Everybody loves an underdog story - so why do lawyers often tell the opposite in the courtroom? Juilliard-trained actor and jury trial consultant Jesse Wilson developed a “victim-to-victor” approach that capitalizes on the universal appeal of “I can” instead of “I can’t.” In this conversation with hosts Dan Kramer and Harry Plotkin, Jesse explains that jurors respond more powerfully when they see strength rather than just suffering. Tune in for his insights about treating yourself as "the most important juror" to transform your courtroom presence and ditching performative "good morning" pleasantries to create genuine connection.

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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.

Welcome to another episode of Picking Justice. Very excited for this one. Harry, what's up, man? We haven't picked a jury in a while. I'm in trial all the time this year especially, but haven't seen you in a while. How you doing?

I know. I'm semi-retired. No, I'm coming out of it now.

Yeah. Apparently. This podcast has taken off so much that you're just resting now, huh?

Yeah. Yeah. No, I'm talking to a lot of other podcasts and usually if I'm not here, I'm working on another podcast. No, I'm just kidding. No, we'll do it soon this year. We'll be in some trials. If I can get these judges to actually try the cases that I show up for.

Yeah, exactly.

I had one where I showed up and within 10 minutes of the defense counsel seeing me, they settled the case and then he pretended not to know who I was. It was pretty funny.

It's always great when the jury consultant scares the defense attorney more than the attorney does. I mean, you obviously don't tell him that, but ...

I think it's both. I mean, yeah, I think it's just like, oh gosh, they're going to get a good jury too. They got a good case, they got good lawyers, and then now they're going to get a good jury. What chance do you have? If you don't have a good jury, what chance do you have?

Yeah.

Even if you have a good case, let alone a crappy defense case with no merits.

100%. Well, anyway, I'm really excited for our guest today. It's our second non-lawyer who's going to help us learn and teach and give a totally different perspective to jury selection. Jesse Wilson, the famed actor and author of Witness Preparation: How to Tell the Winning Story. Jesse, you're out in Colorado, aren't you?

I am. I am, Colorado.

All right.

But I'm originally from where you guys live, California. Born and raised.

I went to the great University of Colorado Boulder, so I love that state. Yeah. So anyway, so Jesse, I'm really excited to have you, man. I've listened to so much of your stuff, you know your books and really been following you from afar and it's so good to have you on here because you have such a unique approach and I know your whole, the foundation and all started ... I know when you used to work in prisons, I was reading about that. I did a little bit of my homework on this one, Harry.

Wow.

And so it's really cool that story you have, but I really want to jump into kind of the foundation for your method is this victim to victor.

Yeah.

And I really can't wait to see how you apply that. And then because I'm thinking to myself, I'm like, how the hell is that going to apply to jury selection? And I'm really excited to get there, but I think we have to lay some foundation first before we get there. So Jesse?

Yeah. Well, the foundation for the work came exactly what you just brought up with my work with inmates and addicts in prisons across Colorado. I say inmates and addicts because they often go hand in hand. And long before I was calling it the victim to victor approach, I was helping men and women tell their stories and to not define themselves by their pain, but by the strength of trying to overcome their pain. And it was transformational. It was healing. It changed my life both personally and professionally. Intellectually, I knew that the theater had the power to transform lives. I suppose if you would've told me that at Julliard way back when, I would've understood that intellectually, but I had no experience with that until I got into prison. I have to say that as a guest.

Just casually dropping Julliard in there. Just a casual little flex there with Julliard. Julliard Prison, you're a man of the people, Jesse.

It was like theater bootcamp. So I don't say that like it was like Shangri-La. It kicked my rear, so it was tough.

But yeah, I'm very grateful I went to that school, but I didn't deal with transforming lives. It dealt with the transformation of character, but that was as far as it went. And then now here I am working with men and women who could care less about Julliard, acting, Hollywood, all that stuff. They were broken. They were in pain. Something needed to change in their life yesterday and how in the world was I going to reach them? So that was my world. And how I ended up getting involved with lawyers is a whole other story. But the transition to working with the men and women that I work with witnesses across the country was really not that much different. And when it comes to the victim to victor approach as it appears in the legal world, the best example I can give is this. And it's a counterintuitive approach.

And when it comes to maximizing damages, imagine that we are an opening statement and whether the lawyer says these words are not to the jurors, he shows these words only 100% of the time when it comes to the right telling of the story of the client. Ladies and gentlemen of the jury, you're going to have a chance to meet my client. She is not her pain. I'm going to say that again. She's not her pain. She is the strength of trying to overcome her pain, and I can't wait for you to meet her. Now that's a vastly different approach than what you might hear. Ladies and gentlemen, you're going to have a chance to meet my client. Her entire life has been turned around. She's broken. She's in pain. You're going to hear about all the things she can't do. She can't, can't, can't, can't, can't, can't.

Now give us a lot of money. Good luck with that story.

I love that. I love that line. Say it one more time.

He is not his pain. He is not his broken body, his brain injury. He is not his missing kids. Whatever the thing that has been taken from him, that is not who he is. He is the strength. She is the strength of trying to overcome her pain. Strength, trying, overcome. These are the three pillars of the Victor's story. And when jurors see that story, when they connect to that story, not only do you illuminate the pain at an even greater level, when people see how somebody's trying to overcome their pain, now we give a crap. It keeps us out of the sympathy box.

God only helps those who help themselves, but you're saying the same thing for jurors. I mean-

That's right.

They're gods in a way. Oh, in the courtroom, they're the 12 gods there.

Two of the most important things that the jurors are looking for, and I poll jurors all the time whether I'm doing focus groups or talking to jurors after trial. Whether they're aware of it or not is A, is the witness real/are they credible? And what are they trying to do to overcome their pain? What are they trying to do to overcome their pain? That's the game changer right there. And so that made so much sense to me. I know we're here to talk about how this applies to jury selection, but when I first started my career, everybody loves the underdog story. We all love movies about people, characters that don't give up. Everybody loves that story. You're never going to hear one person who says, "I really don't love the underdog story. I don't know what it is, Jesse. I have a fetish. I guess I love movies about whiners and victims and people who give up." Nobody's ever going to say that.

When I'm starting out my career and I'm sitting in courtroom after courtroom, the complete opposite of the underdog story is being told. You're hearing the victim's story, the I can't story. And who's allowing that person on the stand to be that person, which is the director? So great directors have to know what they're looking for.

You know what's interesting? As you're telling this story, regardless of your politics, the whole Republican push for the welfare queen and how that made such a big imprint to their voters and maybe voters generally was the same thing. It's the exact same thing you're talking about. It's that people, the public does not like, voters don't like, jurors don't like someone that sits around their couch and complains and just takes things because we are asking them to compensate with money for what has happened to our clients. If they are this image of sitting on a couch just going to collect paychecks or money they're going to give me the day, no one likes that. And that's why those political ads work so well for the exact same reason because the public, people in general, a good society means everyone contributes as much as they possibly can.

The people that give up are not ones that we want to support.

Absolutely. And so I don't want to go too far down a rabbit hole here, but the second wing of the plane of the Victor story is another very counterintuitive idea. And it's very, very scary to many witnesses and sometimes damn right offensive. If you suggest this to them, if you haven't built the kind of trust with them that you need to have, and that's what I call the second wing of the plane of the Victor story. And that's joy, J-O-Y. It's not enough just to be able to show the story of strength. It's another thing to be able to show that story with joy. And this is why I lean so heavily on showing joy from the witness in their act one on the stand, indirect act one before the injury. Is it important that we see that the witness is likable and credible and relatable?

Yeah, absolutely. But that's not nearly as important as the target, which is showing joy. And this is something that many lawyers will forget about. If I'm the cross-armed juror, how can I know the value of what's been taken from Ms. Jones if you don't show me the value? And what is that value? J-O-Y. Joy is the bank deposit because when you deposit the joy, you now have shown the evidence for the life that the witness would give anything to go back to. And I'm not talking about rainbows and unicorns, happy, happy joy. I'm talking about a little bit of joy that goes a long, long way. When you make that bank deposit, you deposit the joy, now you get to withdraw the pain, gets you permission to talk about the suck. But the suck, that was the original title for my second book, trial guide shot it down, embrace the suck.

And I steal that line from the Navy Seals. Joy is just as important in the act two and the injury. There's the caveat to the embracing the suck. There's embrace the suck, but get to the but. And quickly, what that means is you're going to take your client to the lowest to the low unless you can get another witness to get that in, a lay witness. Take us to the lowest to the low, but give me a but. How do you get out of it? Example is, a really quick example, because this is a recent trial, I'm going to be the woman whose husband has been killed in this horrific trucking crash. She says, "After Frank was killed, getting out of bed was an impossibility." She says this on the stand. "My children literally had to scrape me out of bed. And one morning I thought, that's it.

I'm done. Stick a fork in me. I wanted to check out, but, and I'm making this really obvious for this example. But when I looked across the room and I saw that picture of Frank with that goofy, stupid, smiling look on his face, I heard his voice just as clear as day. "Edie, get your ass out of bed." And so I took the next step and guess what? I'm still walking. With minor wordsmithing, that was actual testimony. That's the but that the witness can volunteer. That's the only time they can volunteer. So joy is just as important in their pain as it is in what we see before their pain. That's the victim approach in essence.

Should we talk about how this all tie into voir dire? Have we laid enough foundation, Harry?

Yeah, I think so. But no, it's important, I think, to know the philosophy and the goals behind how you're getting to presenting your plaintiff and getting into damages so we know how we started out we're setting up. So yeah. And I know for a lot of folks who, some folks who may not know who you are, it's good to have a little bit of taste of what your method is about. But yeah, let's talk about ... I'm super curious to hear what you do in jury selection. Yeah.

Yeah.

Show me what this looks like in jury selection. I have maybe a different way of approaching jury selection. I like to think from the end. In my second book, the last chapter is actually called The Knockout Rebuttal. In essence, it's beginning with the end in mind. Think about what your ending is going to look like. There's a flight path I like to follow, and it's something that I've been working on with a really good buddy and a client of mine, John Carpenter at LA. And it's starting with a really important question, which is, how is the defense absolutely right? And we still win. I used to go off of the idea of how could the defense be right, but that's giving them an out. How are they absolutely right? And once you get to that place, who is my client? Who is my client? Who are they?

Am I telling the story of a victor or am I telling the story of a victim? Because if you're making the choice to tell the story of a victim, go back to Candy Led. Find the story of strength, hope, and joy. If you haven't found that, find it. That's the second part of that. What we're doing here is we're setting up the moral framework for your conversation with your jurors. And then the third part of this flight path, which is really important, is what I like to call the joke. What is the joke? And what do I mean by that? What is something that is so egregious from the other side that you cannot help but laugh about it? It's something that's so true. This is so freaking obvious you just can't help but laugh. Maybe the joke isn't always in the defendant's actions. Maybe it's in ... Maybe the joke lies in your client's journey.

Whatever that is, it's something that's so true, you can't help but laugh about it. Those three steps, what I like to do before we get on the path, if we can answer those three steps, then we're there. I want to ... Actually, if you don't mind, I'd like to read a quote that helped me understand this moral framework of the right conversation that you want to have with your jurors from a great guy named Rick Friedman. And I quote him from his book, The Way of the Trial Lawyer. He says, "Your own search for a calm moral center is critical. I am in the courtroom at this time for this client because ... " Fill in the blank. "The answer must be strongly rooted in your personal belief and values. There is no substitute." So that's where I like to start. Now, to answer your question, there's a lot of things we could be talking about jury selection, but we have limited time.

What the heck does the victim to victory approach look like in jury selection? One of the questions that I like to ask, I used to say, it really depends upon the case to ask this question, but I'm starting to think, why wouldn't you ask this in any case that you're on, that you're working on? And here's just one example of the victim to victor approach is when it comes to damages, let's just assume that the case is what I'm typically invited to work on, a brain injury case where it's a mild brain injury and the defense is saying, "Well, the reason why they look fine, ladies and gentlemen, is because they are fine." Typical argument from the defense, lie or cheater or fraud, as Mr. Friedman would say. So this is where this question would really, really apply. It's a two-part question. Let's say you've been, when you're talking about pain and suffering.

Earlier, ladies and gentlemen, I'd asked you who here knows of anybody who has experienced what you would consider to be a life-altering injury? And we've heard a lot of shares with that. I know you guys had Randy McGinn on recently. I love her question, who here has experienced profound grief, and I love that. So we've got all sorts of wonderful shares on thank you for sharing, but this is an important follow-up, guys. Who here knows of anybody who, despite their injuries, are doing the best they can to try to hide their pain? I very rarely ever hear that question being asked.

I love that question. I think that's a great question.

That's wonderful. Well, now I'm interviewing you. Say more. How do you put it out?

Well, no, I mean, I think it's ... And Harry and I have talked about this. I think it's some of the questions Harry has given me probably. I don't do anything originally, Jesse.

We don't really ask so much for shares. Well, that's a great idea too, but it's more a question of who feels like you can tell ... Something along the lines of who here feels like you can tell just from looking at a stranger or someone you don't know if they have a brain injury, if they're in chronic pain. And so you get a lot of people saying, essentially, no. I mean, you can't tell. I mean, somebody can be in great pain and sit there and look okay. It's more to address the plaintiff who looks fine in the courtroom and they walk in and they seem normal, but they're not normal. You just can't tell. And obviously we're more concerned with the jurors who are like, "No, he looks fine. He's fine. There's no problem here. He walked in here. He smiled and laughed, but not so much on the sharing aspect, but you like to get them sharing the stories for other jurors?" I do.

I've done a follow-up with that though, Harry. I mean, who knows someone who's had to work through the pain and keep working and continues to work. Just all those things and you usually get a lot of people talking there.

You're also telling your client's story right there. So just I would keep your jurors in the suck. This is the embrace the suck versus talking about the suck. This is the difference between a checklist question and a deeper conversation, a deeper dive where you're digging in. I cut you off though, Dan. I apologize. You were saying ...

No, no. I think it's the, like I said, it's your theme building. It's not really preconditioning, but it is your theme building in jury selection. It's obviously ... I don't think that follow-up question, Harry, is obviously going to be a strike question. I don't think you're going to get people ... I think a lot of people think it's admirable that people work through pain and all that and they do it. I think that where you start going where that filters down, does anyone think that someone who has been able to work through pain and still works, that the value of their harms is in the millions of dollars. I think that's kind of where you want to see ... Because I think you'll get a lot of jurors who agree that's admirable people are working through pain, but if someone's able to work, it's not worth as much.

I guess my point is even people that may agree they're working through pain. I don't know. I mean, I'm curious what both of your thoughts are.

Yeah.

Harry.

Well, I think what you're doing though by getting those stories out is I think probably more of the jurors who maybe don't have that experience are just thinking jurors are really good at convincing each other when they hear the same story, two or three or four or five jurors say something, they start to rethink things that they might have otherwise kind of felt differently about and go, "Yeah, of course. Yeah, of course people hide their pain and you can't tell from looking at somebody and you can't tell if they're working." Whereas if nobody had spoken up, their instinct may be going, "Oh no, you're feel the other way." And so-

Also advocate the crap out of your jurors, push back on them. Don't you accept, well, yeah, sure, of course. Well, that's the same as a juror saying, "I agree to be fair and impartial." That doesn't mean you're going to be fair and impartial. So push back on it because that's what the defense is doing. So help me understand here, Mr. Jones. You had your hand raised. You're saying that somebody could go bowling and do physical, normal, active things, which is pretty much going to be close to the story of your client, can do normal, active, everyday things and still struggle with what they would prefer the rest of the world not see. Does anybody have any experience with that? And now you're getting to emotional damages, which is where the jackpot is. Talking brain injury or invisible injury or whatever the injury is, I don't care what the injury is.

It all leads to the emotional damages of what that person would prefer the rest of the world not see. So yeah, getting some good shares from your jurors is a wonderful, wonderful thing here. I think about my own father. I'll share this in focus groups sometimes. This is my own experience, Jesse. My dad broke his hip about two years ago in LA and he was working on a big project, tree house that he was building with my son, Nicholas, who just turned 10 three days ago. And Nicholas was really, really excited to work on this with my dad. And I come to LA and my dad is struggling like a madman trying to get up this ladder. And my dad's in his 80s, but don't tell my dad that. And he's sweating like a pig. I could tell he's in pain. So I come up to dad, and this is out of earshot of my son, Nicholas, and I say, "Dad, you look like you're in pain.

Why don't you sit this one out? " He goes, "Ugh." And then he proceeds to continue to climb. And he doesn't let my son see that. In my son's eyes, he's fathered business, but there's a great example. That's what you want to get out of your jurors. That invisible life, that invisible world, stay there with them because that opens up a whole host of other things that you could be talking about. So that's one example. And I don't like to say the word mask. I work with masks. Masks came from my work in studying at Julliard and then working with inmates and addicts, but you're telling the theme of a mask in jury selection. And then a juror could free you of that. They could say, "Yeah, it's like they're wearing a mask." And then you could use their words and then you can honor them in opening statement, but you're telling the story of the mask.

That is a victim to victory theme.

So is that the main one you use where you recommend doing in jury selection for the attorneys you work with? What are the tactics from victor to victim?

Yeah.

Or other way around.

Yeah.

No, did I say that right?

Yeah.

Yeah, yeah, yeah. There we go.

Another one that I really, really like is the values question, values. You hear that a lot. What are the things that you value? I hate the hobby question. I don't like passion because that's so big. I mean, passion. So sometimes we forget that the things that matter to us are the small thing. I think Mark Mandel, was it Mark Mandell? He says, "What's big to you, but small to the rest of the world?" I love that question. I think that's a really, really good question to ask in jury selection.

Yeah. Harry has a good one I really like. Harry, what's the one where you use a passion that you have that others may think are silly or something like that?

Yeah, that's the one that I sometimes like work. Basically, how many of you have something that is really important to you? It could be passion. I can't remember what word we used, but if you described it to a stranger, they may not think it sounds silly or not important to them. And when you add that second part of it, you're getting them ready to understand because then it sets up at the end, people talk about it and they say things like, I can't remember funny, I like ballroom dancing and I like that. And sometimes I'll say, yeah.

Well, I had the one we tried in Santa Monica a few years ago where the woman broke her wrist, but the same thing. She looks active and she really super physical before. She was in her 60s. She did this thing called dragon boating.

I

Didn't know what that was, but it's apparently like canoe racing, but these boats look like they're these dragon boats and it's like a thing that people do in their 60s and 70s in the marina in LA apparently. It's a big deal for them obviously, but that was a big passion of hers and she couldn't do it anymore and it was devastating for her.

That

Was the first time we, I don't even know if I was able to use it in that trial, but that was one of the questions you gave me because no one's going to be like dragon boating. You can't do that now. Who gives a shit? But for her, it was devastating. And we developed that theme that Jesse, you're kind of hitting on with your whole foundation for your work. And it's just that question is really important because then people realize that you're really ... The person that is in this trial is the victim, is the one that is going through all this and you have to assess them, appraise them. Without that, it's like if I don't introduce that early, they're not going to get dragon boating.

Yeah. And the key to that question too is to, then I follow up, you hear get a bunch of shares, then you follow up by saying, "Now you're going to hear about some of the passions or whatever in my client's life. Are you able to decide what they meant to him even if, and I like to make a joke here, even if let's say it's a marathon or something, even if some of you would probably pay money to never run a marathon in your life." And they all laugh and everything, but they get that. I think you have to tie that concept of, yeah, I have things so important to me that other people would think is silly, so I'm not going to think that this thing is silly from this plaintiff. Yeah.

Well, yeah, exactly. And limiting the word passions or hobbies, I like to use the phrase little things. It's the little things. When you're hurt, when you're in pain, this is Jesse's experience. When my wife is profoundly injured, my wife actually has a brain injury. You would know that looking at her. I have her permission to talk about this, but boy, those little things really mattered. Those little things that flew under the radar, the little things like having a cup of coffee together in the morning or making her laugh or going for a walk in a park. Simple, ordinary things that for the rest of us, give me a freaking break.

In comparison to climbing Mount Everest or jumping out of big milestone moments, what's walking in a park or watching Dumb and Dumber in the other room with my wife? Well, for me, it's everything. Those little things ain't little. That's why I lean on joy. The little things enjoy ain't nothing little about little when you're in pain because those little things are everything. What if something in your life is big to you, but small to the rest of the world? In other words, the little things. Maybe the rest of us going, "Yeah, but for you, it's really important." Then we start to look at those little things in a different context, and then that opens up the door. And for me, I call it the most important juror because the most important juror is you. You find, and I quote Bruce Lee all the time, "Be water, my friend.

You find what works. You don't find some formulaic, you say this and now you say that. " Can that crap

Because who cares? I totally agree with that 100%.

Checklist in the world won't do anything because now we're seeing somebody's, oh, form some formulaic approach. Screw that

Crap. No, no. I was just going to say, I mean, that's been the beauty of being able to do these podcasts because we're talking to attorneys that and non-attorneys like yourself, David Ball, who have totally different styles, different methods, different the way they talk about thing, the way they say, it's great. I mean, it's the beautiful thing about it. And for our listeners, it's really finding your voice, what works for you. Harry, what were you going to

Say? I was going to say, yeah, people have been coming up to me and telling me they love the podcast a lot recently. And the one thing that they share with me is that they love how there's just, we bring on different ideas for them. And not everyone has to be theirs, but it's just not the same person given the same advice. And I like it. The crazier, not to say anything about you, Jesse, but theoretically, the crazy idea, the better. I mean, I want push the envelope with ideas because there's so many lawyers and consultants that do different things and bring great ideas to the table that most people don't know about. And so I love ones that are outside of the box. Jesse, what are some things? Are there some questions that you like to use to identify bad jurors or is it people who just kind of scoff at the questions who kind of go, "I got nothing to share."

If you don't mind, surely we can answer, but I actually want to stick to the last question we were talking because that question you're asking, what does victim to victor look like? And I looked at this as a victim to victor theme, following up with a simple question like what is big to you, but small to the rest of the world, the little things, then that gets you on the door to ask the values question. And the values question is now you get to go deeper with your jurors. Okay. We talked about some of the things that are important to us. What I'd like to do is to go deeper with you on this, guys, is what are the things that you feel that have been passed on to you that make you you? What are those values or those gifts from somebody else that make you you?

And what is something that you value Mr. Smith? And Mr. Smith will raise his hand. And this is an answer I actually would hear a lot from inmates is, "Well, what's really important to me is being a father." Well, why is being a father so important to you? Well, because I never had much of a father. So what I'm hearing you say is the value came from something that you didn't have. Well, yeah, because when he was around, when my dad was around, he beat the living you know what out of my sisters, my mom, and I told myself that when I was a father, that I would never be like that person. So you hear that value and you hear that value and you hear that value and you hear value, the things that make you ... And eventually you're going to land on the values of your client, you're going to land on the values of the defendant, the villain, integrity, dignity, listening, being a father, whatever that is.

You find the things that speak to the moral theme, the framework of your case, but here's the important follow-up question to values. Okay? It's not enough just to identify your juror's values. What I like is values tested. So Mr. Fitzgerald, you were raising your hand and you said that integrity is a really important thing for you. Why is that so important to you? And Mr. Fitzgerald gives his answer and then has that integrity ever been tested for you? Yeah, what? I was a drinker for many years and I really, really struggled with that a lot and I pushed my family away from me. I had to come clean with my kids about a lot of things that I feel really, really ashamed about. And I made what I call the recovery movement calls making a living amends and coming clean to them was really, really important.

Values tested, listening. Okay. Listening, Ms. Smith, you raised your hand. Listening is so important for you. Why? She gives her answer. Was that Value ever tested for you? Well, it wasn't so much tested for me, it was tested for my husband. And because I said, "Listen, when you stop listening to me, I'm done. I need to walk away." Values tested, values tested. And so what we're doing now is we're setting up two things. The values that have been tested from the defendant, because when you're the villain's victor story, which is a whole other thing, how does the defendant want to be seen and how do they want to be judged by the rest of the world? You find out what they value and how those values have been tested. But then when you're telling your client's story on the stand, whether you're giving us the Netflix approach and opening statement or what the jurors see and direct, we're seeing the values of a mom.

We're seeing the values of a father. Sometimes in witness prep, and I also recommend this in good direct examination, asking your client on the stand, "Who's somebody in your life living or not living who inspires you? Well, my grandmother. Well, let's talk about your grandma. Why was she so inspiring? If you can identify, let's say the top three values of those gifts that she passed on to you that make you you, what are they? Well, that's all in her act one. She's talking about those values. And now we're setting up for act two where those values have been tested. But the Victor's story is how that person has risen to not identify themselves by their pain, but by the strength of trying to overcome their pain. Where does that begin with the real conversation in jury selection? So I'm huge on values versus values tested.

Does that make sense?

So yeah, absolutely. But obviously you're going to have to have pretty unlimited voir dire, I think, to do this approach or are you not?

It doesn't have to be some big rabbit. You can do it in about 10 or 15 minutes. Anybody feel that dignity is a pretty important thing? Anybody feel that listening is an important thing. Anybody feel that the values of whatever that is of what we're talking about here is an important thing. And I think as long as you've got two or three people sharing the struggle or where that value has been tested, then you can say, so in other words, can we all agree that when values are tested, it creates an even greater value? And the reason why I'm asking this, and you can decide to say this or not in jury selection, sometimes it makes sense to say it in jury to selection or wait till the entire trial before you get to rebuttal. And then you say, remember two weeks or two months ago when jury selection, we were talking about values versus values tested.

Well, here we are. What are the values of this case? What have we seen? Where have they been tested? That's why I was asking you these questions. And then, or in jury selection, the reason I'm asking you these questions, thank you, Judge, for allowing me this time, is because these are the values of this case. Dignity. This case is about ... I keep coming back to diddy because that's a recent trial I'm working on. This case is about dignity and I need 12 jurors who are going to stand up for this value. It's not for the faint of heart.

No, I like it. I like it a lot. Let's take a quick break to thank our wonderful sponsors. And obviously first and foremost, I want to thank LawPods for making this all possible, giving us great content out there. We need it now more than ever, that's for sure. So thank you to LawPods. Let's thank our first sponsor. I'm very excited for this gentleman who has decided to support this show. He's a very good friend of mine, John Teesa of Teesa Film and Tech. He has been my trial tech I think for the last 10 years. One of my first big trials, he was there working for another company. John Teesa really is just one of the best out there, a very humble guy. But if you need a trial tech, someone that is literally going to work any hours, anytime he is available, he's quick, he makes your trials seamless, easy.

He can do it all really. We use him for literally everything technological in trial. He does our depo clips. We play a lot of depos and opening throughout our case. He'll do clips on the fly. He helps me with all my PowerPoints and opening statement. He is my right-hand man at trial. He'll sit there in the hot seat, great with exhibits. Really, I just can't speak highly enough of John Teesa from Teesa Film and Tech. He's doing cases throughout California, but I know we started to expand out of state. He has an amazing team of people. When he's in trial and I need him, he always gets me someone who is top-notch so I really can put on the best case. I can't recommend John Teesa from Teesa Film and Tech.

If you're trying to do all that stuff on your own, man, you're missing something in terms of prepping for the actual jury. So you guys, if you're trying a case, you need somebody doing that tech, all that stuff for you after hours. I mean, after hours, you're prepping for the next plaintiff. You're not putting together depo clips and demonstratives and things like that, right, Dan?

No, man. I mean, not at all that recent verdict we had in San Diego. I mean, he was working with us. We had a lot of depo clips from video witnesses, like lay witnesses, and he put together this beautiful montage. It was almost like a documentary, just all these things these people were saying about my client who suffered a traumatic brain injury. And he put together this thing that was like a documentary that I was able to play in closing because it was all in evidence and it just looked so good and so clean. And the jury really liked it. So can't speak highly enough of John Tisa. How

Do you get in touch with him? How do you spell his last name for the viewers who want to get in touch with him or how do you get in touch with him?

Tisa, T-I-S-A Film and Tech. And his information will be on all of our promotional materials and all that. So John Teesa, one of the top out there. Our next sponsor who is always supportive of our podcast and the plaintiff's bar is Melissa Baldwin from Baldwin Settlements. She really is the go- to structured settlement vendor out there. She's another person that I have known for over a decade, extremely supportive of the plaintiff's bar, Calla, CAOC, AAJ. She will get the best deals for your clients, get them the most money in their pockets from a structured settlement. She works great with clients who may not be that sophisticated. I had a really catastrophic injury death, or not a death, but it was a nearly a death where my client was not very sophisticated. He had some drug issues and she was able to speak at his level and get him to do a structure that really helped set him up and his family up for the rest of their lives.

Got him a great rate. She also structures attorney's fees, which is something I've started to do lately, just structuring fees so you can kind of have a little nest egg built up for either your business or yourself. Melissa Baldwin from Baldwin Settlements, really just a fantastic person, a great businesswoman, a great mother and a great friend who I highly recommend, Melissa Baldwin from Baldwin Settlements. All right. Thank you again to our sponsors. Now let's hop back in, Jesse. Before we get to your other kind of questions that you do, I'm curious, you said you don't like the hobbies or passions one because you think they're too broad. Elaborate on that a little bit.

Yeah. Well, typically when you hear a word passion, when somebody says passion, it makes it ... When I say too broad, it somehow doesn't equate with the little things. And the little things was when I'm working with the witness, we haven't talked about act three. Act three is the victor story/try stories, T-R-Y. The only other three letter word that I liked, say that three times fast, more than the word J-O-Y is T-R-Y. And when I'm working with witnesses, I have them imagined a big giant bucket in front of them. And by the end of our work and then leading up to deposition or trial, I have them filling up as many examples as they can think of of what they're trying to do to live their best life. And those try things often are the little things, not huge monumental things like trying to get up out of bed, walking around the park in the morning, trying to be nicer to my wife, meeting her in the morning and getting her a cup of coffee, the little things.

When you're in pain ain't nothing little about little. So coming back to something in your life that's big to you, but small to the rest of the world, it focuses the conversation on the power of the little things. And then you could say, "Well, is it fair to say that that little thing that we're talking about that's big to you to the rest of the world, is that a passion of yours?" Then you can drop in a passion. But if you start with passion, it just sounds like ... I don't know why. It's like a great lawyer I worked with, an old timer said, "In jury selection, you want to buy him a drink first." If I'm dating somebody, and I've been married for a while, so I can't even remember what that's like, but for me, to start out the gate with saying, "What's your

Passion?" Dude, I agree with you, man. I mean, the first thing you think is kind of sexual, right? I mean, that's one of the first things you think, and it's kind of like- That's

What I mean though when I asked that question. I'm trying to steer the conversation there.

Yeah, yeah. No, no, no, no, no, no. I'm not talking about golf, sir. I'm not talking about golf. We're talking about in the bedroom, sir.

I don't know if this is me, this is my own bias speaking. The hobby question, it's like I picture a saddled man whittling away in his basement, my hobby. I've got nothing else to do.

Dude, honestly, I don't have a fucking hobby. I don't know. My buddy who has a lot of hobbies, and God bless him, he's great at all his hobbies. The law's kind of towards the bottom of that. I don't know. I love doing this shit.

I've got no friends. So I might as well pick up stamp collecting.That's what it feels-

No offense to our listeners out there who have hobbies.

Collecting and no offense to anybody, but that's me, that's my own bias. Other people agree with me a lot of them, but hobby or passion could come out of the conversation with the little things, but specifically little things that give us a little bit of gratitude and give us a little bit of joy that's big to you, but for the small to the rest of the world, sets you up for us to want to fight for the client who is trying to hold onto those little things because what we wouldn't give for those little things if those little things were taken from us. That's why it's so important. That's why it's like passion or hobby doesn't get you in the gate.

Well, honestly, I've never really thought about this, but I think this is a good subject, but it's like a hobby almost minimizes whatever the thing the person doesn't. If, I don't know, skiing is the most important thing in their life, they go 40 times a year, that's not really a hobby to them when they're thinking about it. And then passion-

Something you love to do. Yeah.

Maybe it's just that simple. Yeah. It's like, what do you love to do?

What gets you out of bed in the morning? What's the kind of thing that gets you out of bed more than anything else or just

Something like that? Yeah. Yeah. Or what would you miss the most if it got taken away? I like the way you do it, Jesse. I mean, I think it's good. I like that is the key because I think people will be-

Everyday things that we don't really think about until they're taken away from us and

Folks- That you'd miss the most.

The reason why I'm talking to you about this is because that's why we're here. So let's talk about pain and suffering. Let's talk about-

Let me ask you this, Jesse.

They're taken from us. How do we feel about it? Yes, sir.

Yeah. Do you ever see jurors that ... Because I feel like I've seen a lot, but do you see jurors who kind of go, "Nope, nothing. Nothing to say. Nothing comes to mind." Do you see those jurors and do you feel like those are the ones that are not going to be receptive to this story at all if they just kind of say, "I don't got anything."

Push back like hell on them, but have fun with it.

Well, ask me because honestly, I'm trying to think what I would say. I mean, I love obviously my family. I love coaching my son's baseball. I don't know. I wouldn't consider that ... I mean, those things, I guess, like doing this, like being-

Coaching your son's baseball.

Yeah. Yeah. No, I love doing it, but that's not ... Is it a passion? No. Is it a-

Okay, so let's take out passion.

Okay.

Take out passion and let's take out hobby. What does that thing with your son allow you to do? Coaching your son gets you what?

Well, sometimes he gets me frustrated when he doesn't pay attention to me. But aside from that, I mean, I probably love it just because I think I love seeing the kids. I love seeing them learn. I love seeing them pick up a swing, learn how to hit the ball, fielding, just how they progress. I really do just love doing that. I love playing baseball again, personally. I think it brings back memories of me playing.

Look at all the beautiful things that you say. Those are all values. And if you were to quantify the amount of time that you spent coaching your son, if you were to give it just a ballpark, so to speak.

And during the season, I mean, we do hour practice, hour game, and then we'll try to practice during the week as much as ... He's only six, so

It's

A little tough, but a few hours a week, a couple hours a week. I don't know.

If you were hurt and something and bad happened to you and you took away five hours of that time, would that make a difference to you?

Absolutely. Yeah, absolutely. It'd be a big deal to me.

I wrestle with my kid every night. He's kicking my butt. He's got his ground game pretty good. He's 10 years old. But if you took away one minute of my wrestling time with him because I had to hide my pain from him, and the rest of the time I'm trying to fight through that pain. If you took away one minute, that's worth a hell of a lot of money for me. That's worth a lot. So that's why those ordinary, simple things, you don't ever have to say passion. You never have to say hobby. It's so obvious, just like you never have to say the word mask and you never have to say the word greed. These things speak for themselves. Passion to feel so forced and can. The simple ordinary everyday things like coaching your kid, that contains passion within and you never have to say it.

Well, but I want to go back to Harry's kind of hypothetical because a lot of jurors are like this, and I think especially nowadays in society, we've become, we're on our screens all day in the computer, then we don't socialize anymore. We don't do that as much. So then we go home and then they watch their Netflix, whatever it may be. That's sadly what a lot of society's doing nowadays. And so the person says, like Harry's saying, maybe they're a high level worker or maybe not, but they're just like, "I work a lot."

So yeah, I've seen some jurors who say, "I don't do anything." I mean, they have nothing to say. And I worry that those people, I mean, I feel like those jurors are not going to relate to the story and not going to have a lot of empathy and put a big value on those things because they're just like, "I don't do anything. I just work and I rest." Or sometimes we'll say, "What's the thing that you love to do in your spare time?" And some will just say, "Sleep in. " And they don't say it with a big smile on their face. They're never very happy looking when they talk about those things. So those are the juries I worry about. Yeah.

So for you, Harry, would you automatically discount a juror just based on those answers? Or I mean, how much more would you want the attorney to dig on that? Or what digging would you ... And maybe this question for Jesse too. I mean, what do you do when you hit that person? I mean, what's the follow-up?

That'd be a red flag for me. And then I'd hit it a different way when you're talking about, not just themselves, but talk about you're going to have to put a value on someone's quality of life and how do you feel about that? And if they are a little bit negative about that too, now I'm going, okay, they don't seem to put a value on their own time and they don't seem to put a value on anyone else's time. That's a big concern. Some people though are just like, "Oh, that's just me, but other people, they're very sympathetic and empathetic." So I wouldn't rule them out just because they don't have anything in their lives that they seem to be not passionate, but passionate about. But for me, I think it is a red flag. And I think when you're getting a bunch of shares and there's this one guy who just like, "I don't want to talk about this.

I don't really have anything to say." That is a red flag for me at least. Yeah. But I'm wondering if you've seen that. Yeah.

Yeah. I wouldn't dig anymore either because then the person can start feeling bad about their life. I don't know,

Potentially. Now you're shaming them out. Really? You don't have anything in your life that you enjoy and now you're

Cross-examining them and then it's an interrogation and no longer a conversation. So there's a degree to what you want to push back and then there's just back off. And trust, trust that that juror obviously cares about something. You don't need him to spoonfeed you. Everybody cares about something and you're going to trust. I wouldn't say that's a deal breaker to say, "Well, I'm going to strike this person because he doesn't care about something." Unless you're an Android, everybody cares about something and then caring about, you might find that you might be able to get him, and I've seen this happen before, where when you circle back then to the value question, what is something that you value that makes you you and where did you get it from? That gets you in the door a lot more than what is something that's big to you, but something to the rest of the world.

Well, standing up for other people and not being bullied. Well, that's an interesting question. I'm going to ask, then that opens it up because that came from the juror who initially didn't tell you anything that they like, but they're telling you about what they actually care for, which is the value of standing up for somebody. And has anybody here ever been bullied before? Has anybody ever had to stand up to a bully? And then that's a great victory themed question. Another one is, which I've rarely ever heard is, have you ever been called a liar before?

What's your goal in that one, Jesse?

My goal in that is to hear about how they've stood up. How has somebody tried to stamp out that person? What have they tried to do to erase you? And the reason why that's so important to the value of being called a liar. And that's what they're saying about my client. They're a liar, cheater and a fraud.

Yeah. No, I'm getting it. I mean, I think it's obviously, that question leads you different places. I guess for Harry, if you're looking for the bad jurors, obviously the person really doesn't have, like we talked about, the person that works, comes home in their pajamas, goes back to work, all that stuff. That really is just not giving you much. Your red flag on that jurors. But Jesse, I think your thing with your victim to victor approach in jury selection is really to get the stories out there to develop, get the stories and the concepts, the theories, the themes, all that coming out from the jurors.

Building the moral framework, your case. I mean, I take this quite literally from the theater that every play is a morality play. So is trial and that's what you're building.

Yeah. So for our listeners, you can get both things from it. You can find out the bad jurors and then you also develop your good jurors, your good themes and all that. Absolutely.

Jesse, do you teach any kind of what they call ... I mean, it's not my term, but I've heard of from people like exclusionary voir dire questions, or do you stay away from those? I mean, ones that ...

Do you want to avoid altogether?

No. I mean, some of them lawyers, they use that term, exclusionary voir dire is the voir dire of only searching for bad answers and bad things and who can't be fair and who doesn't agree with my case for this reason. As opposed to inclusionary, which you could all be great jurors. And tell me about talking about building a tribe is considered to be inclusionary. Whereas the jurors who go, "All I'm doing is asking negative questions and getting cause and not asking about anything good." That's exclusionary voir dire.

Yeah. I think it's a hybrid of both. I would lean more on the exclusionary than the inclusionary actually. Yeah. And I think they would too because you're not there to pander, you're not there to be nice. I don't even like starting voir dire jury selection with good morning because it's so canned. I'm always in the role of the crossarm juror. That's where I want to be.

So what would you say instead of good morning?

I would get right to it. Why are we here? Let's talk about why we're here. Let's talk about what is important in this case. And then whether you're allowed to do a mini opening statement or not, you're still giving a mini opening statement and get right after it and let the jurors wrestle with their bias right out the gate within the first five minutes of jury selection. You want to grab them. Can the good morning crap because it's horse crap. I don't care how you say it. It sounds pandering. Good morning. Morning. Good morning. Or I bet you got this thing called a jury summons and you weren't too excited about being can that crap. I would much rather be ... I'm not saying you got to be a jerk. And that's now what I'm saying, but you got to be tough with love.

I want to hear your very first that you recommend to attorneys, what's your very first three sentences?

This is an important case, and let's talk about why you're here. Or what would be the hookline of your opening statement? We all share the road every day with other drivers and you're here to right or wrong and I need to have a conversation with you about that. Boom, get right after it. Don't treat your jury selection like it's not opening statement because it is opening statement. Don't wait for the conversation to get the opening statement. That's what I mean. And so grab them, hook them. Let them know you're the kind of lawyer who's not there to waste their freaking time.

Yeah. No, I think that's a big point. And I think so many attorneys, I mean, I used to be guilty of this too. You try to use jury selections to impress jurors with your charisma, your charm, your oratory skills and all that. And they already think lawyers are all bullshitters. And

So- It's biased against you, you freaking jerk. You're here to unearth the biases in your case. How about you?

Yeah.

The minute you stand up and you say good morning, you're now feeding bias. So I'd rather you be the tough guy, the exclusionary guy, but not just the exclusionary. I mean, absolutely find the good. Find the good, but push back on them. Devils advocate them. Help me understand. Don't just settle for, oh, who here all good agrees to be fair and impartial? Horse crap. Call him on it.

I think you do both and also be a friendly person and a likable person. I mean, I want to make sure that clear that you should always try to be smiling.

Absolutely. Look, you're setting up the moral framework of your case. Your job is to show them what a moral looking ... Be Atticus Finch, but be a little bit tougher than Atticus Finch. You know who you want to be like? You guys seen the movie Eight Mile?

Yeah.

How does Eminem be rabbit at the end, win the rap battle? What does he do? He calls himself out, doesn't he?

Is that what he does? I don't remember.

It's at the end of the movie. The beginning of the movie, he's choking and mom spaghetti, vomit, all that stuff. And he works himself up to the finale at the end and he faces the adversary Papa Doc and Papa Doc, they face off and Eminem basically destroys himself. He goes, "Yeah, my friend did shoot himself in the foot and my mom does live in a trailer park and da, da, da, da, and he's bagging on himself, not on the other guy." And he takes the fuel completely out of the other guy's attack. And so when it's the other guy's turn, Papa Doc's turn, Papa Doc chokes, the crowd goes wide. And then Eminem turns to the crowd and he says, "F you all. I don't care what you think about me. " And they go crazy and they love him. So I'm not saying you got to be a jerk.

Is that your third book, Eight Miles to Justice, Jesse? You like that? That's a free one there for you. That baby.

Eight miles to joke. Ooh.

Framer. You can steal that.

But that's the idea is that you're not there to be the nice guy. You could be kind, but you can be fierce. You could be fierce and you need to be kind. Who are the greatest teachers that you know? They didn't let you off the hook, but they were kind. They taught with love. They didn't shame. They didn't degrade. They didn't put down. They built the tribe, but they pushed back heavily. This is why the name of my book is called The Most Important Juror, and that's you. You've got to get yourself on board. You've been living with this trial for ... You've got to take it so freaking personally. I'm not talking about personally in the sense that you're angry in there. I'm talking about the kind of personal thing that, look, ladies and gentlemen, you're either going to believe that I'm full of crap or you're not.

There ain't nothing I could say or do that's going to make you think that I'm not full of crap. I'm not here to win you over. Okay? This is about seeking the truth. And so I know what this case is about and you've got to trust that I know how this ends, but you're not there yet, but I know how this ends because I've gotten myself on board with the moral framework of this case. I know how the defense is right and how we still win. I know what the victor's story of my client is. And if I'm fired up by the victor story of my client, I'm not afraid of anything because I can't wait for you to see the strength of this person and how they have overcome their pain. And I know what the joke is. I know what is something that is so true about this case and the egregious actions of the defendant that I can't help but laugh and I know that you're going to feel that way too.

I'm coming in there. That's the moral energy that I'm bringing in. Jurors can feel that and you're creating trust. That's true persuasion. That's where you need to be as the most important juror. Then have the right conversation. Then you'll never have to say, "Good morning. Good morning. Morning. You got this jury thumb. Shut up, man. Get to it. " I

Kind of want to highlight this a little bit because I think so many times, especially trial lawyers, we're not people pleasers and are probably in the office or with opposing counsel and all that. But I do think sometimes, and I think to your point, you want to make sure you don't want to piss off the judge and you definitely don't want to piss off the jury. And maybe piss off is the wrong word, but I see where you're going with it all, Jesse. I think it's a really good point. I mean, over time, takes like getting seven to 10 years in where I'm fine to battle with a judge. I will go toe to toe with a judge. I'll do it respectfully, but I also won't let them put me down or I will argue with them. I just won't give up. And with jurors, you got to finesse it a little differently, especially when you're doing jury selection.

And you don't want to be a people pleaser, but to your point, it's okay to push back a little bit. And I think some of us, we get a little scared to do that because we're worried that we're going to look like an asshole. But if you're respectful and kind in the way you ... It's almost like you're not pushing back maybe not be the right word. I don't even know if challenging is the right word, but you play devil's advocate. I think that's a good way you said it earlier. And I think it's okay for us to do that. They're not going to get mad. They're going to respect you, I think. I mean, Harry, what are your thoughts?

Yeah, no, I agree. I mean, yeah, I don't like sucking up. I mean, jurors will see through when you're trying to suck up to them too much, for sure.

Yeah.

So there's a balance between ... I mean, just being a genuine person and talking to them like adult to adult is better than any attempt that you're making. I'm going to ingratiate myself by doing this. They're going to see through any attempt to ingratiate yourself.

Well, listen, Nick Rowley is a good friend of mine, and this is the power of his brutal honesty. I have no problem with the words brutal honesty, but the problem that I have with brutal honesty is that so many people use that word like it's a fricking parlor trick. Like it's a, you're a used car salesman. They'll just say that line. So I don't care if you say brutal honesty or blobbity cuckoo poo. The biggest problem I have with brutal honesty is that you haven't created a culture and an environment of brutal honesty.

You can't just say it. You got to actually-

Say it. You got to back it. Yeah. What, man?

Yeah.

How many times have I heard brutal honesty? How do you feel about brutal honesty? You're not creating brutal honesty. You're just asking the checklist question. That's not a conversation. That's a checklist question. That's not embracing the suck. That's talking about the suck. And embracing versus talking is a vast, vast difference. You want to create the culture of brutal honesty. That's what's missing. So yeah, that's why I say stop saying good morning.

Well, so how do you create that culture of brutal honesty early on then? How do you recommend doing that?

Well, an example of is whether you're allowed to do many opening statement or not, you're weaving in many opening statement. These are the facts about the case. Here's our issues and here's some core struggles that I would like to talk to you about. And these aren't going to be tough. I'm sorry. These aren't going to be easy questions to talk about and I need 12 jurors who are going to stand up to that because it's a really, really important case. So let's have a conversation. You're changing the atmosphere right out the gate. You're raising the stakes, as we say in the theater, and then you're setting the stakes for the brutal honesty.

Yeah. Yeah. Yeah. No, I like that. I like that. I mean, I think the title of this episode is Ditch the Checklist. Another book title.

We're creating four or five book titles for

You. This episode alone,

Jesse.

I never do this, but I guess I'm just looking at Jesse's bio and he's got all these titles and he's an actor. So I was like, "All right, might as well."

So every case should have its own title and every scene in your opening statement, I like to put titles in there. I'll ask jurors. If this story had a title to it, what would it be? You get some great stuff. What would the defendant's title be? What's the victor title going to be? Yeah.

Well, on that note, Jesse Wilson, thank you so much, man. I mean, how can people get ahold of you if some attorneys want to reach out and work with you?

Well, first of all, thank you guys for having me. I really respect what you're doing. I think it's really, really important stuff. And the fact that you're embracing the philosophy of Bruce Lee, which is be water, my friend, approach to advocacy, I think is really, really important. I'm easy to get ahold of Jesse@tellthewinningstory.com is my email. And my website is tellthewinningstory.com. My books are at trial guides, witness preparation, and the most important juror. So give me a shout.

Accepting pre-orders

For- And do you have another one coming out? Are you working on another one? Just the checklist. I

Think it's pretty damn good. I'll credit you,

Dan. Sorry, I interrupted. Are you working on now one right now?

I'm working on a third book. Yeah. Mastering direct, cross-examination.

Yeah. Very cool.

Yeah. A deeper dive into the witness preparation work. Yeah. Awesome. So yeah, I'm happy to be here. Thank you.

Thank you so much, Jesse. We'll be sure to read all those. Maybe we'll get a signed copy. And everyone, go read them. Check out his website. A great guy really does great work for the plaintiff's bar and for all of our clients, which is the most important thing. So with that, Harry, I'll see you soon, buddy. Hopefully in court. Thank you to LawPods and all our sponsors. This has been an awesome episode. We'll see you all soon.

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