Episode #91 – Bad Behavior and the Implications for Jury Selection

Dr. Steve Wood and Dr. Bill Kanasky, Jr. team up to talk about the increased incidents of aggressiveness and violence that we are witnessing on airplanes, at airports, sporting events, and more. Steve and Bill talk about what these fights and bad behavior mean for the jury pool since the people involved in these fights are jury eligible. They discuss the psychology behind this behavior and what they are seeing in mock trials in the behavior and decision making of mock jurors. They also talk about what attorneys need to be aware of during jury selection in terms of the mental health of jurors, as well as the emotional state of witnesses prior to their testimony at either deposition or trial. Steve and Bill share examples of what mistakes and assumptions defense attorneys are making about jurors and how those assumptions are hurting them in case outcomes. Lastly, they highlight the diversity of these ever-increasing examples of bad human behavior which cut across all races, genders, age groups, geographies, occupations, etc., creating even more of a need to do a proper, scientific assessment of witnesses and jurors in your litigation.

Full Episode Transcript

[00:01] Steve Welcome to Litigation Psychology Podcast, brought to you by Courtroom Sciences Inc. Dr. Steve Wood and with me today is my partner in crime, Dr. Bill Kanasky. Bill, how the heck are you? It looks like you’re, are you in Vegas here, traveling?

[00:19] Bill Here in Vegas, baby. Vegas. Um, if the lighting’s terrible, so I can’t have the Vegas background. I guess we should have did this podcast in the morning. Uh, coming at you live from the Wynn, the Wynn Hotel, uh, and resort. A very nice place. Um, we have got the—I am speaking tomorrow at the uh, DRI Senior Living and Long-Term Care uh, conference. We’re gonna be talking a little bit about um, witness performance and when your witnesses suck, how it’s gonna cost your client a lot of money. And by the way, when it comes to—see they used to be called nursing home cases, you’re not allowed to, you’re not allowed to say that anymore. Um, but the one thing I can guarantee you on a nursing home case, your witnesses are going to suck. They’re going to suck. These are some of the toughest witnesses I’ve ever worked with. And the reason why, and again, I’m not, I’m not here to make friends, I’m here to tell the truth. I mean, these providers, particularly the nursing staff, uh, these, these, these aren’t exactly the sharpest tools in the shed, right? And um, they’re often um, not able to get jobs at the larger medical centers, um, and so you kind of got a rough crowd there um, in those nursing home and assisted living cases. So I’ll be talking to that group tomorrow and uh, looking forward to it.

[01:52] Steve Awesome. Yeah, I know you’ve been out and about giving a lot of speeches every week, every week. And I think it was good you teed it off because I was gonna make a comment that, you know, no, nothing good ever happens when you and I are on the podcast together, because the chances are it means we’re about to rant about some sort of topic.

[02:11] Bill We’ve been ranting every week. I think for a good, like a good, I’d say a good month, we’ve been doing really well in the rants.

[02:16] Steve Yeah, and I brought you together because this is more of my rant, and not necessarily a rant, but more of kind of just really just a sadness on my part. I’m wearing the Michigan State green, I’m wearing it for a very important reason, because I’m honestly just sad by the fact that you and I text each other all the time and we’re constantly talking. I’m waiting for your text on Saturday afternoon or Sunday or Monday morning about all these fights that are breaking out in the stands. I mean, whether it’s professional baseball or professional football or college football, I mean, people are, are brawling all the time and it’s becoming a distraction, you know, from the sport.

[03:03] Bill It’s, it’s every day now. Let’s, let’s take a little history lesson, okay? So once certain areas of the country started to open up, where this phenomenon really started was on the airplanes, okay? And it was happening maybe once a month. And you saw all the videos from the airplanes. The poor, the poor lady from Southwest Airlines got two of her teeth knocked out. And uh, and all these things are videotaped, they go viral, they’re all in the news. Uh, pretty pathetic, uh, it’s a pretty pathetic uh, example of uh, of human nature. I do think with many of those cases you have a combination typically of mental health issues combined with uh, uh, some alcohol. You know, somebody uh, hitting the sauce pretty hard and that’s ended up um, you know, uh, with some pretty bad outcomes. But I think with everybody being cooped up, right, and then you’re out and about and then they stick you in this tin can for four hours where you’re breathing recycled farts, right? I mean, I would lose my mind too. But it started with the airplane and then it went to the airports, right? And these were on video. Your flight gets canceled, well you, you attack the person behind the counter at American Airlines uh, or I think the last one I saw was Spirit, but then again I think something bad happens around Spirit Airlines probably every day because they’re really a horrible company. Um, and so then we had the airlines and now, because last year things were very off with the stadiums, now everything’s really opened up, the stadiums are full capacity. How many, I think we have a streak going, I think there’s been a fight every week starting from pre-season NFL. And I sent you one today. It was, hold on, it was Padres and the Giants, a baseball fight. Which, by the way, very unusual. We’re seeing most of the fights happening uh, you know, with the football fans. Oh, wait till hockey season, can’t, can’t wait till that gets started. But with the football fans, it’s been very bad. But the thing that I think, the thing why we’re talking about this is: A, this is human behavior, right? Number one. B, all these people involved are jury eligible people, right? They can show up on your jury. And C, not only is it the worst it’s ever been, it’s not getting better, it’s actually getting worse. And the fact that they’re putting these videos on—and by the way Steve, they, they did something, boy this may be now, we’re going to dive into the psychology behind this because we got to talk about what does this mean for your jury pool, that’s where we’re going, but work with me—I think they probably did this, I’m gonna guess maybe 15 years ago or 20, I’m getting old. The guy—it’s always a guy by the way—the guy that runs on the field, right? What do they not do anymore, the TV broadcast? What do they not do?

[06:27] Steve No, they don’t show them. They don’t show them.

[06:28] Bill And Steve, a doctor psychologist, why do they not show them?

[06:33] Steve Because they don’t want to reinforce the behavior.

[06:35] Bill Thank you. So for 20 years, guy runs on the field, right? He’s wearing a thong, I don’t want to see that anyway, right? Or maybe he’s naked, he’s running up and down the field, right? People are chasing him, they don’t put him on TV, right? And the reason why? We don’t want to reinforce that behavior, okay? It’s very, it’s very B.F. Skinner 101, thank you very much, okay. However, now you have all these fights and these brawls and they’re all being—they’re not on TV, they’re on the internet. They’re on TikTok, they’re on Instagram, they’re on YouTube. So it’s being widely reinforced. Let’s kind of talk about um, why this is getting worse and maybe the statistical eyes. I don’t think that we’re going to have people throwing haymakers in deliberations, but people—people’s behavior is, I think, an all-time extreme. What do you, what do you think?

[07:38] Steve Yeah, I think a couple things to unpack here. So to circle back on your point about this whole reinforced behavior, right? We saw that “Suns in Four” guy who, who got in a fight, right? He got his own t-shirt, he got his own—people were coming up to him and taking pictures with them at, at the actual stadium. And I saw another one the other day where it was a Cleveland Browns and these guys were squaring up with each other and the guy who was shooting the video was almost, you know, “Hey, all right, I got it on video, I got it on video.” It’s almost like they weren’t going to start the fight until they knew the guy had the thing on the video. So to your point, that’s, that’s absolutely one of those things that’s, it’s being reinforced. And to go back what we’re talking about about how this influences jurors, you know, one of the things that to me that I kind of think when we’ve talked about, you know, COVID-19 and we, you and I and CSI in general have collected data on it, talked on it, podcasted on it, you know, there’s a concept that’s called Terror Management Theory, right? And I’m not going to do a service today about briefly touching on it—I would, you know, if anybody’s interested in the topic, go out and read on it—but at its general attendance, right, Terror Management Theory, the idea—and this goes really to Reptile Theory as well—is that we as humans, right, we, we try to strive to be safe and not, you know, not have any danger risk, danger and harm. And, you know, this whole COVID-19 has brought out in us this mortality salience, right? That at some point someone, some, we’re gonna die, right? There’s just no, there’s no way to avoid it, we’re going to die. What ends up happening is when people get a sense of their mortality, then what it does is it changes and shapes the way that they view things, right? So when people have this mortality salience, they’re more apt to hold on to their world views. They’re more apt to, you know, gravitate towards things that cause, that’s going to help them alleviate their anxiety by entrenching themselves in their world views that align with their beliefs that ultimately will allow them to say at the end of the day that they lived a meaningful life and that there was some sort of purpose to their life, okay? So how does that fit into the fighting, right? The fact that with Terror Management Theory, when people, like I said, are, are cued into their mortality salience as they are with COVID-19, it causes an increase in in-group, out-group distinction, right? Aggression towards individuals who are not quote-unquote “one of us.” Well, now you can figure out why it is that people, you know, the Dodgers and San Francisco always get in fights or the Padres and San Francisco always get in fights, right? You’re one of them, you’re not one of us, therefore it increases my aggression. So I think that’s one of the things that we’re seeing. Now, why we’re seeing fights between, you know, Cleveland Browns and Cleveland Browns? Maybe it’s because Cleveland Brown fans just like to fight each other.

[10:36] Bill Uh, maybe they’ve been angry, they’ve been angry for for a long, long time, right? In that, a long time. So I, I encourage the Browns fans to beat the [__] out of each other. I think that’s great until they start winning. Um, maybe that’s a good, I’m, I’m not sure. But it’s really, um, it’s really shocking and uh, it’s really disturbing. I know I’ve been to a couple uh, games recently where it’s like, you know, I got my head on a swivel. Uh, you got to watch out for everybody. It’s sad. At the same time, you know, in between all these fights, you and I are out there doing mock trial and, and focus group research, and we’re not seeing this type of behavior.

[11:20] Steve No, we’re not. But to your point though, so we’re not seeing fights, right? But what are we seeing? We’re seeing more of when I was talking about in-group, out-group and, you know, aligning yourself with more of your world views. What we’re seeing is jurors who are entrenching themselves more on their side. So for example, you know, you’re a pro-plaintiff juror by nature, well, post-COVID, now that you’ve, you’ve had this more mortality silence—salience—you’re going to be more, you’re going to be even more pro-plaintiff than you were before. And the same thing with the defense, right? If you’re pro-defense before, you’re even more pro-defense. And I think that’s what we’ve seen with our mock trials and, you know, focus groups in that, is that people who were once leaning towards plaintiff are now even more leaning towards the plaintiff. They’re even more vocal, they’re even more, you know, rah-rah towards the plaintiff or the defense of “there’s nothing here, this is a frivolous lawsuit.” I think before we would see a teetering on, yeah, there’d be some groups of pro-plaintiffs, some groups of pro-defense, and then we’d see this group, this large group of people who are the, the ones that were teeter-tottering. But I think you’re seeing a lot more now who are going one way or the other.

[12:35] Bill Yeah, I think, I think a lot of these, specifically the stadium issues, um, are alcohol driven combined with some other stuff. But I, I think it’s generally alcohol driven, not all of them, but a lot of them. Um, however, there’s some of these ones on the airplanes and in the airports have not been, or there’s really been a very clear mental—so here’s the good news for our audience: you’re not going to have 12 wasted angry people that have been doing shots of Jack all morning coming into the courtroom and deliberating it. That’s not going to happen. So we could check that box, we’re safe. However, I would argue—we’ve talked about this for a year and a half on this podcast—the mental health issues in this country are very, very real. Um, they are still climbing. Um, they’re not going down. And that will sneak in to the courtroom in the deliberation room. And I think it’s very important um, that attorneys learn to ask the right questions. And you can’t, by the way, you can’t again, yeah okay uh, ladies and gentlemen of the jury, raise your hand if you’re clinically depressed. I mean, you can’t do that, folks. You can’t. Um, you gotta learn how to ask the right questions. And also really, and we’ve talked about this a lot, you, you can’t tap into a lot of this mental health information in a way that’s not embarrassing, right? And you’re not gonna get people to talk about it. And so that’s where um, we’re imploring our clients, you know, file a motion for a supplemental juror questionnaire and tell the judge, “Your Honor, we’ve got to address these mental health issues.” Number one, I mean no one’s gonna disagree with that. Number two, we can’t address them in open court, right? Mrs. Jones, when was the last time you had an anxiety attack? You, you can’t ask that question, right? Mr. Smith, you know, when was the last time you had an anger issue and you know, you threw a chair through a window? Can you tell me when that was? To like, you can’t, you can’t do this stuff. However, there are ways to articulate—articulate those questions in a written form where you’re, you’re going to get a lot more honesty um, you know, going to other things we’ve talked about, whether it be um, you know, social justice issues, race issues, uh, sex issues. You’re not going to be able to ask those questions in open court, and that’s always been the case. But now we have the mental health problem. I think it’s really important that um, the attorneys, as we start—as trials start to uh, start to get going here—you better call us, because we know what we’re doing, um, to learn how to ask these questions, to learn how to tap into some of these issues. Because I got to tell you, you know, if, um, if you get—if you get some of these folks that slip through the cracks in jury selection um, and they are mentally unbalanced, I mean, I, I think that could be a definite cause uh, um, of a nuclear verdict when you get illogical people making very uh, uh, illogical decisions on, on damages and punitive damages.

[16:11] Steve Yeah, I think to go back to what you were saying about, you know, mock trials and calling us and stuff, I think one of the things that we’ve seen, like you said, is trying cases, doing mock trials to understand the pain points in your case, which is what we would always advocate. But even more so now, like you said, is some of those things that might not be necessarily hot button issues that might have, you know, slipped through the cracks or flown under the radar or didn’t move the needle that much, are absolutely moving the needle now, right? And you don’t want to get into trial and then find out later that what you thought was something that wasn’t a big deal is because you’re getting emotional jurors, because you’re getting jurors who are in a pissed off state or in a different mindset that are gonna, are gonna increase and make that a lot stronger. I think the other thing we’ve noticed too, and you, you work with witnesses, you know, every day, almost every day of the week, so I think you’ve seen this as well, that you know, you know, emotional witnesses—I mean, how many times have you seen this with COVID-19? We’ve talked about it multiple times in the podcast. Well, you know, angry witnesses who are in a different state now, who might be named defendants. Going back to when we talked about what we’ve talked about in the first place about Terror Management and holding on to your world views and grasping onto those concepts that make you feel like you’ve lived the full life. All those different things, those are coming to the forefront as well when you’re dealing with witnesses that are being accused of things. You know, whether it’s we’ve worked on cases that are discrimination cases where people are essentially being accused and call it a racist, you know, those guys are pissed off, right? Or those females are pissed off. Or those people who have injured someone in a day now where the medical profession is being lauded as being on the front line workers of COVID-19, but then they turn around and get sued because of actions that they did and it says, “Wait a second, you know, six months ago everyone was hoisting me up over their shoulders and all of a sudden you’re calling me in and all of a sudden you’re putting my job and my life at the line, of my livelihood on the line, because you’re calling me out and saying that I’m, you know, I’m a piss-poor doctor or that I’ve done something that has caused someone to be harmed.” I mean, I think that’s another thing that there’s a level of anxiety and frustration that’s coming out in witnesses that wasn’t there before as well.

[18:15] Bill Yeah, and you know, we talk about Reptile a lot. I think something particularly now—uh, and by the way, if it—and listen, you and I study this for crying out loud. If, if anybody comes out and says, “Yeah, I’ve cracked the code on how jurors make decisions post-COVID and po—[__],” no you haven’t. This is, this research is in its infancy. We are learning, things keep changing a lot, right? But some things I know are out there. For example, with some of the um, the Reptile themes, right? So now you have various states, various counties, various towns where some businesses are handling things different than other businesses, right? And that’s affecting how jurors feel. Jurors are actively boycotting—and jurors have always boycotted—but now they’re doing it for safety reasons, right? “I don’t, I don’t like the way that restaurant functions because they don’t require you to wear a mask,” or “they do require”—I mean, it works both ways, right? And so how, you know, how jurors are perceiving various corporations and how they’ve handled, you know, COVID uh, from the whole, you know, safety standpoint, I think is going to be uh, critical. Because I think obviously if you’re a defendant and you get a juror that, you know, they’re wearing their mask while they’re driving in their car, right, and they’re alone, and you know, they want you to be perfect on safety, I mean, right? I mean, you see that— Would be a pretty, a pretty bad juror for you. Whereas you get the juror—and again, we’ve talked about this a million times, this is a different kind—you get the juror that will carry the mask with them, they’ll put it on when they need to, they take it off when they need to, and they use their mask based on what? Their judgment. They use their mask based on the circumstances, right?

[20:23] Steve Right.

[20:23] Bill These are very different types of people. I have—wait for this, you’re going to die because I’m going to go to my story. I have to go to my story. I wrote down here. I, I so badly want to identify this group, and I’m not gonna do it because I don’t—I’m in enough trouble as it is, right? All’s I’m gonna say, so anybody that wants to guess, you have a, you have a 1 in 50 chance, okay? You have a 1 in 50 chance. I spoke at the Defense Counsel Association recently for a certain state. Now, if you go through my LinkedIn account, it’s going to be plainly obvious, but I didn’t say it on the podcast. If you could do your homework, you figure out who this group is. By the way, fantastic group. I’ve spoken to this group three or four times now over the last 15 years. Great, great group. Great group of people. And I spoke for an hour and a half on nuclear verdicts. Like, I get there the day before, okay? And it’s very clear they sent out emails like, “Hey, we’re located in a state where the governor encourages mask-wear in indoor settings, meaning hotels, conference rooms, whatever, so we encourage you to wear a mask. If you don’t want, you don’t have to. We’re not checking your, your, your vaccination passports. We encourage it, but it’s not necessary.” That, that was the theme. So I get there and the, the person running it, very, very nice woman. I walk up, she’s at her table, right, where the registrar—I have to register. I walk up, she’s not wearing a mask Steve, she’s not wearing a mask. And I come right up to her and Steve, we’re, we’re ten inches away from each other and I put my hand out and she went like this. She goes, “I’m not ready for that.” And I went, “We’re this close away from each other and neither of us are wearing masks. You can’t even fist bump?” She’s like, “I don’t want to touch anybody.” I’m going, “Oh my god, geez.” So anyway, as I move on with my story, I’m given—so I’m giving this talk and there’s this, um, we have a bad apple in the audience. It happens once in a while. And we’re going over the whole—well, he said, he said two really dumb things out loud to the point where the rest of the group—so this guy’s an [], right? And I know he’s an [] because the rest of the group yelled at him to shut up. That tells me I’m in the right. And then afterwards, a bunch of the attorneys come up to me and say, “Listen, that guy’s a jerk. Don’t worry about him, he’s a jerk.” But he said two things that I thought, you know, we kind of got into an argument and I’m on stage. It’s the first thing he says, which I, I find to be very elementary and just dumb, is he’s like, “Well, when I pick juries, I always pick the smartest people because they’re always pro-defense.” I said, “Really?” My, so my follow-up, I go, “And what, what’s your scientific basis for that?” “Well, they’re going to understand my case better.” Uh, no. No. Steve, talk a little bit about the, the predictive validity of somebody’s, you know, level of education or achievement on verdict.

[24:00] Steve If you use that you’re going to be in trouble. I would say it’s minimal, right? I don’t know how many times I, I grimace when someone tells me they pick based upon—I don’t pick, I don’t pick nurses and I don’t pick doctors. I, if I pick them, and I don’t pick them based upon demographics. Uh, if you’re based—if you’re picking juries based upon demographics, you’re probably doing something wrong.

[24:25] Bill I had—so of course, I always get these bad phone calls a couple times a year. And I got one recently, and it’s from a guy I’m friends with, he’s a trial attorney. He’s like, “Man, I just got lit up by this jury.” I go, “Well, okay.” I go, “Well, what happened?” He’s like, “Well, you know, um, during jury selection—during jury selection, I thought I had, I thought I had this thing nailed. And the one guy, the guy I thought was my guy, he ended up to be the foreperson.” I go, “Really? Really, the foreperson?” I go, “Well, who was he?” Goes, “He had a master’s degree in engineering, electrical engineering. He’s the smartest guy on the panel and he was my foreperson.” I go, “Awesome. Now, how did that work out for you?” He’s like, “15 million dollars.” And he’s just like, “Man, I really—” I go, “Let me ask you, I go, did you, did you ask him any like meaningful questions about maybe his personal belief system? Did you assess his personality type? Did you maybe poke and prod around his attitudes, right? His experiences in this particular industry?” He’s like, “Well, no. I, no, I, I saw his degree and I wanted to protect him. I didn’t want to ask him any questions because I assumed he was smart. Smart people always side with the defense.” And I’m like, “Joe, that’s, that’s the dumbest thing I’ve ever—” I should have just hung up on him.

[25:57] Steve Yeah, yeah.

[25:58] Bill But you can’t. If you’re picking juries like that, hey, it’s—it’s, I think it’s unethical. I think it’s unethical. You’re doing your client a complete disservice by doing that. It’s just, it’s dumb. You might as well just start flipping a coin. Okay, heads I’m gonna strike, you know, tails I’m not gonna—I mean, it’s really, really crazy. And so there’s a science behind this that’s been established, but now that science of jury selection is going to have to be upgraded because of COVID, because of the social unrest issues, and because of the Trump effect, it’s gonna have to be upgraded and it’s gonna have to evolve. So that was the first dumb thing he said. The second dumb thing he says is—I’m showing the videos of the pivoting and how bad it is and how bad the witness is—

[26:52] Steve I don’t know, I don’t want to know where this goes.

[26:54] Bill He raises his hand, he’s like, “No, I want—” he goes, “I want my witness to argue.” I go, “Why? They look terrible and I can scientifically prove to you the jury hates it. They lose all their credibility.” He’s like, “Well, I don’t want the plaintiff attorney to have the soundbite.” And I went, “Soundbite of what?” He goes, “Well, my case has bad facts.” I go, “If you got a bad fact, it’s coming out, my friend. If you argue about that bad fact for 15 minutes and then at minute 16 you go, ‘Yeah, that’s true,’ facts are, facts are facts, right?” If you have a bad fact—if you have a bad fact, you better hug it. You better embrace it, because you’re stuck with it, right? And if you look like you’re afraid of it and you start becoming argumentative, you start becoming evasive, you start becoming defensive, it kills your credibility in front of the jury. Now think about this, because attorneys do it all the time. I—because I have attorneys call, like, “Well, how do I handle this bad fact in my opening?” I go, “Head on. Head on. You, you, you head on, right up front. You don’t ignore it. You don’t run away from it. You certainly don’t evade.” I mean, if you hit it head on, because then you have control over it. You start fighting with facts, you look terrible, right? And so, so we got a big argument. So at this point in the game, one of the other attorneys in the group stands up and says, “Hey, enough is enough. Will you stop and let this guy do his presentation?” And then everybody claps. So the guy got shamed for arguing with me on two key issues and I won. I’m a 2-0 on those issues. So, but it was a good group to talk to. But again, it’s just another thing where, you know, there’s a lot of um, I think if you’re an attorney and you’re going to make decisions on your gut feeling and your intuition, I think that’s a very, very dangerous way to play this game because it’s certainly not scientific. And then you’re going to end up like the guy that called me going, “Well, I had an engineer, I felt good about it. God, I just got nailed.” I think that was pretty preventable. What do you think?

[29:31] Steve No, I think so. And I think one of the biggest things I, that I think we try to always impress upon attorneys and other—I mean, I, I don’t think you and I do it all the time, too. Like, I don’t think you should be ashamed or feel bad to reach out to someone who’s a little bit more expertise than you are in this area. So for example, I can think back, you and I just had a call last week with probably one of our favorite human beings in the world who’s an attorney who is very, very smart, has gone to trial many times. And what did he do? He called us and said, “I got a trial coming up and I, I don’t know how to formulate these, you know, this area. What do you guys think?” Right? Even though he’s, he’s a grizzled trial veteran and probably, you know, knew how to do it, but rather than worry about gut instinct or anything like that, he wanted to reach out of getting a more sense of: what’s the psychology behind it? What do I do to approach it now in post-COVID with these certain areas? How do I address them, right? Rather than just say, “I know what I’m doing, shut up, I’m just gonna keep doing what I’m doing and keep picking with my gut,” which obviously, as you already said, doesn’t help.

[30:36] Bill Yeah, I, I mean—so back to the nuclear verdicts topic. It’s—and I said this during the speech, I’m like, “Ladies and gentlemen, like, there’s no—we’ve said there’s no mystery. This is not some enigma. What is it, enigma wrapped up in a riddle surrounded by whatever?” You know, no. The plaintiff’s bar, they’re telling you what they’re doing.

[31:02] Steve Yeah.

[31:03] Bill And you start doing the post-mortems of nuclear verdicts, and guess what you find every time? Uh, didn’t mock trial or focus group? No. So you were going on your hunches on how you should try this case. You did your theme development because you bounced it off your spouse is what you did, okay? You didn’t do any advanced witness prep. And you picked your jury because you, you liked the engineer, right? That’s what’s going on. That’s—it’s the same story every time. And then you and—and then you go talk to the plaintiff attorney which, by the way, they love to talk after the wins. You want the first thing out of their mouth? “I mock tried this thing seven times. I had my witnesses ready. I hired a better expert than the defense. Oh, and I hired a jury consultant for jury selection.”

[32:00] Steve Yeah, I mean, there’s podcasts out there, I won’t give them the—I won’t give them a shout-out, but there’s podcasts out there that are plaintiff attorney podcasts where they talk about all these things, right? And they’re open

[32:10] Bill And they laugh, right? They laugh. It’s funny. So I told the story during the speech because I’m going over all these—like this whole social inflation thing, you know, that thing just gets me going. Makes me—because it’s, it’s a garbage can diagnosis of nuclear—it’s, it’s all [__]. Yeah, jurors are—jurors are fed up. It’s, it’s a lot more complicated than that, okay? And so they ran—so they had this—I looked up the article, I sent, I sent it to our marketing guy, we’re gonna make a slide out of it. It had this—it was a magazine article talking about nuclear verdicts and all the causes of which were complete just myth, hypotheses. We’ve been over this. Nothing that’s predictive, right? It’s like, “Well, the plaintiff’s bar is doing a lot more advertising.” So that—no, no, no, no. It may lead to more claims, it’s not a, it’s not a causative factor of nuclear, of nuclear verdicts. So they, they go through all these things and say, “Yeah, this is what’s causing nuclear verdicts.” They’re totally wrong, okay? And this is the insurance defense industry like, “Don’t blame us, it’s the jury, it’s society’s fault.” Yeah, right. So then they interview Brian Panish. Brian Panish which, by the way, is a top five plaintiff lawyer, okay, out of Los Angeles. And I’ve never met him, but I’ve had several cases against them. Highly respectable, damn good attorney. I have nothing negative to say about this guy. You talk to defense attorneys around the country, they’ll tell you Brian’s a damn good attorney. They interviewed Brian, but you know Brian Panish says? He laughed in their face. He goes, “Ah,” he goes, “Here’s the reason for nuclear verdicts: I’m kicking your butt. I’m out-working you. I’m out-preparing you. I’m hiring the better expert. I have better attorneys than you have. That’s why we’re having nuclear verdicts. We’re out-lawyering you.” That’s what he said in the article. I don’t disagree with him. I, I totally agree with him. I totally agree. I’m not gonna—you know, the insurance people, they want to blame society when Brian Panish is over here getting ready for the case, right? He’s doing the right thing. He’s doing all the things necessary because he knows, he knows, right? He, he knows it’s not plaintiff attorney advertising driving, driving nuclear verdicts. So again, I say all this stuff, it gets half the people mad at me. I’m looking for the counterargument. I’m looking for the counterargument. Call me and give me—why is Brian Panish wrong? I think he’s right.  

[34:50] Steve Sounds like a good, uh, podcast idea, right? The, the debate of Kanasky and whoever wants to talk about—not, uh, the societal impacts of nuclear verdicts versus what we often talk about.

[35:03] Bill I know. All right, let’s wrap this up. Let’s rock.

[35:08] Steve Yeah, I think, uh, I think this is a good—as I said before, it’s never good when we’re getting out of here because chances are we’re ranting. But starting a podcast, stop talking about how these, you know, fights that are breaking out at, you know, football stadiums, baseball stadiums, are a larger kind of, you know, larger microcosm of what’s going on in society. Both, you know, just in general because of COVID-19, but essentially how that leads into jury selection. That as of going forward, I think attorneys, especially on the defense side, need to be very aware that jurors are in a different state of mind, which I know they are, but I think at the same time it bears repeating again that people are much more entrenched in their views now. That if they’re a pro-plaintiff or pro-defense, they’re going to skew more that way. So it becomes, you know, increasingly important to make sure that we identify those people and make sure we get them out or at least understand the concepts that are going to drive these, these verdicts up.

[36:03] Bill Yeah, you are correct. And something else to throw in here—now, this is a very unscientific statistical representation—but between the airports, the airplanes, and sporting—it, all this stuff going—well, I’ve been kind of heating up, keeping a very informal count. Ready for this? Each race has been represented. Women are involved in about half of these things. It’s across various age groups. It’s not like there’s some group you can pick on. No, no, no. You start looking across the board, because trust me, it’s happening either every day, every few days. You’re going to go on your newsfeed, you’ll find one. Start looking at the people involved—it’s very diverse. It’s very, very diverse. And, um, and um, yeah, I think going forward, um, you know, when you’re getting into the, uh, jury selection process, I think it’s—it was always extraordinarily critical. I think now it’s even more critical going forward.

[37:05] Steve Uh, it’s perfect. I’m gonna leave it with that because I think you hit the nail on the head right there and summed it all up perfectly. So Bill, thanks for being on the podcast. I’m sure we’ll be back talking soon on our next rant.

[37:16] Bill Absolutely. See you next time.

[37:18] Steve All right, thanks. Thanks for joining. This has been another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences Inc.