mean, sometimes there's like nine, I think, items of non-economic damages, anxiety, mental stress. I'm drawing a blank on them. They're

Steve Vartazarian (: 01:26:01

Not all applicable. Usually we take out the ones that are not at

Dan Kramer (: 01:26:05

Play. But you bring those up. For

Steve Vartazarian (: 01:26:06

Instance, disfigurement. If there is no scar, I'm not going to include

Dan Kramer (: 01:26:09

That. But you bring those up in voir dire each separately?

Steve Vartazarian (: 01:26:13

Absolutely. Every time.

Dan Kramer (: 01:26:15

How do you do that quickly?

Steve Vartazarian (: 01:26:16

Here, I'll show it to you.

Dan Kramer (: 01:26:18

Let the record reflect he's opened up a book, an actual textbook.

Steve Vartazarian (: 01:26:22

It's Casey.

Dan Kramer (: 01:26:23

The actual law, the legal instructions, the jury instructions.

Steve Vartazarian (: 01:26:28

So what I'll do in any given case, look, sometimes you have a wrongful death. A lot of cases I try wrongful death. So they all have their own items of non-economic harm and they're listed in the jury instructions. So for instance, when I get up and to ask for their ability to award money for things that we can't touch, and I know I learned this from Harry a long time ago, human harm, right? Not pain and suffering. Is that pain and suffering? Yes. Juror number three, some people do refer to it as that on the streets.

(: 01:27:00

I say it, but what it really is, it's compensating for human harm. Let me tell you what those are in addition to physical pain and mental suffering. You just hear pain and suffering, but it refers to physical pain and mental suffering, but it's so much more than that because the law recognizes loss and it values harm that occurs to human beings, our kids, our families. In this case, Mr. Such and Such's wife who no longer has the ability to blah, blah, blah. And then I'll say things like loss of enjoyment of life. You're going to hear she's no longer able to run and she was a marathon runner. That was her... Things like that. I mean, that's a very brief example. Disfigurement. There's a scar going down all the way down her back and she loved wearing backless dresses at the ball every year at the policeman's thing and she used to go with her husband and she no longer does that through out of embarrassment, blah, whatever it is, and she doesn't want to look at it.

(: 01:27:55

Things like physical impairment.

Dan Kramer (: 01:27:57

But what's the question then? What do you ask about that?

Steve Vartazarian (: 01:28:00

Well, if you want to tell them about the specific items of non-economic damages that would warrant your asking for millions and millions other than pain and suffering, you can begin telling them what they are. You can just read them off. Loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety. Humiliation is a big one if the case facts call for it, and emotional distress. And I mean, this instruction, I'll show it to you here if you can see it for the people that are listening. It also says, "Insert other damages." And so you could take advantage of that. If there is a specific harm that's not included in those that we went over, you can get creative and put that in there. Whatever it is, you could put loss of... Doesn't have a leg anymore or some general, generic thing, whatever you can come up with that the judge will let you get away with, you can also include that.

(: 01:28:53

So when you ask for the ability to award the millions and millions you're going to be asking for, for these non-economic harm items, it doesn't hurt to outline what they are in addition to pain and suffering because you could take a moment and you can ease back with a lower tone and you can give some emotion to those words and they start meaning something. That's important.

Dan Kramer (: 01:29:14

So I understand that you're introducing that and you tell the jury that, but what's the question that you're asking the jurors in jury selection when you bring that up? Are you saying, "Can you award money?"

Steve Vartazarian (: 01:29:25

Yes. So you select the appropriate items of non-economic harm based on the instruction we just went over. You let them know that you're going to be asking for millions and millions, I think is in the exercise we were doing. And then you tell them what it's going to be based on. It's going to be based on these particular items of Mrs. such and such is not able to... And then you can get into the pain if you want to. You don't have to, but to answer your question responsively, it would be an articulation of where there are deficits in those specific subjects that would warrant the awarding of millions and millions if they held Albertsons liable and they found causation. Or something like that. So

Dan Kramer (: 01:30:02

You have a lot

Steve Vartazarian (: 01:30:03

Of options. It just depends on how you want to do

Dan Kramer (: 01:30:04

It. Steve, I mean, I could keep going another three hours here, but - I think we've covered it all. Dude, I think this is solid gold. Jury selection is so hard, and this is why we wanted to do this podcast, Stephen. We're so thankful you're one of our first guests here, because there really is nowhere we could find... When I was a young attorney up and coming trying to figure out how to do this, there was no place to really learn how to do jury selection. And the stuff you just shared, it really does just make it so simple and really just bite size for the jury. Such a complex, hard area of trial practice. You make it, you synthesize it so simply that we could all learn from. I mean, I'm just learning so much and I'm going to incorporate in my next trial here next month that is just fantastic, man.

(: 01:30:51

Thank you. I think

Dan Kramer (: 01:30:51

You're doing things in an innovative way that no one else is out there. And it's almost like anyone can use this and be successful at it. And I really appreciate you sharing all this, man.

Steve Vartazarian (: 01:31:02

Absolutely. My pleasure. Thanks for having me. Thank you for giving me the opportunity to share it. It took a long time to come up with these concepts and I hope people benefit from it.

Dan Kramer (: 01:31:11

Yeah, brother. Dude, I appreciate it. Steve is one of these guys that he'll pick up your call anytime, loves helping out attorneys that have never done it before, experienced attorneys, attorneys that think they know what they're doing. Steve, he helps me all the time in so many of my trials and I always appreciate it. I know you're always out there to help any attorney out there, man. Absolutely. So I appreciate it. Everything you're doing out there is fantastic. Harry, any final thoughts here?

Harry Plotkin (: 01:31:38

Just to say, love you, Steve. You're one of the best ones. The thing I love about Steve too that I don't even know if Steve is aware that he does well, but he does it so amazing is just the way he talks to people. You don't want to sound like a lawyer up there. I mean, I think you talked about reading textbooks. The defense lawyer is the guy who looks like you wrote a textbook and you want to be the guy who can relate to the jurors. And so talk to him on their level. Steve is amazing at this. Steve, we talked about this at the beginning, just talking with people. I mean, if you can talk to somebody at a restaurant or at a bar or anywhere else about your case the same way you would in a courtroom, you're doing it right. And so I think it's just incredible.

(: 01:32:14

Right.

Steve Vartazarian (: 01:32:15

And I'll leave you guys with this. I think having the ability to really care about human beings helps you talk to them as human beings and be genuine and authentic and so on. And so what I challenge people to do is you got to care more about the people that you're talking to than yourself. You have to care more about the plaintiff than the outcome and the money. And what I would tell people to do is you want to know how it feels to care about somebody and the rewards and all that. Go out and for absolutely no reason whatsoever, do five nice things for totally random reasons, two, three people you know, two, three people you don't know. I keep doing that in practice and it just makes you more of a human being. And when you look at people, you just really care about them.

(: 01:33:05

And that comes across even when you're conducting a voir dire, they could really tell that you care and when you listen to their answers and so on. And just connection with people I think is what has been somewhat a good part of my success. So thank you for letting me share that.

Dan Kramer (: 01:33:20

Well, this is great, man. Cannot thank you enough. We got some great, some of your close friends coming up who are going to speak, Ars Hamapur, Eber Sec, Bob Simon, Lourdes Darmis, Joe Fried, Dale Gillipo, David Robertus, Gary Dordick, Nick Courtney Rael. I mean, we got Murderers Row coming up, Harry.

Steve Vartazarian (: 01:33:38

Man, I'm happy I got to go first. It's a privilege. It's an

Dan Kramer (: 01:33:42

Honor. Yeah, man. We're really excited. We really hope this podcast reaches a lot of trial attorneys who are nervous about picking a jury. We really hope, I know Steve's so inspiring and really helps them figure out their way in the courtroom and helps their clients at the end of the day.

Steve Vartazarian (: 01:33:57

So thank you. Thank you guys. Thank you guys so much. Hope you have a great weekend.

Dan Kramer (: 01:34:01

All right. You too, man. Take care.

Voice over (: 01:34:03

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're picking justice produced and powered by LawPods.