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The Stockdale Paradox

1. Stay firm in your belief that you will prevail in the end;2. Confront the brutal facts around you.

Optimism alone can lead to dismal

failure...

“We’re the good guys”

is not enough...How The Mighty Fail p. 148

Bias is out there...

“Life is 80% Emotion and 20%

Intellect”

•Frank Luntz - Political Strategist

•Is that true for jurors???

Let’s watch this real juror in a real trial....

Is this juror using his intellect in prejudging the case during VD?Or his emotions and values?

Life is a comedy to those who think - and a tragedy to those who feel....

Jean de la Bruyere

17th century French moralist

What side of the tragedy was that juror on?

Your next jury will be stocked with more

“feeling” people than “thinking” people...

Will we frame the tragedy for them?

Or, at the end of the day, will they create

one for us?

The Lawyers Paradox:

We, as logical thinkers, often present a case as if the jury was composed of 12 more logical

thinkers.

But we know that people vote their values

- over their own self interests and intellect

During Voir Dire we must connect with - and then own -

the jurors’ values that will accommodate and set up the

tragedy...

What are those values?

Juror Values

•Common Sense

•Personal & Professional Responsibility

•Accountability

•Rule of Law (Jury Instrxns)

These values are the Alpha and the Omega of your trial...

The Alpha:

How do we connect with, lock in, and own these values during

Voir Dire?•Mr. Jones, what are your responsibilities at the factory

•What is the purpose of that manual at your factory?

•What happens if you don’t follow it?

•What ab/ the entire manual? Important?

(The Jury Instrxns - line by line)

(The Trucking Co. Safety Manual)

The Omega:

The jury instructions are now your manual and they REQUIRE attention to these important elements of the law of losses and damages. This is what makes the law  fair and reasonable within the realm of human experience - because it addresses ALL of the human losses - all of which are important and valuable - or they’d not be there.

Setting up the closing in voir dire

The Tragedy -The Story

OUR JOB AS LAWYERS:

To present a fact-neutral values-based story, which at the very least will not offend and at the very best will

be consistent with the values of those who have entered the jury box holding pre-sets against us.

To present a fact-neutral values-based story, which at the very least will not

offend and at the very best will be consistent with the values of those

who have entered the jury box holding pre-sets against us.

Trial is Story

Story is Drama

Drama is Conflict

Fact-Neutrals Story

Values Juror Pre-Sets

Fact-Neutrals

•Drive the Story

•Story is values - based

•The Values = Juror Feelings/Values/Emotions

When done properly:When done properly:

Drama is Created.

Conflict is achieved.

The Story is Framed

And it should be a tragedy to those who feel...

In your case, at what point in time do your jurors start

putting together their story?

“I’m trying to put together a story

here, which might not be the right

thing for me to be doing right now......”

Right or Wrong, Good or Bad - - - they are putting their stories together during your

Voir Dire...

It’s our job to introduce them to the values of the story - by way of themselves - through their own personal/professional experiences.

The jurors are the stars of the show during VD. Please let them shine...

Voir Dire:

Setting Up the Tragedy

Tragedy happens when

Behaviorsoffend Juror Values

Your fact-neutral values-based story

must recognize and focus on those

Juror Values

Where was that Juror’s story going?

“we’re just humans”

“everybody makes mistakes”

(hey, stuff happens)

Bias IS out there...

Good News:

With the help of primacy, you can set the values of the case during voir dire

and own them through the trial!

Values are the Alpha and Omega of your trial...

How is that done in a your case???

Common sense =- record keeping

- speed limit- driving within hours

Personal / Professional

Responsibility =

- proper maintenance- rules of road

- proper planning

Accountability = consequences

Jury Instrxns = All of the Above

These ALL correlate to Mr. Smith’s responsibilities at the plant and Mrs. Jones’ responsibilities at the factory...Develop them as early as possible.

Introduce, cultivate, and process these

values during your voir dire

Voir Dire cannot be planned or conducted in a

vacuum...

A trial is

ALL Values ALL the time

PD as System

(in nearly any case.....)

A Homing Device...Where I am?Why am I here? Where am I going?

Show PDF from Desktop

All “SYSTEMS” have:

•1. persons

•2. purpose

•3. equipment

PD as “System”

•Goal = Generating $$$

•by providing service or product

•w/ a values-based purpose

PD “Persons”

•POs

•Dispatchers

•Support personnel

PD “Purpose” = Values-Based :

•Safety of general public

•Serving needs of Community

•Safety of Driving Public

PD Equipment

•Cars, cams, etc...

•Breathalyzer Equip

•Warrants

For System to Function Properly: to

For System to Function Properly: to

The PURPOSE is served when:

All PERSONS act responsibly at all times

The EQUIPMENT is maintained

Rules are followed

This is “BALANCE” w/in the System

System is compromised by a

person’s:

System is compromised by a

person’s:Lack of Common Sense

Lack of Personal/Professional Responsibility

Lack of Training

Failure to follow rules

Harm is NEVER caused by inanimate equipment alone

But rather by a person’s choice as to how, when and where to use, or what to do with, the equipment

REMEMBER:REMEMBER:The PERSONS are trained to prevent harm

The PURPOSE is designed to prevent harm

The EQUIPMENT is operated to prevent harm

Linking up the Fact-Neutrals to the Juror Values

The juror values are the Alpha and the Omega of

your trial!

Worthwhile achievements require

hard work. There are no shortcuts...

Worthwhile achievements require

hard work. There are no shortcuts...

•During VOIR DIRE

•Common Sense

•Personal / Professional Responsibility

•Accountability

•Jury Instruxns

The Database of Intent - what is

America wanting to know?

•January 14, 2010

•Haiti Earthquake?

•Bank Bailouts?

•Unemployment numbers?

No Matter what you are concerned about the day of

your trial...

•Their concerns are dramatically different.

The Movies in Their Minds

Who determines the Trial/Juror Values?

Who determines the Trial/Juror Values?

Trial is Story

A TRIAL IS A STORY• Your Client’s Version

• Your Paralegal’s Version

• Your Version

• The Judge’s Version

•Each Juror’s Own Version

The 12 different juror versions are the ones that matter

most ...

Story is Drama

Once a mind is made up, it’s almost impossible to change it. The average person can tolerate being told something which he or she knows nothing about. But the average person cannot tolerate being told he or she is wrong. Mind changing is the road to … disaster.

Al Ries, Jack Trout. Positioning: The Battle for Your Mind, 20th Anniversary Edition. (McGraw-

Hill, 2000). Page 7.

Our job is to allow them to be right - in their values in the story that is

framed

New School:

Re-Frame the Conflict

New School Conflict:

PD v. JV

Primacy....you do.....

Drama is Conflict

Trial is Story

• Story is conflict

• Conflicting Values

• Between PD and Values Held By Jurors

Absolute Juror Values:

•Common Sense

•Personal Responsibility

•Accountability

•RULE OF LAW!

People vote their VALUES -not their self-

interests.

Geo. Lakoff

People make decisions based on

their pre-set values. You will

NOT change their mind

The mind is a lot like a computer with one important difference. A computer will accept all of what you put into it. The mind does not. It accepts only that new information which matches its current state of mind (values). It filters out everything else.

Al Ries, Jack Trout. Positioning: The Battle for Your Mind

So........How do we tap into the Jurors values?

Through the crafting of Story

Juror Values vs.

PDs Fact-Neutral Choices

Ask yourself:

•Are they likely to come to me?

•Or ... should I meet them where they are?

Primacy: The continuum of believing what we already believe....

Story is Drama

Drama is Conflict......

Setting the Hook

Anchoring the Values

Give Them What They Already

Believe!•Common Sense

•Personal Responsibility

•Accountability

•RULE OF LAW!

“JUST” during Voir Dire

= in accordance with standards.