Most trial lawyers walk into voir dire with a script and a checklist. Throw both out, says Mel Orchard of the Spence Law Firm in Wyoming, a member of the Inner Circle of Advocates. He opens instead by asking jurors whether anything affected them on the way in that morning — then stays silent for a long time. Talking with hosts Harry Plotkin and Dan Kramer, Mel explains why preconditioning doesn't work, why he no longer lets the panel debate the case in real time, how a personal share draws the poison out of a tough case, and how he preconditions jurors to tens of millions of dollars in voir dire using David Ball's framework.

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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.

All right, welcome back to another episode of Picking Justice. I'm really excited for this one. First, Harry, what's going on, man? I'm in a little trial lull here. It's been about a month and a half since I've been in the courtroom. What about you?

Yeah, I have two cases, two juries of mine closing this week, but last few weeks I've just had cases settling and judges just bumping things for no reason. Well, I'm curious to hear what Mel has to say, our guest this week, but I've heard that other venues, it's not as bad as California in terms of, maybe it's because it's not as bad a backlog and the judges don't have PTSD from how many cases they have, but -

Before you answer that, Mel, let me introduce you first. We have the great Mel Orchard here from the Spence Firm in Wyoming. He tries cases throughout the country. Many of you have actually been requesting him and have heard of him. He really teaches, from what I see from the outside, we've never met, but he really takes a lot of pride in teaching lawyers how to be better lawyers and better people. And I see your name on lots of different listservs. You're always giving great advice. Always make sure to save it. He's also a member of the Inner Circle of Advocates, which is the 100 best plaintiff lawyers in the United States. It's not one of these bullshit awards either. It's legit. It's real. You can't pay to play. So he really is one of the best here. We're excited to learn about jury selection. So with that, I know you try cases all over, but are you finding that you're able to get out and try cases?

I just got bummed from a trial. We had a trial in Des Moines, Iowa, and it was set for two weeks. And the defense moved the last minute to have the trial continued. Said we finally have some money and the insurance company's playing ball on gee, these are difficult issues and this is a complex case. And it was a baby judge. Seven o'clock at night on Friday, the judge granted the continuance. And my co-counsel, they were like, "How can you be so calm about what just happened?" And I just said, "I have to give control over things where they belong. I don't have any control over these moments. And so I can't get upset about things that I have no control over. And if I do, I'm wasting a whole lot of energy. We'll find another date. We'll find another way to try this case.

I started a jury trial in 10 days and big truck crash case." But to your point, I was set for trial in California and it was years. The backlog was incredible. But in Iowa, you can get a trial times in federal court in Wyoming, you can get a trial in a year. In Utah, it's a year and a half. Arizona, it's a year to a year and a half. So there are places where the backlog is not that bad, but there are places where it's bad.

Let me jump in there. I find one of the things I struggle with a lot is things we can't control such as, and let's bring it back to jury selection. The judge takes a long time or there's jurors that things are not going timely and it feels like jury selection is going to get boring and it's going to take too much time and the jurors are then going to get mad at me and all that. I struggle to just say jury selection, I got to have my goals. I got to control what I can control and put out all the noise. I mean, how did you get to that point? And what's your advice for those of us that do stress about jury selection, things going out of our control, and then we don't. How do you bring it back to what you have to achieve?

Well, I think it's just acknowledging what is and enough times of having failed to control anything. And then when you're out of control or you recognize you don't have control, it allows the jury to be enlisted. They're enlisted to do something. It's why a lot of us talk about it. I saw some of your previous guests. You've had some real superstars on here, some people that I admire and learn from and have taught with and created with, and it's really wonderful. But one of the common themes is the vulnerability. It's not feigned, it's real because we truly have no power. I've said this to juries in closing. Guess how many jury trials I've tried? Tons. Guess how many times I've decided anything? Never. I'm in awe of what you do because you get to decide. All I do is fight for people I love, try to present an honest story as best I can, and then give this to you.

And I sit back and wonder in such awe of what you can do. So I mean, I think that the acknowledgement that we don't have any control and being okay with that is just like being okay that we're walking on the earth and breathing air because it is what it is. But it's our own ego and our fear that interferes with that process. I'm sure of it.

It is, 100%. And I try to get better about it, but then I still find myself falling that trap. I think another part of letting go of the control is that jurors, especially in voir dire, they don't really know exactly how long things are supposed to take. And rarely I think are they actually going to blame you when they have to rely on the evidence to make a decision. I don't think they're going to blame you if voir dire took longer than it was or things seemed disorganized from the court's perspective. So I don't know, Harry, what are your thoughts?

Jurors are smart. They figure out who's wasting time and who's not wasting time. And how many times have you seen a defense lawyer get up there and go, "I'm not going to take as long as Mr. Orchard or Mr. Kramer and make a little dig," and then they take longer or they ask repetitive questions or they cross-examine jurors and the jurors, they can figure it out. So as long as you're honest with them, I don't think that the amount of time you're taking. I've seen a jury get very, very bored and annoyed in 30 minutes with a lawyer who's boring them as compared to somebody who's taken two or three hours with an interesting conversation that's from the heart and they're asking good questions and interesting topics and things like that and not just putting words in their mouth. So it's not so much the time as how you're spending the time.

And I think hopefully you get a judge that appreciates that, that knows the difference between somebody who's wasting time and 20 minutes and preconditioning them versus somebody who's actually spending three hours asking good questions.

Mel, what's your method to kind of start out the voir dire so that it does start interesting so that the jurors do want to be there? Do you have a set kind of formula or not script, but just a way you kind of start your voir dires and how you move the conversation?

I try not to have any script. I mean, I do have things I've done in the past. I want to throw out the script. I want it to be brand new for me each time. Each trial is brand new for me. So I try to get rid of all my old closings, openings, voir dire scripts, even though I have them. Because to me, the judge starts out usually by reading some description of the case. This is a case about an abuse of an elderly man, whatever it is. And so the jury has framework usually, and there's some preliminary instructions that are often read in just this is your role as. So it's this antiseptic kind of environment that comes in. And to me, I want to model as best I can what I expect out of them. And people are most interested in talking about themselves.

So the way that I try to frame it immediately is by showing them this is really about you. I'm not just going to say it, I'm going to show you. And maybe I'll start with, does anybody have a story they'd like to share with us of something that happened that affected them today, this morning as you walked in? And then I'm really quiet and I'm quiet for a long time. And someone might say, yeah, I couldn't find any parking and I knew we had to be here on time. And so I stressed. And look, I'm sweaty right now. And then I got here and realized that there were other people that were also running to get here. And I had never been in a courtroom before. It was weird. So I had a kind of a weird morning. Who else had a weird morning? So I think that really showing the jury in everything that we do, that we serve them, that we don't serve ourselves, our ego, our need to be dramatic, our need to add drama into a situation that's already dramatic enough.

I mean, it's by showing them the story and our words aren't enough and we've got to convince them with our overdramaticization, then that's a problem. So I try to show them from the beginning that I'm going to be genuine. I'm going to be a medium for what's happening, but I'm not going to be a surrogate for their emotion.

Your goal in asking them for a story of what happened this morning, is it just to break the ice? What's your goal? Or do you have one?

Well, I mean, I think that Dan, acknowledging what is, like Trial Arts College, it's the, how am I feeling right now? Before I walk into a courtroom, I check in. How am I feeling? Okay. I feel I'm nervous. I'm excited. I have expectations. Okay. And I want to set those aside. I've felt them. I don't want them to interfere. I'm human. They might, but now I want to be available to them. And so if I put them immediately into the situation they are in, and other people are in that place too, and other people are sharing, I had the same experience, then I'm bringing them present to the emotion of them where they are exactly right now. So as opposed to most jurors are so afraid when they walk in, they've never been part of any jury process before, and the judge is there sitting on high and the bailiff and the court administrator and all the things they have to do and they wheel in and it's unfamiliar and they're afraid and they're nervous or they're excited or whatever it is.

I want to bring them away from all the things they're expecting into where they're feeling now. Let's all get into a place where there's a familiar story of some kind from some juror. And I'm also teaching the jury as we go that we're all going to be listening to you. This is our only chance to listen to you, not to talk to you, not to condition you, but to really listen. And so I want to set the stage immediately for that.

And how many people do you do that with? Do you just get a few people and then you go on to some other topics?

Because to your point, I think Harry's point that if we're wasting their time, and I've had jurors say, why are we even talking about this? It's a good question. Does anybody have an answer as to why we're talking about this? Because I won't even answer the question. The group is the most powerful thing. And everything I do, I want the group to solve the problem. Does anybody have an answer for that? Why we're doing this? Well, you did ask how we were feeling and I guess our feelings do matter. Absolutely, because I'm going to be asking you what you feel about this case. There are people who are right for this jury and there are people who are wrong for this jury and it has nothing to do with them being the smartest or the best educated or best directed story. Some people's life stories are perfect for this case and some people's life stories are not because one side will start ahead of the other and that's not fair.

We're going to pick a fair jury.

And it's something I've started to implement maybe just from doing so many of these episodes and just doing lots of focus groups and trials in general, but I really do try not to answer the question almost ever. I really do like the technique of someone says, "Well, on a trip and fall, the employer of the plaintiff should have been more responsible, not the third party construction company. Right? Shouldn't the school?" And then you just throw it right back at them or throw it to the group like, "Yeah, does anyone think the school should be the one that should take care of this?" Because I mean, you find that any question they ask you is really going to be a lot of insight to what everyone else is thinking too. And then you just throw the question either back at that person like, "What do you think?

What do you think we should do about valuing human losses or quality of life?" It's almost like you're never answering the question. And then I think that also gets you off the hook from the judge who may think if you're answering the question, you're preconditioning.

And Harry, what does that show the jury? When you throw a question back at them, what are they feeling?

Yeah, that their thoughts are what matters, not you're not going to be talking at them and the roles reverse. It's like I'm here to hear. That's what I tell jurors in a focus group when I run a focus group. And I tell jurors when I run a focus group that I'm a neutral mediator and everything and give them this whole spiel. But I always tell them, "I'm really curious to hear what you guys think. My opinion about this doesn't matter at all." And then they go, "Oh, they like that."

I like that too where you say, "My opinion is not relevant." Well, do you have an opinion? Absolutely.

Yeah. And I'm just curious. I almost imply like, "I'm confused. You guys are going to help me because you're going to tell me what you think." And they like that. They're like, "Wow, okay." I can imagine doing that in jury selection early on especially gets them wanting to share their. People don't like to speak in public, but they do like to share their point of view when they feel comfortable. And if you can get them comfortable, they'll just keep talking at you, I'm sure. And then the judge can tell them to shut up. It's easy to tell a lawyer to stop talking and you're taking too long, but you want to tell the jurors that? I mean, I don't think I've ever seen a juror get cut off by a judge, unless they're crazy in there.

I don't think I have either. Sometimes I want the judge too. I'm like, Your Honor, come on. Can you tell this person to shut the fuck up? But yeah. Yeah, no, I like that a lot. I mean, I've never said that. I've never heard it, but I think that's a great line to say, my opinion doesn't matter during this. Kind of what you were saying, Mel, how you're not the one deciding, but especially in jury selection. I'm here to hear what your opinions and feelings are.

Well, and think about it this way too. If you say, my opinion is not relevant. You mean you don't have an opinion? Oh, I have an opinion. I've been with this case for years, but what I feel, what I think about this case doesn't matter. Why doesn't it matter? Why doesn't it matter what I feel or think about this case? I throw it back at them because we're deciding. I'm never going to try to convince you of something that you are never going to allow me to convince you of something that you don't believe is true. I respect that. And by the way, it goes for me too. You're not going to convince me of anything that I don't believe is true to me, to my story. So let's recognize each other's stories, honestly. There are cases I'm not right for. And if it's appropriate, then then I'll do a share.

But I don't do a share just to, what's the word? Gender myself, to ingratiate myself to the jury, to pander to the jury? Never. The share can't be about, I'm just a great guy and I want you to love me and I'm going to share something personal so you love me. It's not it. Can I share something? Totally.

And I think we should talk about that a little more. I think that's a big mistake that people do because they have that checklist. They're like, I got to be. So what they hear, I think, it may be mistakenly, maybe it's just the way they were taught and it's just like, "Hey, you have to be vulnerable. You have to share." So they think, "I just have to check that off. And if I do that, then they'll like me or then they'll open up." But why is that not true, Mel? Why is that not really necessarily the way to do it?

It's like a trick. They want to mimic somebody. They saw Jerry does and I'll share something real about me and you'll share something real about you. And now we know we can trust each other. And what people do is they mistake that I need to share every time. But the share has to be in the moment of something that's real for the purpose of showing that it's a safe place to share without judgment. And I want you to share. I'm willing to share something about myself for the purposes of showing you it's safe, not for the purposes of you falling in love with me. Because if it's that and it's not real or it's feigned or it's picked or it's created, the jury will know it's not real. And that's not the purpose. The meta story of this jury is I want to know your true story because it would be disrespectful to this system for anybody to be biased.

It would be unpatriotic. It would be dishonorable to walk into this courtroom with your mind made up toward either side and not tell your story honestly. I mean it. Second of all, I want to show you in everything that I do that I'm not going to lie to you and you can trust me. So I'm going to try to find jurors that aren't right and I'm going to look for you. Complete transparency, brutal honesty, all the things we've developed at the Trial Lawyers College. I employ them in not just words, but in everything I try to do. And I'm not perfect, then when I fuck it up, I'm going to tell them, Hey, listen, I've made a mistake there. So that's kind of the meta story at all times. And if we just go back to those two rules, I'm going to be a truth teller for you.

You can trust me. I'm going to work as hard as I can to bring you this case and I'm going to trust you to decide it. I'm going to show you I trust you in everything I do. And I'm going to find jurors who aren't right for this case and I'm going to get rid of them. That's what I'm going to do.

Can you share an organic example of when you have or when you would use a share, what would come up with a juror that would make you say to share something with them? What would be the purpose of doing it in that moment?

Usually in a way to draw out the poison of a case. And it's usually a share from something real in me that I'm ashamed of or embarrassed about, but it needs to be out there. I had an elder abuse case. I was getting ready to try. And one of the things that we had to deal with is the fact that the beneficiary, the daughter, had not seen her dad very often, and he was taking advantage of some people who literally deprived him of medication and food. And after he signed his will over, they said they'd get the house that they provided care, they stopped providing care because time value of money matters when this person is wasting away. And the faster he wastes away, the better it is for our money. And yet his daughter was estranged. She hadn't seen him in a long time.

And so my share was, I think about my mother, she's 82 years old. And in my mind, if anybody ever hurt my mother, abused her, didn't give her medical care, deprived her of food, I would never stand for that ever. I'm a good son. I love my mother. And there's a part of me that is really critical of my client. There's a part of me that says she should have done more, that she should have been more available, that she should have been more attentive, that she should have talked to her dad more. And that's a part of me that's critical because of my own sense of what it means to be a child and having the responsibility to take care of a parent. And this is something we're going to struggle with in this case. Anybody else have any kind of similar stories or feelings like I do about my mom?

I would never let my dad do that. No. And then someone will say, "Well, it was hard because my mother lived in Minneapolis and I was living in Detroit at the time. And there were times when people would come by and by the way, a scammer got her and got $30,000 of her money and I felt terrible." Yeah. "You feel so guilty that you couldn't have do more. Could you have done more?" "No, I couldn't have done more. "The person, the child we want to be, the child we see ourselves being sometimes is incongruent with who we really are to our parents. And they're more vulnerable than we want to admit, aren't they? To scammers, to people who don't have their best interests at heart, people who want to take their money. It's a scary place. So mostly what I do is try to get that so I can find the jurors who say," I would never do that.

I see my dad every day. And by God, if someone did that to my father, I'd be there tomorrow. "Yeah. And she didn't do that, did she? No. It's a tough case for you to sit on, isn't it? I mean, I'm trying to draw out, this is a tough case for you. I look over at my client right now and I'm looking through your eyes at her going, and my own from what I just shared. And I feel that. The other side starts off a little ahead and there's nothing that anybody in a black robe, no disrespect, it's a wonderful looking robe on you, Your Honor. Nobody with a black robe or a gavel is going to pound out your life story and force you to say you can be fair when you can, are they? I couldn't convince you if I sat here two hours to tell you to be fair because you'd have that story inside of you, wouldn't you?

Would you like it if I asked his honor if you could go home, maybe have another chance at another trial in a different case with a different situation? Absolutely, Your Honor, would you allow Mr. Johnson to go home? Counsel, I don't think you've established. I continue to put it back on the jurors and say, well, the judge seems to think we haven't done it. What else do you want to share as to why you think you probably are not right for this? Because once I start down the path of them not being right for the case, they want to kind of fight for that. They don't want to fight for the other side because the rehabilitation attempt, which is not even true, you can't unring the bell. Once they share that, some judges are great about it and some judges are not. In Wyoming, in red states, North Dakota, Montana, Idaho, geez, Wyoming, Colorado, some places in Colorado, Arizona judges, cause strikes don't happen.

They don't happen. It's an anomaly. You go to, I had tried a case in Miami, a federal court judge there, she struck half the panel. If they even sniffed like they were biased, gone. It really depends on your venue and on your judge. But anyway.

You would do that kind of share if you know the judge is going to be good on cause, I assume. If you know the judge isn't, will you still do it?

I might do it if I want to still be able to get information to exercise my peremptories and/or have the jurors that are feeling the other way, because we know there are jurors that feel the other way. Otherwise we're going to lose. Th's what happens. Sometimes you get a bad jury. It's not about us, the lawyer, it's about the jury. And sometimes you get a bad jury. You might have a great case and you might be hell of a trial lawyer and you get a bad jury, you're going to lose no matter what you do. And so I kind of let the jury self-select. I want them with a powerful leader to almost, not me being involved, but almost a dishonorable thing, almost a shameful thing that you would stay on knowing that what you've shared with all of us after what we're supposed to do.

I'm seeing them for their best selves in role reversal, seeing them for the best people they can be. And I want to talk to those people. I want to talk to the person your mother and your father love or that your brother loves or that your wife loves or husband or whatever. I want to talk to your best selves. And by God, in America today with our democracy and the pillar of our democracy, the judiciary being the one that's still somewhat functional and trusted, irrespective of your politics, hold this sacrosanct. This is an important thing. I try to, as best I can, resurrect that from them, the places that, because everybody's got to believe in the ultimate goodness in people.

So when you say you want to see them in their best light, is that's a mentality I assume you have to practice because some of us, we had David Ball in here last year, and that's one thing that he was teaching lawyers. He was teaching lawyers. He says just the mental exercise. I know you have a theater background, but the mental exercise when you're thinking of your jurors or your audience is that as soon as they're walking in the door think, okay, well, what does she do for a living? I wonder what she likes to do. I wonder what he likes to do. I noticed I started doing this after he came on our show about a year ago and it completely changed the way I approach them. The way I even, probably the intonation of my voice, the way I approach them, the eye contact, the body language is because I'm like, this person's probably a really good person.

Or maybe they have a little frowny face, maybe they went through something bad that they just need someone to talk to. If you have that mentality, but it's hard. It's hard to do that because a lot of times you get scared of these jurors because you're like, they probably hate my case.

I feel the same way about when you hear their jobs and the judge is asking them questions and this guy is a defense lawyer and this lady's an insurance adjuster and this one's an MD. And you could say, oh my God, they must be horrible. They must hate my case. And then what do you do? Then the minute you're just jumping on them for cause and the jurors are like, wait a minute, why are you attacking me? I mean, sometimes they're great jurors. They're people first, they're their job second. That's not an insurance adjuster. That's a human being who happens to be an insurance adjuster. They may not be a great juror for you, but find out, be curious. If you're not curious first, if you're leading with your fear, yeah, you're going to do weird things with them. You're not going to talk to them like a human being.You're going to talk to them like they're an insurance adjuster.

Talk to them like a human being and find out if they're terrible or not. They may be.

So Mel, how do you get in that mindset? I mean, what do you do to mentally get there? Because you do so well with these jurors that are ones that are terrible for your case, but you genuinely seem to care about them. So how do you get there?

I think David's right. I mean, whatever theater training, whatever trial or college training, it's role reversal. You are trying to reverse roles, as Jerry said. As Harper Lee said, crawl into a man's skin and walk around for a while. And so we're trying to find out as best we can what is interesting and important about them. One of the things that Jesse Wilson and I love to do together, I launched Jesse on his path and he's taken over the world 10 years ago and brought him. I know Jesse and I started together. He was just a theater instructor in a community college. And I said, "Hey, I would teach a seminar. I'd love to find a theater coach." But the point is that who do you love? Unless you're dead inside, everybody loves somebody. Who do you love and what's your life story? Insurance adjusters love people.

They love their families. Maybe they're not as open as we'd like them to be, but they've got a job to do. Their job depends upon them saving their corporation a lot of money. That's a lot of stress. That's a lot of heartache. A lot of times they disappoint people. They're hated by most people. That's hard to go home to. Hey honey, I'm home. How was your day? Oh, I denied 14 claims today. Saved the company about $200,000, and I'm just doing everything I can not to go and make a rope out of some of the twine in the garage and hang myself. Can I just see the kids? No matter how we frame people, there's this human story in each one of us. And leaving room for that story also allows them to leave room for, "Hey, I'm villainized by everybody, but not by you." And so the final question, Dan, I know both you and Harry asked this kind of a question is, if you were the lawyer and you were up here, would you want you, knowing what you know about insurance claims and adjusting claims, would you want you on this jury?

Honestly. And if you approach them honestly in respect and with love and acceptance and in role reversal, you might get a great answer out of them. Nah, probably not. I've seen a lot of fakers and I'm looking over your client and the first thing I think is faker. And I don't even know her. It's how I'm programmed. I know. Because you have to be suspicious of everybody because you don't want people coming in and making false claims and you losing a bunch of money and then you lose your job because people are gaming the system and everybody's a gamer to you. And it's okay because that's how you're built. That's how you keep your job. And you look at my client and say there's a gamer trying to game the system, even if she's not. And boy, that would be hard as we got into the jury deliberation room and realized your bias is going to mean you can't be totally fair and you can't get out of the case.

And gee, judge, I just screwed up. I should have told my story better. I love people. I love juries. I love jury trials. I love trial lawyers. And for the most part, I love judges. I love our system to exude in everything I do. And when I stop loving it, I'm getting out of the game.

That's well said. And it really does just come from that mindset. You really have to believe that everything you're saying about how this system, we are the last line defense and everyone has the right to this. And if you don't believe in that, then how can you ask people to serve on a jury if you don't truly believe that?

So you're interested in people. You are interested in trial lawyers. You're interested in voir dire. You spend your valuable time talking to other lawyers and lifting them up and learning and trying to have your audience learn because you're interested. Well, that's what you're doing with juries. In role reversal, you're just really interested. I'm really interested in you. And so I think that that is the key in terms of role reversal is just focusing on, look at your background, look at your jersey, look at your beautiful window. Look at your awesome clean shaven head. Look at your cool, dark bookcase. What are the interesting things that we can see in each other that are admirable? How can we see the beauty in other people? I was recruited by McCartney to play tight end. I went to Washington State instead. They wanted me to be a wishbone tight end.

Oh, you were? All right, go Buffs. Chose not to go there. Didn't you go to Washington?

Scholarship till the very, very end. They had a kid from Cherry Creek that was going to Colorado, and then he went to Oklahoma. And Coach McCartney called me the night before we signed and said, Mel, you're our number two guy. Now you're our number one guy. I remember one guy went to Oklahoma and I said, I already told Coach Walden the Washington State I'm going to go there. I'm a poor kid, a single mom from Evanston, Wyoming. I need a scholarship. I don't have any money. I already told Coach Walton and gave him my word. One year short. My last game was the Aloha Bowl, 89 for Washington State. Dennis Erickson, we finally had a really good year. And yeah, so anyway.

It's good that we could talk sports on this, Harry. But real quick to go back to jury selection, I kind of like the way Harry was talking about being the moderator and why not consider our mindset being the moderator of jury selection? Isn't that kind of a good mentality to have as opposed to being the advocate, be the moderator? I don't know.

No, it's for sure. It's my partner, Jason McGill was just doing, we have some summer clerks and we were just doing obsession lunch and learn with our new summer interns. And it was kind of about that moment is that we are not the drama. We're trying to sell anybody on anything, especially in voir dire. Preconditioning does not work. It is dumb. When defense lawyers do it, I just sit back and go, keep doing it because it's not going to work. We are moderators. We're directors. We're mediums for the story. In voir dire, it's for the juror story. We're not the story itself. We're not the surrogate for their emotion. We're not supposed to take it and show it, and then they don't feel it as much. It's like not killing the person in cross-examination. So I love the idea of a moderator, Harry.

Yeah, I mean, because if you have that mindset, then you're not going to think about your next question. You're really going to care about what they have to say. If you're just really just trying to be the moderator, moderators, Harry, you're a moderator all the time in your focus groups. I mean, you really care about what that person says about something. You're not thinking about what am I going to ask him next though?

Yeah. You're not spending all the time talking yourself. You're not trying to make points. You're not trying to cross-examine anybody. It's not a deposition. We've all seen lawyers who treat a voir dire like a deposition in there. I've seen some lawyers, it's almost like they're getting the foundation. It's like, "Just talk to the person. And isn't it true in your job you've done this and isn't it?" And you're like, "What are you building to?" You're building to a point probably, right? You're not there to make points in voir dire. Let them talk. I mean, they notice when you're just babbling the whole time. And I've seen it happen before. Yeah. I mean, be like Phil Donahue and just spread the microphone around.

That was the first person I thought of. It is kind of funny.

Yeah, he's always looking to hand the microphone to someone like, "I don't want to talk. You talk." So I think that's a great mentality. And I like how them sharing their stories about maybe why they have bias, they can't be fair. It almost sounds like the judge will do, when they'll do hardship first, anybody here can't give us your story, line up behind the podium or whatever and tell us, give us your little pitch of why you can't serve. And they're like, "I got a vacation or I have work or I have this or that. I have childcare." It's almost like you're getting up there and you're giving me your pitch. Tell me your story of why this is the right case for you. And they're lining up to do it. And it's coming from you. It's not you putting the pressure on them, it's them putting the pressure on the court.

I think that's a good way to sort of phrase it. Yeah.

Once you've framed it and the issue is out and you've addressed it with love and with understanding and in role reversal, it becomes their issue to fight for. I mean, gosh, can you imagine a judge forcing me with my bias to be on this jury? That would be really dishonorable. And so I mean, I think that's best we can. Every jury's different. Every voir dire is different. And thank God it is because we're human beings, we're all different. That's a cool way to frame it. And back to the issue too of making points is counting coup, making points, whatever it is. When I'm in voir dire, I tell the people who are helping me, my amazing team of people, hopefully not that big because I like to show David, big corporations, just little old me from Wyoming, all six foot five, little old me. But I try to diminish myself and I don't set long-term memory in voir dire.

I don't. I'm so in role reversal, so in wanting the group to talk, so in wanting to find out if everybody has had a chance to share, if everybody's involved, what's happening. I can tell you how I feel about the jurors. Most of the time I want to keep them all. And I let my people write down whatever points are being made that might help us in terms of peremptories. I've gotten a lot better at my cause challenges. For the longest time, I didn't even make cause challenges. And you talked about in your email about old school things that we used to do and things we don't do anymore. The old school kind of teaching from the Trial Lawyers College has really changed too. Jerry would get up and he'd say, "Well, I guess my client looks guilty, doesn't he?" I mean, look at him with his face, the guilty face of a keller.

Who agrees? Well, I guess we should just all go home. Mr. Spence, I'd like to hear the - Thank you, Mrs. Johnson. You want to hear the evidence. And they would go back and forth and back and forth and back and forth and back and forth because judges in Western red states did never grant cause challenges. It was a sasquatch. It never happened. And so you would have the jury solve the problem real time so that by the time I mean, he was done with voir dire. That jury had already decided. The jury had decided where they were going to go based upon how he did his voir dire, because he brought up the things that were troublesome and suddenly they're debating real time about core issues. But you have to have a pretty good case because we've got a lot of red jurors. There are a lot of conservative people here.

Better have a damn good case to do it that way. The way that we do it now, the difference is kind of rich newsome in some of the stuff that came from Florida and Alex Alvarez and the Momus Method and a lot of those, the people who really wanted to. I say it this way when I teach it to the Trial Lawyers College is spread the poison out honestly. Poison in the case. What are the problems you personally as a lawyer have with the case like the case I just shared? I don't like it that she wasn't more attentive to her dad no matter what kind of a bad dad he was. It was still her dad. That's true in me. If I spread that and it's poison to the case and it's poisonous to the verdict and it's a problem in the case, then the jury sorts it out.

But I don't let them sort it out real time like when someone goes, "Well, I don't agree with that. There are a lot of fraudsters out there." I mean, of course I'll let everybody talk. I know there are people that are in favor of my case. I don't want to out them. I don't want the jury that's good for me to identify themselves. I want the jury that's bad for me to identify themselves. And if I can honestly, genuinely bring out that part of them and allow that to come up, the people who are for me, I'm not making it so they have to fight. I'm just making it so it's safe for them to expose that. And that's different.

Just so I under, so you're saying the old Jerry Spence way would be to put the poison out there that you think the really bad jurors are already thinking this guy's guilty and then have a good juror kind of help bring it back to what he wants. You're saying the new way, you don't do that at all anymore. Now you really just want to focus on getting the bad jurors to talk and don't expose your good jurors. I just want to make sure I got it.

I mean, it's to build a tribe, right Dan? The build the tribe mentality. You build the tribe. Adage was, well, I'm going to be the medicine man or woman. I'm the one bringing the guidance to the tribe and you're a tribe and I'm part of the tribe. I'm not part of the tribe. You're your own tribe. I'm going to be here to help you if when you need help, but most of you have this in your guts, in your life story. This is going to be right and wrong. That's how simple this case is, right and wrong. And everybody knows right and wrong. My point and the way we've changed it is that I don't want them necessarily to solve the problem real time because it also outs my good jurors for their peremptories and their cause challenges too.

Harry, I want to get your take on this. We love having these philosophical debates about jury selection on this podcast. Harry, I'm curious what your thoughts are.

Yeah, I mean we talked about this a lot. I think my fear is that I want to get a little bit of everybody to make sure that they're. Because sometimes the worst jurors just sit there and they don't say anything. And I never assumed that, gosh, we got a lot of poison out from a lot of bad jurors and we must have gotten it all out because if there's a few folks you haven't heard from and you talk to them, sometimes I remember one case, there was this one lady looked like a sweet grandma that hadn't talked. And I told the lawyer, you got to talk to her. And we said, how do you feel about money for pain and suffering and emotional distress? And she just looked right at them and said, the way I was raised was suck it up buttercup. And then you went off on this the worst juror by far of anybody.

So I don't worry about letting the good jurors talk about some things that they feel. I don't want them talking about how they think the case is so great and everything. I do think you got to talk to everybody a little bit and just make sure, ask them open-ended questions so that you get a sense of, okay, this person has a good set of values that I think is going to align with our case pretty well. But do I spend all the time? I don't think your goal should be to just get all the good stuff out. That's not the goal. The goal is to assess jurors. And with some lawyers, that almost kind of seems like it is the goal and that's not accomplishing anything. Your goal should be to find who the bad jurors are and make sure you get all of them if you can.

And I've taught this before. I mean, I kind of have a nuanced approach of I also want to know who are the jurors who actually are going to get really upset at what our case is about? And who are the ones who may be fine, they don't have any biases, but they just don't. It's not that big a deal to them. Who's the person who's like, I've seen it a million times. It's wrong technically, but it's not that big a deal. I just don't get upset by a company cutting a few corners on safety because hey, what company can do it? I remember one time I was picking an employment jury with my buddy, David D. Burtis, and I think we asked a question about to the jurors, who thinks that the hospital should have to investigate every single accusation of problems with patient care?

And one guy said, I think that they should, but I think the bigger the company, I think the less they can do it because there's just so much red tape. And he was just talking to them and he was just like, this guy's not, he's just excusing things. He's not going to get that upset. He might find for us technically. Yeah.

Those poor giant multi-billion dollar corporations, they can't get around to it.

I know. It was weird. Yeah. It was a very strange answer.You're like, wow, really? But I'm not going to argue with you. I'm always on the lookout for who else are the people who just are not going to get. This just doesn't strike a nerve. Even our best case doesn't strike that much of a nerve with them too.

But are you concerned at all what Mel was talking about kind of exposing it for the defense, doing the defense's job? Because they're probably going to do a much shittier job. And so what changed?

I used to be. Yeah, I used to have that approach. The questions that I ask are, they're open-ended questions where I just feel like the defense, they're not right on point of like, Hey, are you for this kind of case? Their yes answers are not like, oh, I'm absolutely for maximizing money for these verdicts. They're more nuanced. And so I feel like the defense can really read these open-ended answers. I mean, that's kind of my thing. And so yeah, I never have the lawyers ask the good jurors really direct questions that expose, God, this guy's absolutely good. Who here hates corporations? Okay, good. We don't ask those kind of questions, but I do ask subtle questions about what are your thoughts about whether. I'll give you an example. What are your thoughts about whether companies that make product, should they have to investigate to see whether doing the minimum regulations, minimum safety standards are enough or not?

And so the defenses really worry when they say, yeah, I think they should have to look into that. I think minimum standards aren't all. And a bunch of jurors will say those things. And so it's not like they can strike all of them. But I mean, ask questions that you can gauge better than the defense, and they usually don't figure out necessarily who's going to be the ones that they need to worry about. They do a pretty bad job of it. I find the defense, at the end of the day, they get rid of people that they think are illogical and emotional, and they don't get rid of the 52-year-old white guy who's wearing a tie or whatever, who's like, I call a boy scout, who's got really strong feelings about safety and responsibility and things like that. And they're like, that guy's logical. He's not going to.

A lot of times they don't understand what a good juror for us looks like. Agree 100%. Don't ask questions that are just a smart defense lawyer would ask to suss out the really good ones. You should be trying to either find the bad ones or at least gauge your jurors. How good or bad is this person? We shouldn't just be like, raise your hand if you've been a victim of discrimination and tell me all about it and how upset it made you. I don't ask those kind of questions.

If I can just comment on that. I hear that and I agree with most of it. The only problem I have is that I've tried a case in Idaho just a few years ago, and I mean it when I say it, if you're biased for either side, if you're for me, any of the evidence hearing the evidence or you're for the other side, you shouldn't be on this jury. And I mean it. My soliloquy is I really hope if you're really for me, you're not going to say anything, which is a little bit of a kind of a, it's a little disingenuous, but I'm going to ask pointed questions about the worst parts of this case to find out all the haters and they can do their job. I'm not their lawyer. I'm advocating for this person. I'm trying to find the people who aren't good for my case in that kind of, "Hey, I haven't heard from you.

I believe brain injuries are real. My mom has a brain injury. I didn't have anything to share about the fact that brain injuries are not real because I know all about it. In fact, I have to take care of my mom and I'm way for your side of the case. That's the truth." And I went, "Okay, I just told this jury that we're all supposed to be fair. What am I supposed to do to honor Mr. Johnson? What am I supposed to do right now? You're supposed to ask me if I should go home and I kind of wish you hadn't said a word." And I said, "You know what? I wish I hadn't said a word too because I want to win, but I don't want to not mean what I say. I mean what I say. So you're not fair for this case, are you?

And I think you probably ought to go home, shouldn't you?" And I know they're not going to object. I hear what you're saying, Harry. I think it's right. You want to know as much as you can about the jurors, but I'm interested in the leaders. And if I throw out the bait enough, tort reform, big verdicts, runaway justice, lottery verdicts, the system is broken, jury hell holes and tort reform. And pretty soon the leaders, the people who just want to dismantle the system, who don't believe in anybody, I think they're hurt people. I want those leaders, not just biased, but biased leaders to be outed. And I don't want anybody on the other side. So I tell them, listen, if you have something to say, this is the time to say it. This is an open floor. I leave a lot of silence. When you're not talking about the issues we're talking about in terms of the dark side of the case, I'm going to assume that you don't have anything to share.

It's this honor system. And so even if they are slightly biased, but they're not a leader, sometimes they'll be convinced by other people. It's kind of that if you trust juries, if you trust people, I think they become trustworthy for the most part. It's a great debate because if you don't ask the question, you might have a stealth juror that was on there anyway. But if they're really out to get you, are they going to answer honestly if you out them? Are they? If they're really out to get you, if they're out to get you, they're out to get you.

Yeah. I mean, I think that's also reading a lot of body language too. If it's a really bad. The stealth juror, I think sometimes will tip off. I mean, here, you're the jury consultant, but I mean, I think the stealth juror, you're going to know if not 100%, but you're going to know a little bit. You're going to get some cues, right? The bad stealth juror.

Yeah. If you ask them open-ended questions, you can tell. They're very good at saying, yeah, I agree with you, and give them these short little answers. Yes. No, I have no problems with it. I can follow the law. That's one of the actual red flags is just answering a question that's not the question. I can follow the law. But if you get them to explain it, they can't really give you a sentence or two that makes you feel good about what they. You go, okay, this guy's being cagey. So you have to ask them open-ended questions. Yeah. I mean, I've had ones, one of the questions I used to ask a lot, how do you feel about our system of where we use money to compensate for things like quality of life and pain and suffering? And I have no problem with it. I'll follow with the law.

I'm sure you'll follow the law. My question's a little different. It's how do you feel about that system? And they dodge it again and you go, okay, this guy doesn't like it. It's really hard. Yeah.

Those answers are usually really think they're terrible jurors. But a

Lot of lawyers make it so easy for these stealth jurors to get by him by just yes or no or, well, you didn't raise his hand, or you got to engage him. And I mean, I think Mel's approach too, and making it really. The more comfortable you make those jurors speaking up, the less likely you have someone just hiding in the back because why would you? It's not like they probably want to be there. The only reason they don't talk is they feel a little uncomfortable and they don't want to share it. So the better job you do of getting them comfortable sharing, the less you got to worry about, gosh, we didn't talk to that guy. We didn't talk to that guy. I do agree with that. So it's just a risk benefit. Yeah.

I love that approach. And what if you did it like this where you just said that? Some people haven't talked, and maybe because they don't have a story to share, and it may be because this is uncomfortable. But I know that if people who have been quiet had something to share, they would because it's so important that we get your stories out here, especially if you think you couldn't be fair. And so I'm just respecting the privacy of people who haven't spoken up because you don't have anything to share and there's no need just to talk for the sake of talking, right? Otherwise, we'd hear from you. Yeah. Seeing your nodding head, I'm agreeing with you and I'm going to respect your privacy. You're also establishing the rules of engagement too, and who you're going to be in terms of respect for humanity, respect for boundaries and things like that.

So I love this shit so much. I just love it. Love what we do. Love trial lawyers.

I'm curious what your approach is to talk about big numbers in voir dire in the last five, 10 minutes we got left here. How do you introduce it? How do you talk about it?

I have to say, trying cases in red states, I haven't had the. I've seen some verdicts recently where the 60 million, 100 million, $300 million verdict. I've never had those kind of verdicts. I've been involved in cases where juries I've been involved with have rendered big verdicts, eight-figure verdicts, but not like these. And so I don't know that I'm particularly gifted in terms of talking about big numbers, but I've made peace with that. I didn't grow up with any money. And so there's a part of me that feels like a little bit of money is a lot of money. When you don't have any money, a little bit of money is a lot of money. When you think about how much you make or how much you bring home or how much your parents brought home or how much a house cost when I was a kid, that felt like a lot of money, not very much money.

When you think about the perspective of where we are, I'm going to ask you for a lot of money and to use David Ball's framework because there's a lot of harm. And equating human life, the value of our bodies functioning and our brains and our organs and our lives has to be more than all the accoutrements of life, all of the shiny objects that we put value on. What are some shiny objects that are worth hundreds of millions of dollars that people put value on and we say, "Man, they're worth nearly as much as a human life." What are some examples of things that you go, "Oh my gosh, is it a $50 million stallion just because its great-grandfather won the Kentucky Derby? Is it, as Jerry says, a van Gogh, earless man and man with dead painted something abstract and now it's worth $100 million?

What about the flesh and blood of a human being?" There's all kinds of ways, but the best source for that information is in our jurors because they know how expensive things have become. And why would we ever value the human body or a human life less than these abstract things? Let's put some real value in human lives. Can we? Together? What does that look like? And I always put a number. Folks, we're going to be asking you for a lot of money. And there are some people, friends of mine, doesn't matter what kind of case I have, they would say I could never compensate somebody. Never say a ward could never compensate somebody with that kind of money. It doesn't matter what I prove. And so I'm going to ask you, no matter what the facts are, is there anybody who says, I just could not compensate somebody $10 million?

No matter what we prove, because the law of this state doesn't limit you. You're only limited by what's fair and reasonable and your life story. Anybody? How about 50 million? How about a hundred million? Mrs. Stevens, $100 million. I hear you. We're not asking you for a hundred million, but we're going to ask you for a whole lot, tens of millions of dollars because that's what's been taken and that's what they've been left with. Those are the harms and losses. David Ball, thank you very much for that. I use it all the time. I precondition them within tens of millions of dollars and I say, I don't honestly know until we hear what the evidence is going to be, what the number's going to be, but I already know from how I feel about these people it's going to be a lot. So get ready.

I

Like that. I like how you kind of started by having them answer the question. What do you all think? Do you think this could be worth more than a human being? I haven't heard that one before. I like that.

Agreed.

This has been great, man. Mel, I really appreciate it. I can see why you are a legend throughout the country, and I know our listeners have learned a lot. I sure have. Thanks a lot, man. Appreciate it.

I've learned a lot too. Boys, thank you so much for what you're doing. I've learned a whole lot from you. And so this experience, every experience is a chance for me to grow, and I'm just grateful. So thank you. Nice stuff.

Yeah, that was great. Thanks

For coming on. That was awesome. Kind of makes me feel like we should have Mel back on. Since we can't have Jerry, it seems like Mel's up to the task of doing.

Someday I'm going to do a one-man show. Do you know it's blood money? I miss my partner. I miss him so much. Anyway, thanks a lot, guys.

All right.

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