OUR APPROACH TO JURY SELECTION. As we must prepare ourselves to present our case, so, too, we must prepare the jury, the boss, or the board to receive it. I think of it as if I were developing a friendship—perhaps plunging headlong into a love affair.
We can beseech the other, beg, plead, threaten all manner of evil against the other, go on a hunger strike, and threaten to give up chocolate, but unless the person to whom we make our presentation is prepared to receive it, indeed, wants to receive it, we are simply blowing our puny breath into a gale.
Every person has an opinion on everything, from how the government should be run to how long the kids’ hair should be. We’re experts, even though our expertise may be the product of what mamma told us forty years ago. To our last breath, we’re going to go down with those ideas, those faith-based beliefs we’ve never thought through, that we’ve always lugged around as part of our psychic baggage. But a person without an opinion on most things is an idiot. Our minds were given in order that we might come to false conclusions on nearly every subject. How dare anyone try to convince us otherwise?
In the trial of a case before a jury, lawyers in the more enlightened jurisdictions are given the right to voir dire the jury. In the lazy vernacular of the law, the term voir dire has become both verb and noun. Its Anglo-Norman roots simply mean, “to speak the truth.” Prospective jurors are placed under oath and questioned, voir dired, as it were, by the lawyers at the beginning of the trial. The professed purpose of the exercise is to determine whether the juror can be fair and impartial. In truth, the lawyers on both sides are looking for jurors who will decide the case for them. Both sides weed out those jurors they think will likely be against them, and the resulting twelve are supposedly the least prejudiced and biased that the venire (the panel of prospective jurors) has to offer.
In some jurisdictions (notably the federal courts) judges do all the questioning of the prospective jurors, although these judges know little or nothing about the case and are mostly uninformed concerning the important issues that may effect a fair outcome in the trial. But some of the more enlightened federal judges are now permitting lawyers to voir dire, and most state courts allow it. The largest impediment to the exercise of this skill is that too many lawyers simply don’t know how to do it. Yet, that problem is not alleviated by letting judges engage in it. I’ve sometimes observed that if I did a voir dire as poorly as the judges I’ve seen I should be sued for malpractice.
Including, not excluding the jurors. Lawyers hire experts to help them determine which jurors to exclude from the jury. I’m more interested in which jurors to include. How does it feel to be questioned, when we know that the questioner, no matter how charming, is intending to expose whatever fact, whatever small secret he can pry from us in order to strike us from the jury? And who wants to be cross-examined? Nothing in this approach invites the prospective juror into the process, and that’s where we want him: with us. Moreover, since prospective jurors understand the game, they can play it as well—and with a total lack of candidness. Suddenly, the lawyer has unwittingly seated a bunch of jurors who will vote against him at the first opportunity.
I begin with the proposition that everyone has an opinion, but everyone is basically fair. The questioning takes on the flavor of friends talking, accepting the other’s opinions and feelings with respect. It is not a manipulation or a strategy. It’s simply an attempt to be who we are with each other. I’ve finished many a voir dire examination not wanting to strike a single person from the original jury panel.
The voir dire has a profoundly deeper purpose than to exclude those who are immutably biased against us. In subtle ways we want to open up the juror to new ideas, to open him to our position in the trial, and to be open to his. Cynics of the jury system like to call this brainwashing. That, of course, is not possible. No one can easily remove the stain of long-held opinions or prejudices from another, and it’s impossible to do so in the short time that jurors are questioned in the voir dire.
Being in the moment. A successful voir dire begins with our being in the moment. This doesn’t mean to fly by the seat of our britches. I’m speaking of being spontaneous. It calls on our ability to listen to the other, to focus on what is happening—the feelings that abound—both ours and theirs. Instead of thinking of the next question we’re about to ask, we are lost to the self, to the moment, to the other, to the magic happening around us.
When we stand before a jury for the first time in a case, when we begin our presentation to the boss or the board, we stop and take in the moment. They may be watching us, waiting for our first word, but we’re not with them—not now. We’re with ourselves. We’re tuning in to our feelings: “What am I feeling at this instance?” Likely it’s anxiety, a diluted form of fear. I’d rather not be here. This is where the voir dire begins—at this moment. With us. With who we are. With what we feel. Then, as if we were speaking confidentially to our best friend as we sit together on a log in a small meadow in the forest, we may begin, “I’m feeling anxious. A little scared. I guess I’d rather not be here.”
Already we’re spontaneous. We’ve prepared ourselves to feel, to share, and to follow our feelings like a friendly hound, as we experience our feelings in ourselves and perceive them in the jurors, the committee, the boss. Nothing will turn us aside. No answer we receive will send us into spasms of speechlessness. We invite the truth, that is, whatever the other has to say and whatever we ourselves feel—which is the truth of that moment.
The six simple steps to a successful voir dire. An effective voir dire has proven to be a difficult, even harrowing undertaking for even the most skillful of trial lawyers. I’ve distilled my method to six simple steps that anyone, lawyer or layperson, can follow in or out of court. Still, it exacts from the us the highest level of truth and the greatest degree of fidelity. It’s an approach that takes courage, because it first begins with an examination of the self concerning our feelings on the troublesome issues we face.
Step 1. Identifying the issues we’re afraid of. In every presentation some issue lurks that we’re afraid of. In the criminal case we may be afraid of race issues, or the way a hard-looking defendant will be seen by the jurors, or the fact that most people believe in the old adage, “Where there’s smoke there’s fire,” meaning that, since the defendant has been charged he must be guilty of something.
In the civil case we may be afraid to ask for a large sum for a dead child, or that jurors see lawsuits as nothing but a shovel by which greedy lawyers scoop up large piles of money at the expense of the hapless taxpayer.
Before the boss or the board. In the same way, before we begin to make our presentation to the boss or the board, let’s first discover what we’re afraid of. Suppose, for example, we want a raise. We were given one six months ago (not a substantial one—a routine cost-of-living raise). We’re afraid the boss will resent our request for yet another one. Or maybe we want to change a long-standing company rule that inhibits the free exchange of ideas between the company’s employees and its management, and we’re afraid we will be seen as troublemakers. (People who seek change for the better are often suspect in the eyes of management.)
The first step toward a successful voir dire in or out of the courtroom is to identify the issues we’re most afraid of. Let’s listen to our bellies where our fear hides out. Let’s talk about our fears to our friends. Listen to their reactions against our case or proposal. What prejudices or opinions do these decision makers likely hold going into this case that spell doom for our cause?
Step 2: Experience feeling the issue in ourselves. When we identify what we’re afraid of we must ask ourselves, why? Isn’t it because down there, someplace, our own prejudice is speaking to us? It’s the discovery of the issue in ourselves which permits us to understand and deal with that issue in prospective jurors.
Let’s suppose that in the trial of a criminal case our client is black. Already we know what the answer will be if we ask the simple question, “Do you hold any prejudice or bias against people of African-American descent?” “Of course not,” the juror will quickly reply. We are all politically correct, right down to the white marrow in our bones. We’ve gotten the answer we expected, and although we may be relieved to hear it, we may put twelve rabid racists on the jury and never know it. So how do we get the juror to tell us the truth, if, indeed, the juror recognizes it himself?
Let me tell you a story: When I was about eight or nine years old, my pal Buddy and I wanted to discover a secret we’d heard about—that there was this mysterious difference between boys and girls. A couple of neighborhood girls, also our age, were with us in Buddy’s garage. Would they show us the difference? we asked in our boyish, embarrassed ways. “Are you crazy or something?” was their reply. The fruitless dialogue continued until I got this marvelous idea: “We’ll show you ours if you’ll show us yours.” From that simple proposal new discoveries were made.
From the I’ll-show-you-mine-if-you’ll-show-me-yours paradigm I illustrate that before you can expect people to reveal their feelings, their biases and prejudices, we must first be willing to reveal our own—openly and honestly. How do we know when a juror is telling the truth? It’s when we are telling him the truth. How do we know when a juror is no longer lying to us? It’s when we stop lying to him.
Let’s continue with the example of racial prejudice: We’re afraid the juror may be prejudiced. But are we prejudiced? Not on your life. But our lack of prejudice is something we’ve probably taken as a truth without much thought about it. Racial prejudice is a bad thing. We are not bad persons. Therefore, we’re not prejudiced—or some such mental process.
Black or white, all of us harbor some racial prejudice, and I distrust those who claim they are Clorox-clean. We’re uncomfortable with the differences, and nothing is more obviously different than the color of our skin. We have lived in different cultures, suffered different pain, and adopted a different set of truths on a variety of important human issues. Out of our differences comes a lack of an in-depth knowledge of the other. As white persons, we’ve never walked in the shoes of a black person, and distrust often arises from a lack of complete understanding. Distrust leads to prejudice, and no matter how we wish it otherwise, we’ll likely find ourselves among the masses of good Americans who believe we harbor no prejudice at all, but who actually suffer prejudice at some level.
Hypocrisy runs deep in the culture. It is the principal sin of the pure of heart. It ought not find a comfortable home in us. So, before we begin to question the juror we need to discover and acknowledge, on a feeling level, our own prejudice. And it doesn’t feel good.
Having discovered what we’re afraid of, we hone in on how we feel about the issue. How does our racial prejudice feel to us? Do we own it? How do we feel about an employee who demands yet another raise, or argues to change long established company rules? Do we admit that such a person brings up our “enmity in the shadows,” shall we call it? When we are aware of such feelings in ourselves we will have a more ready access to the feelings of the decision maker that we did not fully appreciate.
Step 3: Sharing our feeling with the decision maker. We’re now ready to begin our voir dire to the jury, or our presentation to the committee or the boss, by simply sharing our feelings.
Let us continue with the race issue. We’re afraid that because our client is black that he’ll not be believed. But what about our own racism? Here’s how I might begin such an inquiry:
“Folks, I represent Johnny Jones here. I have to confess something to you. I’m afraid I’m prejudiced against black people.” This is a good time for silence, to let this awful truth sink in. Even the prosecutor is likely to remain silent—no time to object, not when opposing counsel is confessing his prejudice.
I continue. “I don’t like my prejudice. I don’t even know where it came from. It makes me feel ashamed, and I have tried hard to overcome it. Prejudice has a way of creeping back uninvited. I try to be aware of this all the time. But sometimes I’m afraid I might not.” I’ve now had the courage to show the jury mine. It’s time for the jurors to show me theirs.
Step 4: Invite the jurors to share their feelings. Still dealing with the racism issue, I look over the panel and ask, “Am I all alone in this?” No one raises a hand. “Am I really the only one who feels this way?” I ask again. I am feeling alone, and my feelings are open on my face. Then I see a juror give me a slight nod and a timid raising of her hand. I turn to the juror. “Mrs. Smith,” I say with true relief, “I’m so glad there’s someone else who’s had to deal with this issue. That took a lot of courage on your part. Could you tell me a little bit about how you feel on this subject?”
Mrs. Smith says with refreshing candor, “Well, I suppose that everyone has a little prejudice.”
“Thank you Mrs. Smith. Could you tell me something about how you feel toward black people in general?”
“I guess I’m just a little afraid of them, I don’t know.”
Her answer leads me to ask the next question of the panel: “Do any of the rest of you have any feelings similar to those of Mrs. Smith?”
The ice has been broken. The jurors have discovered that it’s all right to be open and candid. And the discussion begins.
We will encounter those who claim they have no prejudice at all. What do we do with them? Although some may, in fact, be prejudice-free, my experience is that, usually, those who claim to be free of prejudice are not in tune with their feelings, or are so intimidated by political correctness that they’re afraid to admit the slightest prejudice. They may be people who are patently self-righteous, or they may simply be lying. In the end I want people who can feel, and especially those who are honest enough to “show me theirs.” I can trust them, and because I’ve been open with them they’ve begun to trust me. We’re in this together.
I may ask a juror to tell me how he feels about another juror’s response. For example, “Mr. Peabody has just said that he thinks black people are more prone to commit crimes than white people. Do you think that’s true?” When the juror says yes, spontaneity will rule. “That scares me,” I reply. “Maybe at this moment you see my client, Johnny, as guilty.”
Of course, Peabody wants to be seen as fair. “I’ll wait until I hear the evidence,” he’ll say.
But we may ask, “How can we give Johnny a fair trial if we suspect he may be guilty because he’s black?” We’ll talk about the presumption of innocence, and when it comes time to choose the jurors to sit we’ll likely take those who admit some prejudice. The most dangerous people on the face of the earth are those self-righteous prigs who have embraced their prejudices so long that their prejudices have settled comfortably into their souls.
Let’s look at several other typical issues we are afraid of in jury trials.
The greedy lawyer: We’re always afraid of the appellation that society has placed on trial lawyers—those greedy charlatans who are destroying the system. We will begin by admitting the truth: “Yes, I guess I am one of those greedy lawyers you hear about. It’s hard for me to ask you for money for a dead child. Hurts me. But (looking up at the judge) his honor will tell you that money is the only justice I can ask for. No one goes to jail here. We don’t put Kiddie-Corp (the maker of a dangerous toy) in jail for its negligence. There’s no other justice available but money. I wish it were otherwise. But I want all the justice I can rightly get for Baby Jane. I am greedy. How do you feel about that, Mr. Mayweather?” And an honest dialogue begins after we have identified the issue we’re afraid of (step 1, above), felt it in ourselves (step 2), shared our feelings about it with the jurors (step 3), and invited them to share their feeling with us (step 4).
The juror may say that ten million dollars seems like a lot of money. We agree. It is a lot. The dialogue continues. We might emphasize our distaste for substituting money for a little child, and we might ask, “How would you suggest we replace Baby Jane in this system that only permits us to do so with money?”
“It hurts Baby Jane’s parents to ask for money. But money is the only justice the law will give them. Would you be willing to consider what amount might reasonably stand for justice here?”
We might continue with questions that further point up the problem: “Should her parents just forget this?”
“Should they go home without asking for justice?”
“If Kiddie-Corp put out a dangerous toy, should they go scot-free?”
A juror may ask how I came to ten million dollars. My honest answer will be, “I don’t know. There is no measurement given to us by the law. We can only use our best judgment, our most considered, thoughtful decision as to how much money rightfully represents the value of Baby Jane’s life. I may not have asked for enough. You’re free to decide on a greater sum if you wish.”
Another juror may say, “I don’t think the parents should get rich because of her death.” If that question isn’t asked, it is one we are afraid of and that we will bring up ourselves (step 1). We might say: “I am repulsed by the idea that parents can become rich over the death of a child. Seems wrong to me. Seems even barbaric” (steps 2 and 3). We ask if anyone else on the jury has a feeling about this (step 4). Others may express a like concern.
Perhaps we will say, “I think if you ask any parent, they would not trade a little finger on their child for a million dollars, much less ten of them for ten million dollars. Little Jane’s parents feel the same. We are made rich with our children—the most precious of all riches. That this most precious of all wealth has been taken from Baby Jane’s parents requires us to try somehow to bring justice. Money is all there is. Just money.” And an open, free discussion continues. We follow it wherever it goes relying, in the moment, on our spontaneity.
The jurors’ distrust for lawyers. I might say to the jurors, “I hear a lot of lawyer jokes these days. Any of you know one?” (If so, let the juror tell it to us.) “I have to tell you that these jokes hurt me. It’s true I asked for it, but the jokes say that people hate or distrust lawyers. And I can understand why that is. I have met lawyers I distrust.
“But when we talk of the distrust of lawyers across the board, does that include Mr. Ketchum (the prosecutor or the defense attorney in the civil case)? I am not going to ask you to trust me. I think we have to earn our trust, just like anyone else. After all, there are some very honest used-car salespersons, too, aren’t there?” A little laughter.
“Because I am a lawyer I become one of those men who people dump into the bucket with all the other lawyers in the world. To get out of that slop pail we have to earn our way out. But let me say something I would like you to think about: Without me, Shirley White (my client) will have to face this judge and this jury alone with no one to speak for her. Without me she will have to cross-examine the experts who have been hired against her, and she has no training to do so. And without me you will have to take their paid expert’s word for what they say, because there will be no one to show you the whole truth.
“Without me there will be no one to stop Mr. Ketchum from dumping improper evidence into the case and there will be no one to argue the law on her behalf to his honor. And without me she will have to argue her case by herself against the likes of Mr. Ketchum, who is a powerful lawyer with power people behind him. So, Mr. Black (a juror), is it all right with you if Shirley has chosen me to fight for her rights?”
The client looks guilty: Suppose our client has the unfortunate look of one who’s guilty. We’re afraid he will be prejudged as we prejudged him (step 1 and 2). We will say the truth: “I have to admit that when I first met Jimmy in jail I thought, ‘Oh, no, not another guilty one! I have to represent him? Anybody can tell just by looking at him that he’s guilty’ I said as much to Jimmy” (step 3). “He said, ‘Well, Mr. Spence, you don’t look so innocent yourself.’” (Maybe a little deserved laughter.)
“I’m wondering if you’d all take a good look at Jimmy and tell me what you think. Mr. Hayworth (a juror), so you think you can tell whether a person is guilty or innocent by looking at him?” (step 4). Our discussion continues. Other jurors may argue you can’t tell guilt or innocence by a person’s looks. Sometimes the innocent-looking person turns out to be guilty, and along the way we will come to the conclusion that we have to decide the case on the evidence, not on the looks of the accused.
Big verdicts mean insurance rates go up. Some courts won’t permit this issue to be aired to the jury. Yet the insurance industry has launched a national crusade against trial attorneys and their alleged big-money verdicts in which the insurance industry threatens every American with unaffordable insurance. How do we begin any civil case for an injured person on an even playing field? Assuming a fair and intelligent judge will let us talk about this, let’s start by simply telling the truth.
Following the steps I have outlined above, we might begin by saying, “When it comes time for me to pay the insurance on my car I wonder if I can afford it. I’ve heard all about big verdicts causing insurance rates to soar, and that also bothers me, because I’m going to ask for a lot of money in this case. What do you think about that, Miss Haberstab?”
Perhaps she says, “I think that big verdicts and you trial lawyers are the ruination of the country.”
“I can certainly understand how you might feel that way.” Then I might ask, “Does anyone here question whether big verdicts have anything to do with rising insurance rates?”
Blank looks from the jurors.
“Have any of you heard that the big losses insurance companies experience may actually come from the bad investments they’ve made in the stock market, and they want to blame someone other than themselves?”
Maybe a nod from Mr. Black.
Following up with the juror. “Suppose, Mr. Black, I knocked on your door just before this case took up and asked if I could come into your living room and discuss the amount of money I’d like to get in this case for the injuries done to my client. Wouldn’t you turn me in to the judge and call the sheriff for jury tampering?”
He agrees.
“Do you think that insurance companies come into your living room though their TV programs and newspaper ads in the hopes of affecting the outcome of cases and increasing their profits?”
He says that might be so.
“My client’s never been to your living room to talk to you about it, has he?” Again the discussion can continue and the final question may be, “How many of you would agree that we’re not here to protect insurance companies and their profit? We are not here to protect ourselves. We’re here to provide justice for the parties in this case.” Then we might add: “And how many of you believe that in the scheme of things a verdict here for $10 million would actually increase your car insurance one penny?” (I can hear the screaming objection of the insurance defense attorney all the way out here.)
Step 5. Accept (and honor) the gifts the jury gives us. Remember, whatever answer the juror gives is a gift to us. It took courage for the juror to open up and tell us the truth about how he or she feels. The juror trusted us enough to tell us. We must honor that. And we need to thank him as we would any who have bestowed a gift on us.
Once I asked a jury panel if anyone knew or heard anything about me that, in polite company, they might not wish to say? One juror raised his hand: “Yeah, Mr. Spence, my dad says you represented him once and sold him down the river.”
I was shocked to speechlessness for a moment. But my response had to be real. I said, “Well, Mr. Brown, I asked for your answer and I got it, and I thank you for being honest with me. But I have to tell you how embarrassed that makes me feel to have someone say that in front of all of these people.”
His reply was immediate: “Oh, don’t let it bother ya, Mr. Spence. He says stuff like that about everybody.”
When the hurtful answer smacks us in the face other jurors will help us. We may turn to them and ask, “Do you agree with Mr. Bellows?” (who’s just said that if the defendant confessed, he’s probably guilty). Some juror will rescue us by saying, “He may have been coerced.” How much better to face the problem openly—the gift—than to avoid the issue, leaving the jurors free to crucify us in the jury room when we’ll be helpless to deal with it at all.
Step 6. Continue sharing our feelings and invite the jury to share theirs. As we’ve already seen, the exchange between the lawyer and the jurors becomes an open discussion that includes not only the lawyer talking to the jury, but the jurors talking with each other, so that how the jurors feel about the issues can be revealed to both sides and to the jurors themselves.
The irascible judge. Yes, but what about those cranky kings up there on the bench? They are cranky for various reasons. Some feel underpaid, that all they have is power and they’re going to use it. Some feel bored. Some are old insurance company attorneys or former prosecutors and can never be free of their experience and training, never get into the hide of an injured person or understand that those accused of crimes are entitled to a fair trial.
Some judges are put off by lawyers who won’t tell the truth or those who are incompetent or who don’t fully represent their clients. Some will be poised like a hungry leopard ready to spring on an innocent chicken when they get the slightest inkling that there is “that touchy-feely stuff” going on in their courtrooms. Judges like this believe the law is something mechanical or scientific, that certain formulas must apply to justice—a concept they’ve never understood in the first place, since, as we have seen, justice is a feeling and these judges are afraid of their own feelings. Therefore they do not want anyone else to feel.
When we encounter this kind of judge we can do nothing but press on as best we can. To retreat is defeat. Judges who, at the objections of our opponents, interrupt our voir dire, sustain objections to our questions, and generally raise havoc with our attempts to deal with the issues are, all the while, being observed by the jurors. Jurors want to know what’s being hidden behind the objectives. They want to be fair. They often want to hear what we have to say. They may not feel kindly toward a judge and an opponent who attacks obviously fair, honest questions.
We must be ourselves, even to the point that our confusion, our fear, or intimidation becomes apparent. My experience is that if we are honest and straight, jurors will take care of us. At the bench or in chambers I have asked judges who limit voir dire or who are impatient with the process, what if the tables were turned? What if, say, the judge’s daughter were being tried for shoplifting? Surely he wouldn’t want his daughter placed into the hands of twelve strangers, persons he wasn’t permitted to know even superficially, who might be prejudiced against her but who would blandly assure the court that they could be fair.
On the other hand, some judges will be amazed at this open process that can reveal prejudices to the enlightenment of both sides of the case. Some will be appreciative of the learning experience the jury is going through. Some will be relieved to see an attorney up there telling the truth and soliciting the truth from the jurors. The six steps to a successful voir dire I have outlined above offer the best opportunity for litigants to obtain jurors who are candid and fair to everyone. What I call the magic mirror has been at work: We’re in touch with our feelings and our prejudices and we’ve been honest with the jurors. Their honesty has been reflected back. We’ve been open with them, and their openness has been reflected back. It’s that simple.
For the lay person—how to voir dire the boss or board members. So we want a promotion? Slipping into the hide of the boss—becoming the boss for a moment—we begin by realizing this is a touchy issue. It’s about money. Standing in as the boss, we know that this employee must be handled in just the right way. If we flat turn him down it can cause resentment. He’s a valuable employee and he may seek another job. As the boss, we know that a negative attitude on our part will cause the man to feel unappreciated. He’s worked hard. We have to be fair. Yet our own job is at issue. We have to hold down expenses and we may be looking for a promotion ourselves, earned as a result of our good and efficient management.
How does it feel to become the boss? There’s a tension there. But the mirror, as usual, is at work, because as an employee we feel the tension too. At this point we’ve (1) identified the issue we’re afraid of—that the boss will not only turn us down but he’ll resent our asking for a promotion, or that our position in the company will be weakened or perhaps our job eliminated altogether. We’ve (2) experienced the issue in ourselves when we reversed roles and became the boss. How do we (3) share this experience with the boss?
Our approach might be as follows: “Mr. Harmon, I’d like to talk to you about a promotion. I notice that Jim Jeffries has gone up the ladder and his position is open. When I thought about asking for the job it made me pretty uneasy. I’ve been afraid you might rightly resent my talking to you about this. You have a lot on your mind. On the other hand, I know you are a fair man and I wanted you to know I’m interested in advancing in this company.” We look at the boss and give him a minute to gather this all in.
Harmon may be as straight with us as we’ve been with him. “Actually, what you want is more money, isn’t that right, Dick? You want a raise.”
“That’s right, Mr. Harmon, but I’m willing to take on more responsibility and do you an outstanding job. I know we need to keep expenses in line and, more than that, I want to support you in your management here.” We may wait now and let him say something. The power of the pause.
He will likely say, “What you say is true, Dick.” And no matter what the boss adds, positive or negative, we’ll see it as a gift. He’s beginning to talk to us. We’ll listen. His candid response to our own openness gives us the opportunity to deal with the issues we must confront.
Suppose he finally says, “Well, Dick, if we give you the new job, how much of a raise are you looking for?”
The truth is we want as much as we can get. And to get a fair raise we know we’ll have to ask for more than we’ll get, even if we deserve every penny we ask for. Maybe we’ll say, “It makes me uncomfortable to talk about money. I deserve the raise. I need it. My family needs it. I have a boy just entering college. But on the other hand I know we have to stay locked into the budget. I’m looking for twenty thousand.”
The boss has been prepared for our presentation. He knows we are sensitive to his position, that we feel in conflict, and we’ve been honest with him. And we’ve judged him as a fair man—the kind of man his response must demonstrate. We’ve laid it all out in the open. We’ve shown him ours. Now it’s time for him to show us his.
We will never argue with any point Harmon makes. We take any negative as a gift, understanding it from his point of view. If I were speaking to a juror and asking for a multimillion-dollar verdict, I might say, “I know what I’m asking for seems too much—even outrageous. But it’s my duty to prove to you that we’re entitled to that amount. Will you give me a fair chance to do that?” The answer is almost always yes. So, with the boss: “I know, Mr. Harmon, that what I’m asking for seems unreasonable. But will you give me a few minutes to show you why I’m entitled to it?”
We will talk to the board members in much the same way that we voir dire the jury. We identify the issue we’re concerned about, the issue or issues that will most likely stand in our way of success. Again, we experience that issue in ourselves as if we we’re a member of the board. Then we share our feelings as a board member with the board. When we understand the decision makers, when we can feel what they must be feeling, it closes the gap between us and helps us connect. It leaves us feeling as if this board is ours, this boss is ours. Such is the environment of winning.
How we’ve won through the voir dire. We’ve learned that to win we must persuade the decision maker to be open to our case. But before we can be heard with ears that accept rather than reject, we must reverse roles with the decision maker. Once there we can test our own feelings as we, ourselves, take on their role and spontaneously, in the moment, share those feelings with them.
We see the power persons not as adversaries, not as those we are attempting to exclude, not as rascals who are hiding some insidious truth from us, not as the enemy, not as persons to be manipulated, not as persons to be brainwashed, not as persons whom we must fear, but persons we respect and whose opinions are gifts to us. Then, at last, we will have created a relationship with the decision makers that opens them to us. Therein lies the power of the voir dire, in the courtroom, the boardroom, and everywhere else.