DAVID CLARK THOUGHTS ABOUT JURY PERSUATION

David Clark of  Omaha is a student of persuasion. He was nice enough to share his thoughts about the subject of  schemias.(See my last  blog entry)  David is writing a book called “The Trial Rhetoric of Gerry Spence” which is to be published by Simon & Schuster. If you are like me, you’ll have a reminder to buy it when it’s available. He has allowed me to publish his E-mail to me which I think you’ll find very interesting and helpful.  Thank you David.

Dear Paul,

I heard you have been thinking about Schemia.

In our school we call them “stories” and yes people have lots of stories/schemia tucked away in their subconscious minds.  And these stories/schemia can be in conflict with each other.  Like:  Intuitively I fear blacks, but consciously I know that that is wrong.

A juror can have a story/schemia that is going to kill us in trial.  Just as they can have stories/schemia that can help us.  It is possible to “refocus” the juror off of the story that is hurting us and onto a story that is going to help us.  All of this has been worked out and a terminology has been developed and it is being taught on an individual basis.  I’ll give you an example:

We sued the much loved small town doctor for med mal.  The story that is going to kill us is the doc is much loved – he’s delivered half the babies in town and has saved a lot of peoples’ lives.  Here’s the refocusing VD sequence:

Attorney:  Old Doc Johnson, we all love him.  He’s brought all my kids into the world, hell, he’s probably delivered all the kids in this town.  He’s saved my life, and I know he has saved the lives of several of you.  I personally love the guy.  So how do you feel about him?

Juror:  I love the guy.

Attorney:  Me too.  Juror Jones, how do you feel about him.

Juror Jones:  He saved my cousin’s life last year.

Attorney:  That he did – thank God.

Attorney:  Now let me ask you this:  Because we all love him so much, and we do love him, does that make it all right for him to occasionally be sloppy and careless and kill one of us now and then?

Juror Jones:  Well no.

Attorney:  Why not?  He is our only doctors isn’t he?  And we love him don’t we?

Juror Jones:  Yea, he’s our only doc and we love him, but that does make it right for him to be sloppy and careless with our lives.

Attorney:  So what you are telling me is that just because we love someone that doesn’t make it alright to sloppy and careless with our lives – is that right?

Juror Jones:  Yea.

Attorney:  Juror Barnes – how do you feel about that?

Juror Barnes:  I agree.

Attorney:  Let me ask you this:  We all love our children.  (Jurors nod heads)  And we all want them to grow up to be good people.  (Jurors nod heads)  But sometimes they screw up real bad – and thought it is very hard to to do, because we love them so much, we have to hold them responsible.  And we hold them responsible with the hope that it will make them better people.

Jurors:  They nod heads.

Attorney:  So let me ask you this:  Can you make room for the possibility that holding Doc Johnson responsible responsible when he gets sloppy and careless might help him become a better doctor?

Juror Jones:  Sure.

Attorney:  And that would be a good thing for both him and us wouldn’t it?

Jurors:  They nod heads.

End of refocusing sequence.

Now the different parts break down like this:

This is the joining the tribe part – if we aren’t part of their tribe they won’t listen to us.

Attorney:  Old Doc Johnson, we all love him.  He’s brought all my kids into the world, hell, he’s probably delivered all the kids in this town.  He’s saved my life, and I know he has saved the lives of several of you.  I personally love the guy.  So how do you feel about him?

This is the feeling part – we all have a subconscious story that says that people who ask us how we feel are people who care about us.  People who care about us tend to have great credibility with us.

Attorney: So how do you feel about him?

Juror:  I love the guy.

Attorney:  Me too.  Juror Jones, how do you feel about him.

This is called an Extreme.  We use Extremes to induce the Juror to change his focus off the story that is hurting us and on to a story that will help us.

Attorney:  Now let me ask you this:  Because we all love him so much, and we do love him, does that make it all right for him to occasionally be sloppy and careless and kill one of us now and then?

This part is called Resistance – we resist the juror’s shift to another story which makes them argue harder for it.

Juror: Well no.

Attorney:  Why not?  He is our only doctors isn’t he?  And we love him don’t we?

This the Juror arguing his point to you and the other jurors.  Since the idea is coming from a juror has more weight than if you just pitched the idea.

Juror Jones:  Yea, he’s our only doc and we love him, but that does make it right for him to be sloppy and careless with our lives.

This is called Reflective Listening – it confirms to the juror that you heard them and it repeats the reframed story back to the jurors – so they hear it again.

Attorney:  So what you are telling me is that just because we love someone that doesn’t make it alright to sloppy and careless with our lives – is that right?

This is working the new story into the group.

Attorney:  Juror Barnes – how do you feel about that?

Juror Barnes:  I agree.

This is using a series of Yes Statements to set up the attorney pitching a Reframe – which you should recognize from your NLP training.

Attorney:  Let me ask you this:  We all love our children.  (Jurors nod heads)  And we all want them to grow up to be good people.  (Jurors nod heads)  But sometimes they screw up real bad – and thought it is very hard to to do, because we love them so much, we have to hold them responsible.  And we hold them responsible with the hope that it will make them better people.

This is the attorney pitching a reframe – which he can now do because he is part of their tribe and is in a conversation with them.  Notice the language used to make the pitch – you should recognize it.

Attorney:  So let me ask you this:  Can you make room for the possibility that holding Doc Johnson responsible when he gets sloppy and careless might help him become a better doctor?

Juror Jones:  Sure.

Attorney:  And that would be a good thing for both him and us wouldn’t it?

Jurors:  They nod heads.

End of Lesson

Paul, to see this in action seems very conversational and intuitive – and it is – because the attorney has studied the process extensively and has made it part of their intuitive process.  I have students who have spent years studying with me – as there are many aspects to it.  And they have achieved tremendous success with it.  But its not for everybody, as it takes a lot of time and energy to learn it – it takes a real commitment and a very open mind.

Cheers,

 

David

 

 

 

One Response to DAVID CLARK THOUGHTS ABOUT JURY PERSUATION

  1. This approach is so counter to everything I learned as a young trial lawyer but would be so much more effective by giving permission to a jury to hold a doctor accountable and at the same time maintaining their view of his character. In my opinion, demonizing doctors or any medical professional almost always backfires and the jury is likely to reject that conclusion. In the process of rejecting that the doctor is to be demonized, the jury also rejects the credibility of the guide who is suggesting he should be. Thus, the jury rejects plaintiff’s case. This approach suggested above allows for the jury to accept what they already believe – that the doctor is not evil – but he is human and capable of mistake.

    Conventional wisdom tells us that jurors can forgive a mistake but cannot forgive a decision to deviate from established protocol. However, the motivation for the deviation is less than evil. In other words, the objective is to “melt the snowman” and not try to “destroy the doctor.” The latter is a losing proposition. The former allows for the possibility of the jury accepting plaintiff’s case.

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