Episode #258 – Voir Dire Rewired: A Neurocognitive Approach – Part 1 of 4

Bill Kanasky, Jr., Ph.D. kicks off the first of a 4-part series on a sophisticated approach to voir dire. Bill lays out a highly advanced voir dire model based on behavioral science, cognitive psychology, and decision making research with a focus on cognitive fit, flexibility, and first impressions. It is critical in voir dire to build rapport with jurors to normalize differences in opinion and disclosure of information. The goal is to give jurors an easy out to strike themselves. Bill shares example questions to accomplish this and how to identify juror fit. Next, Bill talks about assessing cognitive flexibility and confirmation bias and gives examples on how to identify jurors with inflexible thinking. Lastly, Bill talks about the importance of likability, vulnerability, and relatability of the attorney and how that impacts your voir dire success and the rest of the trial. It is imperative to use personal experiences and stories to get jurors to open up, to be honest, and to trust you.

Full Episode Transcript

[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky and no I am not in the podcast studio today. I’m here at headquarters in Dallas, Texas in the library as you can see behind me here at CSI and I got a big event going on uh the next couple days with some corporate rep witness training. Got a company bringing several people in for that training. Should be very fun. And I want to record a podcast today. In fact, it’s going to be a series. It’s going to be a four-part series in which we cover uh voir dire.

Now, I have done several podcasts on voir dire. And the more I do, the more my phone is ringing, the more emails I’m getting with questions. And I decided to put together uh a an outline here. It’s going to take a while to cover this stuff. That’s why I have to do this in three or four episodes because um we have developed a uh a model in which uh it’s really just it’s a full defense voir dire model um that comes in a practical sequence that’s really grounded in behavioral science, cognitive psychology and decision-making research. Uh each section of this model is really designed to uh look for bias to preempt emotional distortion uh and really empower discipline jurors to hold the line on the law and evidence. Uh that’s really really important in in deliberation.

[02:04] Bill So we’re trying to accomplish several things uh with this model. Uh, this is not your traditional or standard voir dire. No, no, no, no, no, no. This is really what this is. This is a strategic psychological map. Okay, we’re doing psychological mapping here of not just what jurors say and how they say it, but uh how they think, how they form beliefs, how they carry those beliefs, uh how they react to various stimuli and how they rationalize various emotional responses. So, understanding core concepts, deep psychological concepts like uh confirmation bias, uh anchoring effects, anchoring is a big big deal. Uh and so we have to cover that. Um you know, how they reason, how they use their emotions, uh do they use, you know, more logic than emotion, right?

By understanding these concepts, you can really stack the deck in your favor legitimately um and really build a panel of jurors that’s better equipped to follow the law and to resist really the plaintiff playbook, particularly the reptile uh edge, you know, the edge playbook. Uh that’s really what you’re doing here. You know, the purpose of voir dire obviously one of the purposes is trying to expose bias, expose the people that you don’t like and strike them. But there’s a lot of other things going on here, right? Um indoctrination. Okay, you want to be planting seeds on case themes. Inoculation, that’s the important. So, I’m going to I’m going to give you all this. Uh again, it’s going to take some time. We’re going to do it over several uh episodes, but in the courtroom right now, I mean, you know, the courtroom environment is being shaped by emotionally driven narratives, right? And and multi-million dollar asks to jurors. It’s a it’s kind of a crazy time out there, right?

[04:19] Bill So by doing voir dire in this more strategic and advanced way, I think this can give defense counsel some of this control back. Okay, I think that’s really really important. And so, I’m going to take you through these various uh areas. These are areas that I would recommend covering in any case. It doesn’t matter. Uh I think these are really important. I am authoring a paper on this. Uh Dr. Wood and I are authoring a paper on this. It’s 95% done and so I’ll be able to send out a paper on this and I’m going to cover all this in the paper, but I thought important to put it on uh the podcast because I really think um you know I I talk about opening statements a lot how important they are and they are just so immensely important. But here’s the issue. The voir dire ties into the opening statement. It ties into everything else. And there’s a lot of power in voir dire, I think, that’s just not understood and not being utilized by the defense.

So, let’s get into it. Now, this first episode, we’re going to talk about cognitive fit, flexibility, and first impressions. Now the first area where I where I think attorneys should start voir dire okay you have to the first thing you have to do is you have to engage with people um what’s really important in voir dire this is really where a lot of bonding can get take place between you and jurors remember it’s the only time in the trial where you can interact with jurors meaning it’s bilateral right it’s bidirectional it’s they talk back to you.

[06:07] Bill So, this is really where I think uh as defense counsel you could really bond with them and simultaneously you want to get what I would call a fit check. Okay, a fit check. You want to do a couple things here. Number one, you want to normalize differences in opinion. You want to normalize disclosure of information of internal information. Okay? And you want to identify bad fit jurors early. Here’s the rule here. Okay? All—and you do this throughout the voir dire. I call it always giving them the out. Give the jurors an easy out to strike themselves so you don’t have to strike them, right? Get them on cause. All right.

So, we’re going to be looking at things like social desirability bias, self-selection theory. So, here are some sample questions here and how how you want to do this, right? So, a really good question to start off with. Okay. So, plaintiff attorneys just sat down. You get up. Yeah. You introduce now remember you don’t do this in opening statement. You do this here. introduce yourself, your firm, your team, your your uh your client. You do all that now. You don’t do that in opening statement. Don’t do that. You do it now. You get that ball rolling. Okay.

[07:39] Bill First then then the first really easy open question okay is you say okay you’ve heard a little bit about this case when plaintiffs you know uh plaintiff’s counsel was talking to you okay is there anything about this case or this type of case that maybe makes you feel like you’re not the best fit on this jury? Okay, very very important question. Now remember it’s always the setup. You have to encourage disclosure and normalize it. Okay, so next thing you say is you say something like, hey, some of you may think you’re a decent fit for this jury. Others because of maybe your experience with this type of uh this type of information, this type of litigation or this type of industry. Yeah, maybe you’re a better fit for a different jury, for a different case that’s down the hall.

Okay. Now, have you heard anything where maybe internally, you’re saying to yourself, you know, I’m not sure I really fit on this particular jury, on this particular case. Now, can you raise your hand? Great way. Always give them the easy out and say, the other thing you can say is, “It’s okay. Listen, if you’re not a good juror for this particular jury, doesn’t mean you’re a bad person. Just maybe you’d be a better fit for a different case.” So, the whole theme here is fit. We want you to be a good fit for this jury. And there’s two ways to be a bad fit. One of them is you have some negative feelings about this particular industry in this case or the case facts in this case that you’ve heard thus far. Okay? You’d be a bad fit.

[09:38] Bill Or it may be the opposite that you may think you’re the perfect juror because you know so much about this industry. You know someone that works in this industry. You know a lot about the things in the—Okay, maybe that doesn’t make you a good fit as well because you know too much. We want neutral jurors. So, you could be a bad fit in a negative way. You could be a bad fit in a positive way. And maybe a better fit for you to be a neutral juror, maybe you should be a juror on a different case. Okay, that’s what you are trying to accomplish here. These are easy questions. It encourages dialogue. It normalizes disclosure and say it’s okay if you’re not a good fit. It’s fine. This happens every day in courtrooms across America. Maybe you’re a better fit on a different case. and get some hands going, okay? Get some dialogue going.

And you’re gonna find out really quick, there will be a handful of people on the panel that will immediately raise their hand and say, “I don’t think I’m a good juror for this case because of maybe my previous experiences or my feelings towards this industry.” They’ll cough it up for you. Give them the—always give them the easy out to strike themselves. But the only way you do that is you got to set them up. They have to trust you. They have to like you. They have to trust you. They have to like you. That’s why you want to start here. These are not, we’re not prying deep into their brains here, right? No, these are easy questions, easy topic. And just get the conversation going. Develop rapport. Get them to like you. Get them to trust you and normalize disclosure. Remember, this stuff in this question is going to carry over to all the other questions. Normalize openness and disclosure and there’s no penalty. Okay, there’s no penalty. It doesn’t make you a bad at the worst case scenario.

[11:46] Bill We send you home with the check or you go down the hall to a different courtroom with a different case and maybe you’d be a better fit over there. Okay, it’s the fit. We got to focus on the fit. Always start there. Great place to start. Low threat. Get that discussion going. Okay. Secondly, you’re going to want to assess, okay, cognitive flexibility. Okay. Cognitive flexibility is very, very important. And uh confirmation bias profiling. Now, listen, confirmation bias is deadly. This will kill your—if you don’t assess this, this is how you get whacked. You don’t ask enough questions, but you don’t ask uh the deep questions. Okay? You have to spot closed thinkers, people that jump to early conclusions. All right? We’re looking for uh people that are cognitively rigid versus flexible. All right? So, we got to get the discussion going about this.

Now, how do you do that? Here’s an example question. All right, ladies and gentlemen of the jury, can you ever think of a time where you made a decision and you thought you were correct, but then after you got more information, you ended up changing your mind? Can you think about that? Can you think about a a time where that’s happened to you? This is a fantastic question. Okay. To assess this cognitive flexibility versus rigidity type of issue. Right now, it’s all about the setup. Okay? That is the question. But you don’t end there. You add—here’s I’m giving you the formula, guys. I’m giving you the formula. Right? That’s the question.

[13:51] Bill Now, you don’t take answers right there. Okay? Here’s what you do. You go, “Let me give you a personal example.” Another way to build rapport, trust, and likability. Okay? Now, here I’m going to I’m going to tell you one right now. My son, my 23-year-old, okay, he brought home a girl. Now, he had not dated for a while. He took some time off from that. And uh my wife told me he has started seeing a girl. haven’t met her. They’ve been dating for about a month, six weeks, and he decides he’s gonna bring her home to to meet mom and dad. I come in from work. Uh, she’s already there. She has met my wife. I come in. I see her. Hello, I’m Bill. I’m I’m I’m Billy’s dad. And I shook her hand. And, you know, kind of the get to know you phase. And you know, maybe 30 minutes went by, some small talk. And I got to tell you, I I I didn’t I didn’t really get the I’m not saying I got the ick. I was just saying like I don’t really know if I like this person. I wasn’t really impressed. I wasn’t. I wasn’t.

And I got to tell you, couple weeks went by, spent some more time with her. I would say like after a month of kind of seeing her over at the house a couple times a week, getting to know her, she loosened up a little bit. I loosened up a little bit. Now, I think she’s fantastic. I think she’s fantastic. Okay. Have you, ladies and gentlemen, have you ever had a situation like that where you saw something, you heard something and you made a judgment very quickly, but then after getting more information, you changed your mind? Raise your hand. Tell them. I want to hear about that. Get people talking about that. Okay? Get people talking about that.

[15:59] Bill You can also ask some other questions here. Who tends to make decisions when you’re making important decisions? Who tends to kind of go with their gut? You go, you go with your gut. Who tends to make decisions like that? Right? Remember, these are the people we don’t want. People that make early impressions. Okay? Now, how do you set this up? Right? Because remember, if you just ask open-ended, a lot of people don’t want to share that stuff. Always force categories, force choice, right? Multiple choice or one of two choices, right? You see, some people some people like to make decisions quickly and they go with their gut. Other people are extraordinarily patient, and they really wait till the end. What type of person are you? Do you wait out to the end? You take—do you tend to follow your gut and make decisions early because time is money. What type of person are you?

Again, open. Give them the choice. Force them. Always force them into a choice. If you just give the open question like, “Hey, what type of a decision maker you are?” No one’s going to—No one’s talking. Okay? Force them into a decision. Some people do things this way, other people do it this way. Maybe there’s a third and other people do it this way. Which one are you? It gets it. It takes all the pressure off, builds more rapport, and again, you’re encouraging disclosure with low pressure. Anytime you just ask an open, like, tell me how you feel about X. It’s a terrible question. I read a voir dire script two days ago. They were all the it was like, no one’s going to raise their hand and answer these questions. It’s too much, too much pressure. Give them the options. Let them pick.

[18:00] Bill Okay. All right. So, cognitive flexibility, confirmation bias, profiling. Okay. We have to cognitively profile these people, right? Get them to tell you about their personal stories. How do you do that? You tell them your personal story. And what you’re going to see is with all these questions, okay? It’s not just the questions. It’s the setup. It’s the system. It’s how you do this. I want to make this very, very clear. I never just hand a client a list of questions to ask because you got to set them, I can’t put that on paper how you set it up. You got to get people to open up and trust you. How do you do that? You open up yourself. That’s what you do.

So, in all these areas here, you’re going to tell a little story about yourself and about how you are or about you thought something and then changed your mind or you made a mistake about something, right? That’s what you’re going to do. And when you do that, when you make yourself vulnerable in front of the jury, they’re going to respect you. They’re going to like you. They will make themselves vulnerable and they will open up. All right. You guys having fun with this? Let’s go to the next section here.

Now, the now this is this is something that um we typically you’re going to ask anyway, right? So, again, you want to get into the um you want to get into people’s backgrounds and belief systems. Uh this is really really uh important. And so, um, there may be something in someone’s background or their belief system. And remember, they’ve already kind of heard a lot about the case during the jury selection process that uh make it may make it difficult for them uh to be fair to both sides or or or to one side.

[20:03] Bill And um you want to see is anything going to get in the way of them being fair. Okay. Now this is so—so this is usually something you want to stick at the end. It’s still in the cognitive category right but this is typically something you want to get at the end. Okay so when you’re ending your voir dire okay, you’re ending your voir dire this is something I like to stick at the end to remember you always want to give them the easy way out. Give them another way. So, you’re gonna start your voir dire giving them a way out. Let them strike themselves, but you want to finish the same way as well. Just take a little bit of a different angle and just say, “Okay, you know, you’ve you’ve heard a lot today. We’ve been here for several hours, right? Is there anything about your background or maybe an attitude that you have or a belief system that you may have that’ll just really make it difficult for you to be fair? Anything we’ve missed now? Now, now’s your chance. It’s okay.

And by the way, ladies and gentlemen, you always say this. It’s okay. It’s It’s okay. Remember, this happens every day in US courtrooms and we we send you to a different case. Maybe that maybe that will be a better fit. So, you’re you’re kind of repeating the fit test here. You’re just doing it at the end. Okay. Another way to ask it is to say, “Okay, now everybody wants to be fair, right? But is there anything you heard today or saw today that may get in the way of you being able to do that? And again, ladies and gentlemen, it’s it’s okay. It’s okay. All right. Always give them the easy way out. Is there anything you’d like us or the court to know about you before we move on to the the next section here of the trial? It’s okay. Raise your hand. Tell us.

[22:24] Bill Okay. Now, you would be shocked how often this works. when you go back and revisit an area. Now, I’m going to draw a little I’m going to connect some dots here. This happens in deposition a lot where a witness gets asked a question in the first hour and then a really good plaintiff attorney at the end of the deposition revisits the original area to see if the witness will change their answer or to or to volunteer more information. Highly effective. You’ve all seen that. Highly effective. Okay. I tell every witness that last 30 minutes, be ready for questions you were asked three hours ago because they want to see if you’re asleep behind the wheel, right? Okay. This works in uh voir dire as well. Give them the easy opportunity to get out and say, “Okay, like we’re wrapping up here.” You know, is there anything else now?

This pretty much this is the cognitive section that I was talking about. And again, I think the most important part here is that this is such a great and this is important. No one talks about this. Your likability and credibility as a trial attorney. Okay. Step the first domino there. Okay. The first step is right here. What we’re talking about is in this process where you can engage and interact with the jury. Remember, for the rest of the trial, it’s not bidirectional. It’s it’s one-directional. You’re always talking to them. They’re not talking back. They’ll give you eye contact and body language and stuff, but they can’t verbally talk. This is the only full interaction you will get with these people. Okay?

[24:26] Bill So, it’s absolutely critical to start off well. Okay? We want to start off well. Do all that introduction stuff that we talked about. You got to normalize disclosure. You’ve got to be open. You’ve got to be vulnerable. And do that fit test right up front. You’d be shocked how many hands will go up saying, you know, I don’t think I’m a good I may not be a good fit for this jury, or I may be too good of a fit. Here’s why. And they’ll tell you. But to do that, they got to like you and they got to trust you.

Now, here’s the—Now, here’s here’s something really important. By doing such a good job of this in voir dire this will carry over into the rest of the case. So, what I mean by this let me say this another way whichever attorney in voir dire becomes the most likable becomes the most believable and becomes the most credible. So, there’s a lot on the line here. So, we’re talking about the type of questions to assess these jurors and get the right information. That’s not the only thing that’s going on here. You start winning the case here by who you are as a person, how likable you are. Okay.

[25:56] Bill Now, one of the main tools you have to accomplish this again is showing your own vulnerability. And you’ll see as we go through the various episodes and when you’re asking questions, right? Tell that little story about yourself. Even make fun of yourself a little bit. Admit a fault. Admit a mistake. Look at me. Okay. When my son brought the girl over, I got tell you, I jumped to an early conclusion. I was dead wrong. You could tell the jurors the same thing. And then you follow up with, “Do you have any examples of that with your life?”

I have another one. I’ll tell you what, this is a work-related one. And some of you know who you are because you listen to the podcast. I have attorneys right now that I work with, I trust, and they’ve even become personal friends. Example, Mike Bassett. Example, Tad Eckenrode. They’ve both been on the podcast. Example, Brad Hughes podcast. Example, Doug Marcello. Okay, great, great, great people. Okay, now there are some other ones that I’m just as close with. I’m not going to name you, but I got to tell you, I don’t think they particularly liked me when they met me, and I don’t think I particularly liked them. It started off rocky. Okay.

[27:34] Bill But then as they got more information and exposure to me, they started to like me more. And as I got more exposure to them, I started to like them more. And then as we ended up spending more time together and I learned more information about them, they learned more information about me. We really really hit it off. And my first judgment about them and their first judgment about me was wrong. I needed more information and so did they. And now they’ve become great colleagues, great friends, great clients. Right?

You can tell stories like this, but I think doing that really sets you apart. I think the plaintiff’s attorneys, I’ve seen them do this. They’re very, very good at it. But having that openness, telling—Remember, if you want to get jurors to express themselves, their feelings, their experiences, their thoughts, their desires, that requires trust. And the only way to do that is to do it yourself, right? Show them. Don’t tell them it’s okay. It’s okay to tell me anything. Is it? Show them it’s okay. Show them it’s okay by telling them your personal stories. And with any of these areas, what you’re going to find is that those stories are out there. Okay?

[29:07] Bill I tell the famous story during my speech is the Cracker Barrel conspiracy that’s 20 years old. 2005, we’re driving from Chicago down to Florida to visit family. We stopped by the Cracker Barrel. It was a horrendous experience. Terrible service, terrible food. Whole thing was a nightmare. The service sucked. I talked to the manager. That didn’t go well. It was a terrible experience. And from that experience, I have not been to a Cracker Barrel in the last 20 years. And I will never go back. That’s my experience. Now, my wife was there, too. She’s been back 20 times, maybe 30. Okay. Now, there’s a bad experience I had. My wife and I were both at the same experience. It was terrible for both of us. Okay. She got over it pretty quickly and let it go.

I’m still angry. I’m still angry. 20 years later, they will never get another nickel. At this point, the jury would be laughing. And then you just ask the jury, “That’s my story. What story do you have?” You ever been in that situation where you have a bad experience and you know, maybe you get over it quickly and your spouse doesn’t or vice versa? What what type of person are you? What type—you like me? Do you hold grudges or are you like my wife? You kind of let it go quickly. What type of person are you?

[30:47] Bill That is the art. Okay, the questions I’m telling you about with all the psychology, that’s the science. But what I’m describing to you right now is the art of jury selection. Getting people open up, getting people to be honest, getting people to trust you. Once that happens, they like you. They like you, which is massive, okay? They like you, okay? And that gives you a very high level of credibility at the jury. So, when you walk up there for your opening statement, okay, you could be up by two touchdowns and not even know it before opening statement or you could be down by two touchdowns and not even know it if your adversary does these things better than you are.

All right, that’s episode part one of four. Okay, part one of four and I will be back for part two very shortly and uh I hope you’re getting into this because this is very exciting stuff for me because I want to really rewire and redefine how voir dire is done and give you guys uh the best tools and weaponry out there. All right, Dr. Bill Kanasky from Courtroom Sciences. This is the Litigation Psychology Podcast. We will see you for part two next time.