Jury Selection: What’s Broken With Traditional Methods? with Sharif Gray [Ep 149]
Are you willing to be bold and confront jury selection challenges head-on?
Sharif Gray is here to share his perspective on jury selection, turning the tables on some of the assumptions and stereotypes that we often associate with the process and suggesting that instead, we take potential concerns and weaknesses and turn them to our advantage.
In so doing, you will demonstrate credibility, authenticity, trust and respect, for the potential jurors, the judge and even the defence.
“We’re there for fairness. So I’m looking for jurors who are going to do right by my client, but I’m also looking for jurors who are going to do right by the defense. Because it’s not justice if you’re going to close your eyes and just vote for my side every day of the week.” – Sharif Gray.
Sharif is a trial lawyer based in Richmond, Virginia, and the host of the Courtroom Stories and Tactics podcast, where he and his guests do deep dives on topics like voir dire, jury selection, the role of the legal system, and one of my favorites: focus groups! I was honored to be a guest on Sharif’s show earlier this year.
In this episode, you will learn about:
- Challenges in Traditional Jury Selection
- Building Credibility with the Jury
- Starting Jury Selection Right
- Effective Communication Techniques
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Supporting Resources:
Guest Sharif Gray of Broughton Injury Law.
Find Broughton Injury Law here: graybroughton.com
Reach Sharif personally at RVA Trial Lawyers: rvatriallawyers.com
Listen to Courtroom Stories and Tactics, by RVA Trial Lawyers: rvatriallawyers.com/podcast/
Find my episode on Sharif’s podcast: Mastering Witness Preparation Method and Focus Groups | with Elizabeth Larrick (Trial Consultant)
More info on the Voir Dire to Verdict training event, October 24, 2025
Email Sharif: triallawyers@rvatriallawyers.com
You can also watch this episode on YouTube here: Jury Selection: What’s Broken With Traditional Methods? with Sharif Gray [Ep 149]
Do you have an upcoming trial and want help writing your opening statement? Book a free call with Elizabeth to see how she can help.
Don’t want to miss an episode? Join the Trial Lawyer Prep Newsletter for resources, tips and episodes by going here: www.larricklawfirm.com/connect
Episode Transcript:
Speaker 2 (00:00.642)
Hello, Elizabeth here. I want to give a quick introduction about our special guest here today. We have Sharif Gray from the Broughton Injury Firm who is joining us to talk a little about jury selection. Sharif has a really interesting background. He has tried cases as a U.S. Army JAG officer and has a educational background as the valedictorian at the Virginia Military Institute.
and got his law degree at the University of Virginia. He really enjoys trying cases and as you’ll hear very shortly, he will tell us what he is excited about working on right now.
Speaker 2 (00:44.418)
Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants, ask them about connecting with clients and juries more effectively, then take strategies, tactics, and insights to increase your success? Each week, Elizabeth Lerick takes an in-depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process.
Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we have a guest treat today. And we’re going to talk about one of the most exciting parts of trial.
selection. But first, let me welcome my wonderful guest. Hello, Sharif Gray, and welcome to the podcast.
Thanks for having me. I’m excited to be here.
Good, I’m so glad. You I was honored to be a guest on your podcast and now you’re here on mine. So I’m very
Speaker 1 (01:49.762)
Well, I have the real honor. I mean, I got your autograph, right? And I’d been trying to get that for years. So I’m a big fan of Elizabeth Larrick for a number of reasons that I’m sure are gonna come out during this podcast.
You know, flattery will get you everywhere. That’s right. Just saying, just saying. No, because you have decided to pick a beef with deer and we want to get your opinions, your take on this. know lawyers are all over the board about jury selection. So, you know, I’ve heard it said, and I’m pretty sure it was you, the best and the first opportunity to persuade the jury is in a jury selection. True.
I agree. And what’s interesting is the word persuade, it’s not like an active persuasion and jury selection, but by doing what I think we’re going to talk about, and by no means are these like my original ideas, either things I’ve learned from everyone else, right? And like kind of morphed into my own stuff. But by following the approach that I think that we’re going to talk about today, I think you do start with the pers- you do end up persuading on a few different levels.
Well, I am super excited to jump into it, but let’s give people just a little preview about who you are. So I know they’ve heard a little about your background, but what is it that you’re doing right now that you absolutely love?
Well, recently, we’re getting into a lot more of crime victim cases. So the sex assault cases and things like that. I’m really enjoying those cases largely because the thing I think motivates me most about this work, this practice area, is the betrayal of trust aspect of our cases. And so when you have a child who’s been abused or neglected or sexually assaulted in a place where they should be protected,
Speaker 1 (03:32.992)
I find great purpose in that type of work. So that’s something that I’ve been getting into more recently and I’m grateful that the phone is ringing and we’re getting cases like that. And then also our firm has really just taken off in the last year, just moved offices, got some more people who have joined us. A lot of great things are happening now. So very, very excited across the board.
Good, good, good. I’m glad to hear that. Well, you’re in Virginia, they’re gonna know that, but you also have a podcast, so folks wanna follow you and learn more about what you’re doing. Courtroom Stories and Tactics is your podcast. You’ve had it for a little while.
Yeah, two and a half years and the crazy thing Elizabeth of that like it’s just me and my friend now who I mean he’s a judge now, which is incredible I mean, he’s an a hell of a person an amazing lawyer 37 years old just took the bench like six months ago He and I started it when we both prosecutors just because we like the trial stuff and we’ve learned a lot ourselves from other podcasts and So we thought well, why don’t we do our own and that’s an excuse for us to invite all these incredible people to teach us stuff for free, right?
We did a lot in person, which is always a lot of fun. And then about a year ago, we came together and we said, you know what, like, let’s just get serious about this. And so we did and it’s really grown. So we’re really, really enjoying it. We’ve got people coming on all the time. We’ve had you, which was awesome. And I mean, we’re even taking it that next step farther, which is the conference we’re having here in October. So it’s been a fun, fun project and I’m learning stuff every day.
from the guests that we have and the feedback that we get.
Speaker 2 (05:09.75)
And we’ll have a link to that in the show notes for you if people are interested in listen to your podcast But let’s jump in like let’s get to the nuts and bolts here What do you think is wrong? I’m gonna say we think is wrong with the traditional method of what ear
premised on a belief that stereotypes dictate how a person will ultimately decide issues in a case. And an example that I like to use is this one where to look at my resume, they would see Virginia Military Institute, is, I mean, on the spectrum is more of a conservative school. United States Army officer kind of fits that category, Prosecutor. They would look at me.
I would expect if I were being pulled on a criminal trial as a potential juror, they would look at me and be like, law and order? Yeah, absolutely. But I am the first person who I think would vote not guilty if the prosecution doesn’t meet its burden. And so I think the fundamental mistake that we make as lawyers in voir dire is we put people into different categories and just assume that because they are in an engineer.
Because they are of this race or grew up in this place or are of this age and and whatever right? They’re either good for us or they’re not good for us and that is a complete mistake and actually I’ve got a story that I think really I think accentuates at that point. Can I share it? So I remember I forgot how many years ago this was wasn’t that long ago But because I did a lot of criminal work before I got into personal injury and actually I credit a lot of that
Of course, please.
Speaker 1 (06:52.846)
time on my feet experience to helping me be the lawyer I am today. And I remember this wasn’t, I don’t know if it my, it wasn’t my first jury trial on the PI side, but it was one of the earlier ones. And I remember just like, like, yikes, what do I do? I mean, this is very different from criminal work. And I ended up finding stuff by Nick Rowley and the whole brutal honesty thing. one of the things that I really took away from hearing some stuff I found of him online,
Well, it’s like, people are complicated. Let’s not just judge a book by its cover. And so I tried it. Because the traditional voir dire that we see or jury selection that we see in probably most courts is, hey, raise your hand if you’ve been in a car accident before. You raise your hand, well, what happened? Da-da-da, can you be fair and partial? Just because they’ve been in a car accident or have not been in a car accident doesn’t mean that they’re better or worse for your case. Same thing on the criminal side.
Who’s relative is a police officer? No, no, no, no. Like again, you have to go deeper than that. And so I remember having a jury here in Chesterfield, Virginia, which is a suburb of the city of Richmond and intentionally kind of did the Nick Rowley or Jerry Spence kind of try and build a tribe approach to voir dire. And there was a lady whose title was like something insurance.
And so at one point during the questioning, I remember looking at this lady and I said, you know what, ma’am, like, I see what your job is. And if I’m being truly honest with you, I’m being brutally honest, which I know I’ve asked of you all. I’m concerned with you being on this journey. I mean, you are literally the person who deals with people like me and my colleagues sitting at the table on a day to day basis. And we talked for a little bit and then she said, you know what? No, I can call this like it is.
we can be fair. So the trial ended in a mistrial for other reasons. The judge was mad at me, I think, because of my opening statement. then I think when my, I did the whole like safety rule and all that stuff. I remember he kicked the jury out and was like, what are you doing? You’re asking the jury to like punish and all that. And I’m like, I never said punish. But the fact that you think I did means that I did, I thought I did an excellent job, right? And because it an admitted liability, like anyways, car crash case. But anyways, our
Speaker 1 (09:18.478)
client took the stand, our last witness, and the client during the beginning portions when talking about, why are you here, like all that stuff, she’s like, well, I’m really upset that the defense admitted liability last week, like the week before trial. And the judge was like, that’s ridiculous, you can’t say that, and then called him his trial. I think he was wrong, respectfully, your honor, if you’re listening. But actually, I mean, there was no curative instruction or anything like that.
But that’s not the point of the story. The point of the story is after the trial, we sent out feedback letters to all the different jurors. And the only person who responded was that lady, that insurance adjuster, or she owned an insurance agency. I forgot the specifics. And we had a conversation, and I asked her, was like, well, what did you think, all that? And it was very clear from our conversation that she was the unofficial for person. Because the trial progressed fairly.
I mean, we had gotten pretty deep into the case and she was convinced that the defense’s argument that the hip tear or labrum tear wasn’t related, convinced that was garbage. I mean, she was convinced that we had a good case. And then I asked her, I said, well, what were you thinking about for a verdict amount? And she said, well, I mean, you said not to exceed $750,000. So I was thinking, well, why not the whole thing, $750,000?
Now, who knows what would have happened in the deliberations room, right? Like, that’s not to say that there’s a guarantee that we would have walked out with that amount, right? But to think that if I had done the traditional way of jury selection, she would have been the first person that I would have cut, right? And I think it’s fair to say most plaintiff attorneys would have looked at the questionnaires and the name, job title, location, and strike number one, her. Yet she ended up being arguably our best juror, despite her background.
That convinced me that this thing about building a tribe works, right? And being open to actually listening to the jurors and giving them that time and space to share their opinions with you and to genuinely appreciate them doing so. I think that’s where credibility is earned. That’s where you learn more about the individuals who may make up your jury.
Speaker 1 (11:38.008)
And I think that’s where their persuasion starts. Now there’s a fine line, right, because we can’t persuade in jury selection. And I would argue that you never even want to attempt to persuade in jury selection because it looks like manipulation and it’s just not effective. The persuasion, I think, comes at a macro level when you’re talking about, well, the tactics and the techniques you use in voir dire in building credibility and addressing issues head on in framing potential issues before the case ruling. By doing that, you are persuading.
Yeah, absolutely. I I think so much of the traditional method, like you’re saying, is very much about demographics. How can I look at this panel and go ahead and pre-select who would be bad for me and work on getting them out the door? Right?
Yeah, and mean, Rowley makes a great point. He’s like, well, let’s say you take that approach. You come in and you say, that guy’s bad for me, that lady’s not good for me, all that. I mean, what’s your body language gonna be like towards that person, right? And they may not get off the jury. Like you may be stuck with them, right? So you might as well be open to learning more about them and give them the space to talk to you because you may not have enough strikes, right? Like that person could be with you. So, and who knows that person ended up being someone who’s very favorable.
to your case.
Sure, and I think, I mean, a lot of times we as lawyers and where a lot of jury selection and demographic selection, if you will, and pre-selection comes from the fact that we want to be able to go in and have a little bit of a security net, right? It is a scary thing. You’re going to talk to a bunch of people and if you don’t practice well, right, you do end up being very robotic, right? You do end up not necessarily giving bad body signals, but maybe just none at all, or your mind is elsewhere.
Speaker 2 (13:26.422)
All those things lead to not listening, right? Some of the best jury selection I’ve ever seen is where you very intentionally listen and then you very intentionally can follow up, right? And then naturally move to other things. Now, some people like to have roadmaps and that’s great. Hey, we’re talking about this, you know what? I’ve got to turn and we’re gonna talk about this now. All those things are helpful as well when you’re moving through quite a bit of information in jury selection and questions, but.
You know, I think people going in and saying like you, that’s an engineer, like that’s not going to be any good. Like it’s really about, and what I hear you saying is talking to people to understand their life experiences instead of just saying, that’s a box they’re checking. Let’s talk to them for a little bit, but just to be able to get them off for cost.
I agree with you. To that point though, I actually do have a roadmap in Voir Deer. So I have a plan. It’s not necessarily completely wedded to every step of it, but I actually, and I got this from Satch Oliver, who’s incredible. I will have a PowerPoint in Voir Deer and it’s a very simple PowerPoint and it will, I don’t know, say money for pain and suffering, right? That’s the entire slide. And what that does, it allows one, me to stay on track with knowing the questions I need to get through.
and then it allows everyone else to stay on track with the PowerPoint presentation. And so there is some structure, but you do, I believe, have to be open.
Oh yeah, no, 100%. I don’t think any lawyer walks in without structure. mean, those who do risk missing something. So 100%, I think everybody has roadmaps. I think some people would do it much more naturally than others, you know, because they’ve had more experience or some people just have kind of that they’ve talked enough people, they have a good gift of gab, right? And they know a good flow. But yeah, I using a PowerPoint is a great way to keep yourself on track, but also keep
Speaker 2 (15:27.32)
people engaged. A lot of times it’s always helpful to just when you’re going to communicate with a large group of people, maybe the person in the back can’t hear you, right? But they’re not going to speak up and say, I can’t hear you, Mr. Lawyer, right? They’re just going to sit back and be quiet. Look, that’s where I think a PowerPoint is really helpful. Like you’re saying, just to have a few words up there.
Yeah, or a picture too. Like I use with like when we’re talking about like preponderance versus beyond a reasonable doubt, right? Like I’ll use the stepladder to get to beyond a reasonable doubt and then talk about the difference of that and then use that as like a framework. And another thing to consider and I hope and maybe I’m jumping off the roadmap here, but one of the things that I’ve really appreciated about what you do is when you accept that voir dire is like a part of the conversation, you can come back to it. I’ve had closing arguments.
or when we start talking about what is the full and fair value of the non-economic damages here, the value of what was taken from our client’s health and quality of life. And I can go back to that lady on the front row said, I remember when you asked that question in Voir Deer of Me saying like, you know what, like, is there a guide? Like, I don’t know how to do this, right? And so now, I mean, what are you doing there? You’re tying everything together. You’re showing that juror that you respect her, you appreciate her, you believe her concerns are important, and then you’re addressing them.
And so, voir dire is something that I think is often under looked, at least where I practice, but it’s incredibly important. And it’s, I think the way to do it correctly is to get away from what is traditionally done. And there is a lot of momentum that I think pushes us to do the traditional thing. Judges expect it. The other side expects it. There’s worry or concern about if you deviate, are you trying to sneak something in?
Are you trying to start persuading, right, from the get-go? And so you end up having a short leash. There’s a dynamic of the trial just started. The judge is the authority figure in the courtroom. The jury rightfully looks at the judge and says, gosh, this person knows us. The judge is super nice. Hey, guys, we’re only going to be here for two days. We’ll make sure you get your Jimmy Johns for lunch. Da da da da da, right? Like, so as a lawyer, to do anything that could potentially put the judge
Speaker 1 (17:44.622)
against us right off the bat is also very concerning. so that’s, it’s not an easy endeavor. Judges, of course, have incredible discretion when it comes to voir dire. And so that’s something to definitely to know beforehand, know your judge, know what they’re gonna do. And then also we have a bench brief that we file on almost every trial and we try, I mean, I don’t know if it’s read, hope it is, but it’s important to get ahead of this, to know what the law is and to remind.
the court and the other side before the jury selection gets started about what you’re gonna do. You don’t have anything to hide, right? And anyways, I can go on.
No, no, it is very important to, if you’re gonna try something new and different is, you know, is to practice it, number one, even if you’re just gonna practice to a mirror or just practice, because there needs to be a lot of flexibility for you when it comes to doing something different in jury selection. Because like you said, you’re gonna get a judge who is very quick to shut you down or opposing counsel. And so it’s just being really flexible, knowing what your law is and being able to pick a different word. I’m just checking attitudes. I’m just checking.
expectations. I just want to make sure we don’t have any hidden opinions. Like, you know, to be able to feel like, okay, and again, when I would do jury selection, I had all those extra words on my paper just in case something happened so that I wouldn’t feel stuck because that’s the thing I think a lot of times lawyers can feel very stuck when it comes to jury selection because almost all other parts of the trial, they flow. Meaning I’m going to ask a question of that witness, they’re going to give me something back, right?
Drew selection, you could be crickets. And then it’s like a whole other set of like, you know, fear creeps in and like, my gosh, what are they going to say? But I think that’s where practice comes in significantly for that, for comfort of doing something new, knowing you’re going to get some response out of somebody out there and it may be off the wall, but you’ll know how to recover and keep going forward. But I think like you said, some of the smartest lawyers that I have ever heard have people
Speaker 2 (19:42.582)
watch, listen, take notes, and then integrate it into every part of the trial, what they’re saying, so they feel a part of what’s going on. you know, having gone, you were just at Mark Lanier’s Trial Academy, he talked about where there was a very large trial, they had very short jury selection, so they didn’t get to do a lot, but what they did was they went and looked into their panel and then integrated things about, like, it was, simple things, right?
somebody loved dogs or whatever. And so like there was a client who loved, you know, really tried to be very curious about what was going on, but then also integrated into pieces of the trial, especially the closing. But again, bring them along, bring them part of the story. They’re not just sitting like a bump on a log, you know, judging everything. Like they want to be included and it really lights people up when they feel important and included.
Absolutely. And I mean, they have a job and to empower them to do their job, right? mean, if you can get to the end of a case and look at the jury and say, I recognize like my job here is done. This case now belongs to you and we trust that you’ll do the right thing. And if you’ve done everything in the case to allow yourself to get to that point, you’re giving your client the best chance.
Absolutely. Well, let me ask you, why do you think some lawyers don’t like jury selection?
It’s for the reasons you mentioned. mean, it’s not scripted. You don’t know what’s going to come out, right? You’re in the middle of a room. There is a judge who’s watching his clock, wanting the case to move along and get started, right? Even though the case has started, right? With jury selection. Jurors don’t want to, mean, especially at the beginning, I mean, nobody wants to talk. You don’t know what answers you’re going to get, right? You don’t. It’s just, there’s a lot of uncertainty. There’s a lot of vulnerability, I think, that’s required to do it correctly.
Speaker 1 (21:32.642)
But I mean, that’s where practice comes in. My dog is the one I practice on a lot. I go, like literally, like I go, I mean, I have certain questions that like, want to make sure I get right. And so night before, a few nights before trial, like, I mean, we’ll certainly practice it with our team and all that stuff and review stuff. But when it comes to just the delivery of it, I mean, my dog Maximus, he gets to hear a lot of what year. So, cause it’s important. And I also think it’s very important to get the beginning right. Cause your job at the beginning,
is to set the tone and to get the conversation started. I do think Nick Rowley does a very good job of it and I do try and model a little bit of what he does and it’s worked for me. So I have no reason to stop doing that. And then to be intentional with kind of what you’re trying to get in voir dire and what you’re trying. To me, I’ve got three goals. It’s the one, it’s to build slash earn credibility. And then two, it’s to
identify concerns and to expose the issues in your case. And then the last thing has just to do with framing, framing language that can help kind of get you started off in the right direction. And I’m happy to talk.
well, I just was making a mental note. So yeah, let’s dive into that. First little road sign here, where you start is always one of the most important things that we can do as lawyers. Primacy, what we say first gets tagged as important. So like you said, how you start jury selection, that conversation is so important. And I just, crushes my soul when lawyers start talking about themselves first.
because I’m like, you’re missing this beautiful, awesome opportunity to do something like build credibility or start the conversation or, know, there’s so many different ways that are out there that you could try to start, but it just crushes me. People talk about themselves first in starting the conversation.
Speaker 1 (23:29.814)
Right? No, absolutely. So the way that, and by no means am I saying that the way that I do it is the right way, right? It’s just the way that I’ve done it recently that I think is effective and it works for me.
Well, let’s be fair. When we say the right way, it’s what’s right for you because I’m not Nick Rowley, you’re not Nick Rowley. Everybody should find what is really comfortable for you and that’s what makes it right. I know many times people get really caught up in, oh, it’s gotta be the sorry way or this is the edge way or this is the rally. Like, listen.
We’re all gonna mush it all together in our brains and do what’s most comfortable, and that makes it the right way for you. So, okay, keep going, tell us about it.
Absolutely and to that point like it’s just a toolkit right like we all are building our own toolkits and our job isn’t to go mimic others right it’s to take the things that work for us and to implement them on for the benefit of our clients so I’m a big believer that I don’t take notes during voir dire I have some of my co-counsel does but what I do is as soon as a jury walks in I am desperately trying to make sure I have
the names match up with the right seat. So that’s all I’m doing. I’m just, I’ve got that seating chart in front of me and I’m juror number one, Mr. Smith. I’m making sure I write Mr. Smith juror number one. So once I have that done, then I get up. And the only thing I have is oftentimes my clicker, because I’ve got the PowerPoint provided it’s been allowed. And then with the, you have your clicker in hand, you’ve got your list, you get up in front of the jury. And what I like to do, and again, I’m modeling,
Speaker 1 (25:10.862)
Nick Rowley here when I do this is I like to take the first question and basically say something along the lines of like, you’re going to listen to us, all the lawyers and witnesses talk the entire trial. We’re not, this is the only opportunity we get to hear from you. Would you be okay talking to me during for the next 45 minutes an hour? And you get the head nods, right? You don’t really get many verbal responses. And then what I go to next, and again, this is all crediting Nick Rowley for it. I say, okay, all right.
I guarantee that there’s gonna be a time during this next 45 minutes or an hour where there’s silence. Would it be okay when that happens if I say, would someone please answer my question? And then what happens there is you get a little chuckle and then you actually, put the hand out and you say, and the person goes, who you pointed to will say yes, right? And now they’re starting to get a little bit more warm. you then go into, listen, we’re not trying to say that.
anyone here is a bad juror or just trying to say that some jurors are better or some people would be a better fit for this case while some people would be a better fit for other cases. Would it be okay if again for the next 45 minutes an hour and I asked a bunch of questions of you guys to help us understand whether this case is actually a good fit for you. And there’s you can use examples there you can go into the nitnick cherry pie stuff you can do all that but that’s ultimately the fun and that’s a good one. Now I’ve used it before and I got made fun of.
by the jurors because they’re like, what do mean you don’t like cherry pie? Because I don’t. And so anyways, you do that. And then there may be a couple other things I’ll do at times. But then what I like to do is I like to go into concerning issues. And there’s always concerning issues in every personal injury case. I mean, money for damages, right? That’s always something that you want to
Pre-existing conditions. Gaps and treatment.
Speaker 1 (26:57.666)
there’s exactly pre-existing. I mean, there’s all types of stuff. But before we dive into that a little bit more, I think there are a few things that are important takeaways to consider through all of this. And this goes, think, what I’m about to mention goes towards the building credibility. I if one says, how do you build credibility? Like, there’s no checklist, right? But there are things that one can do to help, right? Because at the end of the day, the jury rightfully presumes that
the lawyers and the judges know more about the case than they ever will. And they’re right, right? So in some respects, they’re looking for somebody to trust, a guide. And so that’s where credibility becomes incredibly important because when there is that close call, if you’ve been upfront and honest with them and respected them and their opinions, and maybe they’ll do the same in return. And so that means, so how do you do that? One, means listen. So one of the rules that I do think
can measure whether a blodger has been successful or not successful is who’s doing most of the talking. If it’s a lawyer doing most of the talking, my guess is that probably wasn’t the most successful jury selection. You want them to do most of the talking. And how do we do that? Well, and encourage them to talk. Well, we do a warmup to some extent, and then we ask open-ended questions. It’s not, do you have a problem with? No one raises their hand or talks to that.
Do you have an issue with? That’s also a major red flag. How do you feel about the possibility of this? How do you feel about that? Okay, great. Well, can you tell me more about that? What else, right? And that’s where it’s kind of almost like direct examination. And to some extent, it’s actually not that difficult because all you have to really say if you’re ever stumped is just, tell me more. And then it puts the ball back in their court and they end up talking, right? And they go a little bit deeper and then you can go,
Well, okay, sir, I really appreciate that you shared that with me. I recognize being the first person to raise your hand here certainly isn’t the easiest, but I promise you, you’re probably not alone. Would it be okay with you if I asked some of the other people here in the box whether they feel the same way? And of course they say yes. And you go, all right, well, who else feels this way, right? Well, tell me more, right? And so those are kind of the things that you wanna do in order to build credibility. The other thing that I think
Speaker 1 (29:19.978)
is important is we want to be, it’s our courtroom, right? It’s we own it or we should. And what I mean by that is like, we want to appear that we’re there for justice, we’re there for fairness. So I’m looking for jurors who are gonna do right by my client, but I’m also looking for jurors who are gonna do right by the defense. Because it’s not justice if you’re gonna close your eyes and just vote for my side every day of the week. And if there is a, let’s say,
a prospective juror who is just so your side, like there’s no way to protect them. There’s no way to do the prehabilitation and say, well, you can still go, like they’re gone, right? Either cause or you just know they’re gone. Then why not? And this is what I’ve done before. And again, I’m giving Rowley the credit for this. Why not you kick them off, right? Like, well, sir, I appreciate what you just shared with me.
And while I would love to have you as a juror, if this is something that, because it’s certainly favorable to my side, if this is something that you firmly believe and hold onto, well, I’m concerned that the defendant here may not get a fair shot. What are your thoughts about that? Let’s just assume they say, yeah, I think you’re probably right. I’m like, well, is there anything that I can do to really change your mind? Or is there anything the defense can say or the judge that would change your mind? No, not really. Well, do you think, would you be offended if I asked the judge here in a few minutes and said, sir, Mr. Smith,
I mean, as much as of course he’d be favorable to us, like I just don’t think he’s the right juror for this case. Would you be offended if I did that? No, no, no. You think I would be doing the right thing by doing that? Yeah, absolutely. And what have I just done there? I’ve just gotten rid of a juror who is going anyways, right? You’re not gonna do this for close calls. These are people who, they’re gone, right? There’s just no way they’re staying on the panel. And I’ve shown respect to this juror. I’ve shown the jury panel that
I’m trying to call it straight, right? Like I’m not trying to like sneak something by you or be inauthentic. So stuff like that, by actually listening, by following up, by caring about what they say and about being as transparent as you can is how you build.
Speaker 2 (31:30.478)
Yeah, and I would add things that are even simpler than that, which is like, look somebody in the eye when they’re talking to you. know, that, mean, listening is important, but many a times we’re thinking about what’s the next question or who do I need to go to next? And so taking the time to, if able, to be able to go stand in front of that person and make eye contact, if not just making eye contact with that person while they’re talking, right? And listening, right?
is so huge because even though you’re not talking to everybody else, what they’re seeing is you be very respectful to people who are talking. It sounds so simple, but I’ve seen so many lawyers get it wrong because they’re thinking they’re doing something else and it’s just, you know, having eye contact. So very important. Not cutting somebody off. Another super simple, but builds huge credibility that I see, you know, lawyers do all the time is just cut somebody off when they weren’t finished.
for whatever reason, most of the time, because we’re just not paying full attention to what we’re doing. But yeah, those are some excellent tips on building credibility. So tell me a little bit about how you handle then concerns or issues that you maybe have. We talked a little bit about a couple of those examples. How do you like to handle those?
Yeah, so I think you need to do a share at some point. I by no means am necessarily good at this, but I did do the Jerry Spence three week course. And one of the things that really kind of hammer is this idea of like, they’re only going to go as deep as you will. Right. So something I’ve done, I don’t think this is necessarily the greatest, but it is true. I don’t think I would have been a great personal injury juror before I got into this line of work. I mean, my law school didn’t talk about it.
I didn’t know what this work was, So sometimes I’ll come up and say, you know what, like, I get it, the billboards, all that stuff, right? The stigma, it’s real. I myself, if I’m being brutally honest, probably wouldn’t have been the best juror. I would have prejudged the case. the settlement must have been good enough. And now they’re just greedy plaintiff’s attorneys. So you just want, you want to find a way to kind of share a little bit about you before you get into one of these issues. Cause that gives permission for those who do have some concerns to actually be vocal. But.
Speaker 1 (33:42.518)
The biggest piece of advice I’ve gotten when it comes to the issues you want to bring up in voir dire is just really kind of a thought process by yourself and with your colleagues and also issues that you’ve gotten through focus groups on what are the concerns in the case. So for example, if your client’s a felon, well, that’s going to come up. So you’re going to want to get ahead of that in voir dire. You’re going to want to be open. There’s a reason why my client’s not sitting in the courtroom right now. I want you guys to be brutally honest with me during this process.
And I’m gonna tell you that he’s a felon. He had a felony conviction 10 plus years ago, and you’re gonna hear argument about that he’s just not credible. How do you feel about being a juror on a case where you’ve got to take that into consideration? And you’re gonna get all types of answers, right? mean, oftentimes I get, well, I mean, what does a felony from 10 years ago have to do about this incident, this personal injury case, right? I haven’t ever gotten anyone who’s said,
Well, I just I’m not going to give him his day in court because he’s a felon. So that’s an issue. mean, we’re in Virginia. We’ve got pure contributory negligence. So in any case, slip and fall, trip and fall or premises case where contributory negligence could be an issue. mean, that’s an issue I’m raising in four a What else? Money is always a massive question about something you have to do. Right. It’s just non-economic damages in particular. Right. But
It’s any time you think there is a concern in your case, then that’s for jury selection. You have to get it out, because they’re going to hear about it. But it’s better they hear about it from you, and that if it’s also a concern for them, then that’s their opportunity to not stay on this case.
I think, you mentioned, know, focus groups will really help you be able to fine tune the language to use because we may struggle with trying to say it in a way or have to over explain injury selection, like mitigation of damages. Like that’s a big garbled goop that takes too long. We don’t want to waste time in jury section. You want to get right to it. So using their phrases and their words makes it so much easier on you.
Speaker 1 (35:46.766)
Absolutely. It makes it easier on the lawyer and also it goes back to that first point about credibility. If we can be as Joe Fried has phrased it when he was on our podcast, shockingly vulnerable, Be off code. I believe that’s the Edge Institute language, right? To be something different from what the jury expects and to just be that normal person, you’re then again building trust, building credibility. And as to your point, you’re just making it.
more efficient and move better.
Absolutely. So, all right, so we’ve gone step one, step two, walk us through the third approach for your one year.
Sure. So there are some questions that I know the answer I’m going to get, but I do them just for framing purposes. And I got this from Keith Mitnick. So the example I’m about to share. let’s say in a case, and most of our cases have what I’m about to share, is there’s a very well credentialed expert witness that the defense has hired. Their opinions are in stark contrast to what our expert says.
And we are, of course, naturally concerned about how their testimony will be received. Well, what Mitnick will say, and what I’ve really come to believe, and I act on this belief, is that why are we going to wait until cross-examination to start dealing with that expert witness, right? Let’s get ahead of it. And we can get ahead of it in opening, and we can also get ahead of it in voir dire. And so let’s talk about the expert witness example.
Speaker 1 (37:20.002)
The question would go along the lines of, guys, at end of this case, the judge is going to tell you that you have to use your common sense to devaluate credibility of the witnesses. That includes just regular people who show up to testify. It also includes all those fancy doctors with all the initials and years of experience and getting paid tons of money. It also includes them. How do you guys feel about evaluating credibility? Is that something that you think you can do? Sure, yeah, da, da, da, da. Right, there’s not much conversation there. And then you go, well,
you’re learn that there are some experts who they get paid for living and they’re calling it like it is. They’re calling balls and strikes, you can trust them. And there are some who just might be pushing a little bit too far for the side that hired them. How do you feel about evaluating credibility in that situation? Even if that expert has a degree from Harvard and Yale and all that stuff. And then you start having that conversation, it’s like, well, now I get it, right? You know what you’re gonna get. Everyone’s gonna say, yes, I can evaluate credibility.
But what have you done? What is the framing there? There is going to be an expert witness on the defense who’s got all these credentials that should not be believed because he’s pushing too hard for his side. And so then what do you do in opening? You explore that even further. So by the time that defense expert takes the stand, the jury’s heard about them at least twice. Watson-Voideer wants an opening. And so they’ve already got a lens as to which to listen to that.
testimony and then you get to go up on cross-examination and aren’t trying to impeach or attack that credibility for the very beginning then but you’ve already done it. You’ve started that process before the case really ever got going. So that’s framing. You can do it for damages too like what I know depends on the jurisdiction and this question that I’m about to share is both a framing slash a concern. So I like to ask do the anchor thing where it’s like
How many of you when you hear that we’re going to ask for a verdict not to exceed $7 million are thinking, you know what, I don’t care what the evidence is, I’m just never coming back with a verdict that high. It’s a legitimate question because you’re not, I mean, you are asking basically to see if anyone has an artificial cap, right? And that would constitute them not being a proper fit for the jury. So it’s a concern type question. But what have you also done? You’ve just told them what your number is.
Speaker 1 (39:47.35)
seven million dollars. And so I’ve had trials where I’ll do that question of Wadir and I will never mention the number again. Maybe in rebuttal, but there’s no need to. They know what the number is. It’s seven million. It’s not to exceed seven million. What’s the defense going to do? And I got this from Satch Oliver. The defense attorney is not going to get up and look at these greedy guys, asking for seven million dollars. What do you mean? They said not to exceed seven million. We trust you to come up with the right result based on all the evidence that you’ve heard. So those are kind of framing questions.
And it depends on the case and that’s the classic lawyer answer. Another thing that I really like to do is, and I got this part from Jessica Breylo, so clearly I’m a nerd slash workaholic.
Listen, what I hear from you is that you love to learn, you’re very curious, and it doesn’t stop for you. You’re going to keep learning and keep taking it in and keep making it your own.
That’s the goal. The joke is that, well it’s not a joke, it’s reality. When my wife is watching Love Island or something else that’s really dumb on TV, I’m over there watching Marc Lanier on YouTube or something like that. And that’s not a joke, I it’s real. So I’m very grateful that I found work that I really do enjoy. But Jessica will say, and it didn’t occur to me until she said this, always ask the open-ended question at the end. What more do we need to know, guys? I know I’m not the brightest person here.
Is there something I should have asked that I didn’t? Just to see if there’s just something else, because you just never know. And so yeah, that’s a question I kind of like to end with. And one thing that I learned the hard way, so I’m about to share a technique that I use, is I’ve had defense attorneys who will get up after I’ve done my voir dire, and they’ll just, I mean, we’ve gotten the goods, right? Like we’ve just spent 45 minutes an hour with them, talking to them, and the defense, of course, is learning stuff.
Speaker 1 (41:29.932)
And so the defense doesn’t really have that much of a need to do their own void here. And so some of them will get up and still say, well, can’t everyone just be fair? And then you’ll get a chuckle and then they sit down and it’s like, they’re almost like mocking you for having taken all that time when in fact you just did the work for the defense. So what’s something that I like to do right before I sit down, I say, guys, I appreciate all the time you spent with me during this process. I know I asked a bunch of questions. I don’t expect the defense is going to have too much to ask from you because I already asked a ton.
And then I sit down and that I don’t know how it works, but like, I hope it leaves takes the sting if out of that approach when the defense attorney gets up and says, can you all just be fair?
really think that that is a very is a good tactic to use as a defense lawyer.
I don’t because the feedback that I actually got from a juror was that was unprofessional, it wasn’t prepared, all that. But that said, I haven’t spoken with every juror who’s done, who’s experienced that.
Well, I mean, just take, mean, a defense lawyer, she’ll have to do their job and ask questions. And if they’re believing what you’ve said and what the judge has told them, which is now is the time that the lawyers are going to ask you some questions and blah, blah, blah. And this is, you know, and then the other side gets up and goes, can you be fair? And then just sits down, like, people would be like, what, what? Like, there’d be a little more confusion there would be. That’s the smartest guy in the room, Rex.
Speaker 2 (42:51.266)
That’s one of the things where, you know, we talk about jury selection and a lot of times people will worry and be concerned. Like, well, what is their jury selection going to be? like, you don’t even need to worry about what theirs is because yours is going to be so great. You’re going to learn everything you need to know to make your decisions. Don’t even begin to worry about what they’re doing. It’s on them to worry about that. Let it go. You don’t have space in your brain to worry about what they’re going to do. If they want to waste their time by saying, like, could you be fair? Like,
Okay, but I think a smart defense lawyer is not going to do something like that because boy howdy, they’re kind of sitting there, even if it’s defense insurance gesture, they’re going to be like, what did you just do? We didn’t bet you to ask a question.
I’ve had it a couple of times, so it’s a…
I’m sure it is because again, you know, then that gets into the industry of that side, which is like the amount of money with which they get paid to do trials is minuscule. Some of them are just on autopilot. You know, like, the hell is that?
Especially for like your car wreck cases, it’s a lot of volume. And it’s a good model. mean, it’s just not good for justice, really.
Speaker 2 (44:01.196)
Okay, so we’ve got credibility issues, framing. Is there anything else, you know, we started this whole conversation about persuasion, right? Jury selection being the first and best place to begin your persuasion. Is there any other thoughts that you have about how to do that in a way that is not, again, super overt, just flat out advocacy?
Not particularly. The goal isn’t to persuade. The goal is, I think if you’re trying to achieve the three goals we talked about, I think by doing so, you are starting to persuade. So I don’t think there’s really much more. mean, at least from my perspective, making sure that you’re getting the issues that you’re concerned about in front of the jury is critical, right? Also making sure that you’ve primed jury selection so that you’ll be given the freedom and space
to actually do a meaningful one is important. And that could be bench brief beforehand, which we file. We have one and we file. And the law in Virginia is fairly permissive when it comes to voir dire jury selection, but the practice in courtrooms is not. And so we try and get ahead of that issue before we run into it, right? So everyone at least understands what we’re doing or at a minimum thinks, wow, these guys filed a five page bench brief, citing all this law, they must at least know the law on jury selection, right?
I think also understanding the cause language, right? Like the actual in Virginia, it’s indifference is or indifferent to the cause is in our code section. It’s not bias. It’s not impartial. And so by unknowing your actual language and when you are moving for a cause, right? Again, as I mentioned, like I’ll do it in front of the jury and I will use the word, well, it sounds like you’re have trouble being indifferent in this case based on A, B and C.
Yeah, yeah, yeah. So if you can get them to use those words, then that I think sets you a little bit farther apart. Something that I haven’t figured out and I don’t think I ever will is I’m still not good at picking people. Like I often like I’ll tell my co-counsel, I’m like, you make those decisions. And I say, I’m gonna stay out of it. Do I stay out of it? Absolutely not. Like I know it’s gonna be a wall.
Speaker 2 (46:16.17)
I that’s relinquishing a lot of control that most lawyers would be like, well, I have a little bit of opinion.
And so I don’t know, mean, and maybe more bureau research needs to be done that I’m not doing and probably something I could probably do a better job at. Bureau research and maybe that’s malpractice, you know, that all my team are doing it. Now, Boisier, I also think is very important. You helped us on a case that, unfortunately, is now on a field, so it didn’t go our favor. And we were once known as friendly like Boisier. And when we walked into the jury room after the verdict, a jury who we did not expect to be the leader was
clearly and had a background that you were not aware of and were not represented in in work. I mean there’s no guarantee have we had the opportunity to do one year that we would have necessarily found all of that out. The jury selection is out of the works and I would argue that it is demurred.
Yeah, and again, if you, I think the hard part of saying it’s the best and most important is that if you don’t get it, which some places still don’t get it, lot of it, course, so let’s see, and it’s still good. If you have it, it is the best place to begin, right? Don’t ignore the opportunities that you have there as thinking through primacy and case framing. And even the way that you approach and talk things is persuasion, right? Like there’s a lot of persuasion in how you just talk to them.
And again, people would say, well, you know, it doesn’t need to be overt, like we talked about, like just regular language. But even how you’re framing that question can be very persuasive in the words you’re using. So I really appreciate that you came on the podcast. And I know that people who are curious to learn more can come to your CLE, Vodartavirdic. So tell us a little bit about your upcoming CLE.
Speaker 1 (48:04.588)
Yeah, so October 24th here in Richmond, it’s called Voie de Verdict and we are going Voie de Verdict. So we’ve got some really incredible lawyers and consultants coming out to help. Sorry, Elizabeth, that it didn’t work out this year, but next year for sure we’re going to get you. Next Tell your husband he can’t have another back surgery.
I will try to persuade him with all of my tactics not to do that.
But we’ve got, so let’s see, it’s October 24th, which is a Friday. We’re at the Virginia War Memorial, which is a beautiful, beautiful spot in downtown Richmond over looks the river. And it’s also, it’s a really cool spot, purposeful spot because it’s a memorial to those who’ve served. And our firm, something that’s really cool about us is all the lawyers at our firm have been in the military and specifically JAG.
Next our senior paralegal was a former police officer. it really certainly fits our ethos. I would also argue that it fits the ethos of the trial where but that night before we’re having a welcome party at in downtown Richmond, all are welcome. And then that day, we’re starting off with session one is authenticity in the courtroom. Andrew Cable Shaw from active communication is coming in from Georgia to share like what is authenticity? How does one
develop and work on authenticity. Why does this matter? We then move on to case framing and we’ve got Eric Gerard actually out of Houston, the Soros law firm, who’s a former federal prosecutor. I actually, went to the same law school. That’s kind of how we connected and he’s done exceptionally well as a trial lawyer. He’s going to come in and talk about what is framing? Why is it important and what should our cases be about? And I won’t…
Speaker 1 (49:49.454)
I guess give it away, but our cases aren’t about our clients injuries. They’re just not they’re about conduct if we’re trying to get the best results its Vertex are to deter and damages are just the means to do so and I think I think air is gonna do a really good job on that We then move into voir dire and we’ve got one of the best in the country doing that Joe Fried Who’s gonna do a session on voir dire? We then move into focus groups. We’ve got Artemis Malk
who’s partners with David Ball in North Carolina coming up and showing us real footage of focus groups so we can have a better understanding of what jurors are really thinking, right? And so we’re excited about that. Then we’ve got a guy named Rob Choi who I’m good friends with who’s helped me with a lot of visual graphic type design for trial presentation stuff. And this is a guy who works for MetaVisuals here in Richmond and he’s traveling all over the country every other week or so to basically be that trial presentation guy.
in trial, so he’s seen a ton. He sees what works and what doesn’t. And we’re going to talk about, and I’m going to bring the tools that I use, and I’m going to do it with him, and we’re going to talk about all the different methods of using visual, and how you can create them, and what’s effective, what’s not. We’re then moving on to opening statement. We’ve got Kenny Berger out of South Carolina. His firm is also hooked in with Nick Rowley, his trial lawyers for justice. He’s an excellent lawyer, and he’s going to talk about opening statements.
Then move into direct cross examinations with my co-host, which is Judge Nawa Buzaki, incredible prosecutor, had been doing it. I mean, I would have thought would have been a career prosecutor. still could happen, but he just got on the bench about six months ago. Then we move into closing statement, and Joe Fried’s gonna finish us out with closing statements. got an after party and stuff. Anyways, I’m super excited. We’ve sold, I think, about 60 or so tickets.
We’re capping it at 100 people. The goal here isn’t to make money, all money that’s, if there is a profit, which at this point it’s not looking promising, but if there is a profit, it’s going to go to the Wounded Warriors project. I’ve already made a donation, and I’m sure we’ll probably make more. But the goal is to add value. We firmly believe here that like a rising tide lifts all boats. As cliche as it is, it’s true. And so if we can bring people together and friends of mine who’ve
Speaker 1 (52:12.012)
and really influence how I do the work that I do to get better results for our clients. And if we can make everyone better and start building that community, I think we’re all in a better place. the goal is to add value. And so the price is actually fairly low. I know you’ve criticized me for how low the price is. My colleagues at the firm have criticized me. even got like, mean, secondhand, I know one of the guys we use to help market the conference is actually good family friends with the Rowleys and.
He was like, Nick Rowley said that your prices were too low. it’s very reasonable for what you’re getting. my hope is a ton of value that one can implement. it’s not, and we were advertising this as not a like come here war stories and all that. No, no, no. Like the goal here is practical tools and methodologies that you can use the next day. So I’ve probably taken too much time talking about our.
No, no, I wanted you to talk about, we’ll have a link in the show notes for anyone who is interested in doing that, along with link to your podcast and just your general content information if people want to have you on as a guest or if they have a case in Virginia or I know that you actually do trials all over, you’re here in San Antonio doing one. So I will have your contact in the show notes for anybody who is interested.
Well, this has been a lot of fun. Thank you, Elizabeth. Again, I’m super gratefully connected. For those of you who don’t know, Elizabeth is a master when it comes to witness prep. And I remember learning about the method that she uses a few years ago, and I can’t tell you how the results of it. It’s just truly incredible. Counterintuitive than what you’d normally expect, but truly incredible. And I fortunate enough to work with you, Elizabeth, for this last case.
even more fortunate enough to get an autograph and I’m sure I have it somewhere in my office.
Speaker 2 (54:00.81)
You forgot to say I’m also an excellent seat saver for ceilings if you need.
Even when there is another gray law firm.
That’s right. Absolutely. Well, I, is truly a blessing to have you on and talking about jury selection. So thank you so much, Sri, for, for joining this podcast. And like I said, we’ll have all the contact and the show notes for you. And until next time, thank you so much.
Awesome. Thank you guys.
