Bill Kanasky, Jr., Ph.D. talks about the role of juror beliefs and attitudes in voir dire and why they must be treated as distinct concepts. Beliefs are what jurors think (cognitive), while attitudes are how they feel (emotional). Bill emphasizes that while many attorneys stop at/after belief-based questions, it’s the follow-up attitude questions that reveal the real risk, since emotions ultimately drive juror decision-making.
Bill gives an example of the sequence: start with belief questions such as “Do you think corporations put profits over safety?” and then follow up with attitude questions like “How do you feel about that?” Two jurors may share the same belief but have very different emotional reactions with one seeing it as a natural part of capitalism, while another may express deep distrust. That emotional distinction – the ‘why’ behind the belief – is where attorneys uncover risky jurors.
Bill stresses that attorneys must not be afraid of uncovering negative emotions. In fact, identifying jurors with strong negative attitudes provides valuable opportunities to uncover additional risky jurors by asking who else feels the same way. Help make it easier for jurors to strike themselves. He advises attorneys to normalize negative responses, encourage openness, and use follow-ups, including multiple-choice options, to make it easier for jurors to express themselves. Ultimately, he argues that separating beliefs from attitudes and digging into emotional responses is the key to identifying and striking high-risk jurors.
Full Episode Transcript
[00:15] Bill
Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences.
Dr. Bill Kanasky here.
Dog days of summer.
It’s terrible. And my air, my air conditioner, it’s, I mean, it’s the middle of summer, air conditioning takes a dump on me.
So right at about 3:00. Thankfully it’s only my upstairs air conditioner. But this is where the, this is where the podcast studio is at. It’ll be like 85 degrees up here in a couple hours. So, I got to crank this out now.
How’s everybody doing?
Got a very, we’re going to talk, uh, more about jury selection in voir dire today because there’s an important topic everybody’s kind of misinterpreting. Got to clear something up.
But let me tell you a story.
[01:17] Bill
And maybe this attorney, I’m supposed to talk to him this week, maybe he’ll come on the, uh, he may come on the podcast and share his story. So, I get a random direct message in my LinkedIn, and the only thing I want to tell you, because I’m not sure he’s going to agree to come on, he’s a defense attorney in California.
And he sends me a direct message on LinkedIn and he says, “Bill, um, we just started a big case, big case out here in California.”
And now keep in mind, I don’t know this individual. I’ve never met this individual. Apparently, they follow me on LinkedIn. That’s great.
And he said essentially that they abandoned their traditional voir dire plan for this case. They listened to my four-part series on advanced psychological voir dire, and they implemented that during the jury selection process for this case.
He said it was amazing. He said that, um, it was unlike anything they’ve ever done before. They said it, they felt great about it. It set the tone. They linked it to their opening.
[02:48] Bill
And then like every 10 or 12 days, he would send me a, this trial went on for like 9 weeks, crazy, and he keeps sending me messages on how things were going. So, he sends me a message a few days ago and he says, “Bill, we got a full defense verdict.”
And in the message essentially said he totally believed it was because the way they did voir dire and jury selection, how they used the advanced voir dire questions voir dire, right, guess it depends on where you’re from, use the advanced questions like I outlined in the four-part series, and said it was a total game changer.
So, um, that’s a great story. That’s awesome.
Now, keep in mind, I didn’t work on the case. I don’t know this person. He sent me a message. We’re supposed to have a phone call this week. I want to hear all about this case. But that’s the whole point of this. That’s why I’m doing this, okay?
You can’t have a jury consultant just sitting with you at every single trial. Number one, that’s impractical. Number two, if you’re not asking the right questions, I don’t care what consultant you have, you got to have the right game plan, the right blueprint.
That’s what’s most important.
[04:22] Bill
Not some schmuck jury consultant. What are they going to do? Do they have a crystal ball?
You got to have the right plan. You got to plant the right seeds. You got to ask the right questions.
That four-part series came out maybe a month or two ago. Go, if you haven’t listened to that, go, go, go listen to it. It’s four parts. It breaks down the four sections of voir dire questions, they’re advanced psychological questions to do various things, because that’s really where you have to up your game if you’re going to trial. You can’t screw that part up. You can’t do it. And so many people do.
And then don’t forget that your voir dire needs to be surgically connected to your opening. Very few people do this or know how to do this.
So, what do I do? I come on the podcast. I tell you how to do it. I write papers, tell you how to do it. It’s a good resources.
So, that’s a very good positive story. It’s always good to see a big win.
Do I have a rant for today? Yes, I have a rant before I start jumping into, because I got some more voir dire issues to cover.
[05:47] Bill
My rant today. Neck, these neck pillows that people travel on the airplane with. God, it’s a bad look.
Okay, if you’re taking a two-hour flight and you walk on the plane with a neck pillow, I know, I think I just lost a little respect for you. But here’s where the respect is actually lost, is no one knows how to wear them the right way.
They wear them backwards. Everybody comes on with the neck pillow, right? They have the open part in the front. Not how to wear it. The open part needs to be in the back so it keeps your head up straight. And no matter what direction your head’s going to go, because your head ain’t going back, you got the seat. The seat’s behind you. The headrest is behind you.
The open part goes on the back. But no, everybody has the open part in the front. Then you fall asleep and your head goes straight forward. No support.
Okay? So, if you’re going to wear one, now listen, if you’re taking the six-hour flight from Orlando to Seattle or from LaGuardia to LAX, okay, you want to bring your neck pillow, I guess that’s okay.
But for crying out loud, at least wear the neck pillow the right way. It’s embarrassing.
[07:20] Bill
I’ve never owned a neck pillow. I’m, I’m not. No. Nope. Nope. Nope. Nope. Nope. Not going to happen. Okay. I had to get that rant out of the way. But if you’re going to get, I mean at least wear it the right way. Get the most benefit out of it.
Still looks, it still looks silly. Come on.
All right. Let’s jump into, um, more jury selection tactics here. So, let’s, now this is a really complicated topic. It’s really confusing. Um, I have a paper in the works on this to break this down. May have to do a couple podcasts on this, but we have to talk about, we always talk about what’s predictive of jury decision-making, right? And you want to tap into this during voir dire.
And what I’ve told you over and over and over for the last five years, it’s belief systems and attitudes are really, really important.
Okay? Actually, more important than experiences. Remember, people get over bad experiences.
[08:27] Bill
Unless you’re like me, I hold a grudge. You have to find those people. But a lot of people get over bad experiences and don’t have that carryover. Or you’re like me and you get bad service at a restaurant and then you boycott it for 15 years, because that’s what I do.
That’s pretty easy to pick up on. You ask those questions. You ever have a bad experience with a company or a restaurant or whatever? Did you boycott? Did you ever go back? How did it end? Did you move on?
That’s how you go through the experiences questions, right?
So, you have, you know, medical cases, trucking case. You ever have a bad experience with a hospital or a doctor or a nurse? Like, just because someone says yes doesn’t mean they’re a bad juror. You have to dig deeper.
Right? You ever have a close call with a big truck on the interstate, scared you? Well, just because someone says yes doesn’t mean they’re anti-trucking. Okay, you got to, you got to dig deeper. How do you feel now? You still mad about that? You still scared about that? That still bother you? Or yeah, maybe it bothered you for a week and then you went on with your life.
Okay, that’s the whole experience thing. Very important questions, not where the gold’s at. The gold’s at is going to be belief systems and then attitudes related to those beliefs.
[10:11] Bill
Now, this is where people, again, it’s very difficult. Everybody thinks they know what this stuff is. You don’t. So, let’s kind of define this, right?
So, beliefs, beliefs are what you think. Attitudes are what you feel. Let me say that again. Beliefs are what you think. It’s a cognitive concept. Attitudes are how you feel. It’s emotional.
We have to, there’s a very clear distinction here and these often get confused. Okay? So again, beliefs are cognitive, attitudes are emotional.
So, let’s take an example. If you ask the question in voir dire, raise your hand if you think that corporations always put money, profit, revenue, they always put that first. Raise your hand if you think that. That’s a belief system. There’s nothing emotional about that. So just because someone raises their hands to that doesn’t really mean anything. It’s the follow-up question.
So, you always start with beliefs, then you follow up with attitudes. That’s the sequence here. Belief first, then attitude. Okay?
[11:46] Bill
So that’s your baseline belief system questions. Corporations exist to make money. It’s their top priority. Bunch of people are going to raise their hands.
The follow-up question, right, is how do you feel about that?
One juror may say, “Well, you know what? I mean, that’s just capitalism. I’ve owned a business. Of course, I want to make money. Hey, as long as they follow the law and they want to make money, that’s how the system works. I’m okay with it.”
So, there’s an example of a juror that believes, they think corporations are out to make money first and foremost above everything else, but their attitude towards it is relatively positive. They’re okay with it.
Then your next juror may respond, remember, how do you feel about it? The word feel means attitude, they say, “Well, that’s why I don’t trust corporations. They’ll do anything to protect their profits. I don’t trust them.” Aha. Lack of trust, emotion. That juror is now a risky juror.
Here’s the key. They both raise their hand to the first question, which was the belief system.
[13:21] Bill
Okay? So again, when you’re outlining your voir dire, start with the belief system and then follow up with the attitude questions.
All right, beliefs are how you think, which isn’t, as I just explained, it’s not a deal breaker. How someone thinks, how they feel is what’s going to drive decision-making. Okay? And you can do this with any belief, any one of them. Profits over safety, right? All that stuff. And separate those two things out.
Okay, here’s another example. This is oftentimes where defense counsel gets, they get burned because they don’t dig. They don’t dig. They take the first answer, and they run with it when they have to ask the right follow-up questions.
Okay. So, for example, if you asked a juror, right, do you believe in personal responsibility? That juror says, “Yes, I do.” Well, right there, many defense attorneys are like, “All right, we’ve got a good juror here. I’m not going to ask any more questions. I’m going to protect that juror. They believe, they think personal responsibility is important.”
It’s a belief. But you got to dig deeper to understand how they feel about that.
[15:07] Bill
And then there’s the blind spot. There is the blind spot. Okay? Because attitudes ultimately drive the behavior and decision-making of juror, not the belief systems. Let me say that again. The attitudes will ultimately drive the juror’s decision-making, not the belief system.
Okay? Their emotions will shape how they interpret the evidence, whether or not they find witnesses to be credible.
Okay? So, you got to ask the attitude follow. So, for example, what if the defense in this case uses the personal responsibility of the plaintiff as one of their defense strategies? How would that make you feel? Would you be okay with that? Would that offend you? Or is that a legit defense?
That’s the gold, people. That’s the gold. That’s the follow-up question that often gets ignored. That’s the blind spot. Everybody’s afraid to ask those questions.
But this whole thing about, well, if I ask that question and they’re negative, it’s going to poison, it’s going to taint and poison the jury. That’s, that’s BS, come on.
[16:52] Bill
In fact, that’s what you want. That juror. So, now I’m going to tie it all together, right? So, belief question first, followed by attitude question. If you get a negative attitude, how they feel, it’s negative, A, that’s a really good thing because you’ve identified a risky juror.
The next question is, well, thank you, juror number five. Who else here feels similar to juror number five? Just raise your hand. Who’s on the same page as juror number five? And then three more hands go up.
You’ve just done some serious work there. That’s how you do it. But you see the chain of questions. It’s the follow-up questions where everybody fumbles the ball. You’re in the red zone. You’re in the red zone. And then you fumble the ball because you don’t know what follow-up questions to ask. And everybody’s scared about asking the questions that are going to identify negative feelings. Well, what do you think you’re there doing? You got to find the high-risk jurors.
So then find them, be super nice, and then say, “Who else feels like this?” And you get a couple more hands up.
[18:11] Bill
Well, juror number 12, you feel the same as juror number five. Explain to me why. Also build your cause challenge arguments, right?
Okay. So, as you’re writing your voir dire questions and things you want to tap into, outline it how I just described, right? So, that’s the formula. So, let’s kind of go over this, right?
If you want to, you always start with the belief. You always start with the belief. Don’t just jump to the attitude.
The belief questions should always start with the two following phrases. Do you think and do you believe? That’s how you start those questions. Do you think blah blah blah blah blah, and then put in the belief system you want to test, or do you believe that blah blah blah blah blah? Okay, that’s step one.
Step two, this is the attitude, right? How do you feel about blank blank blank? What is your emotional reaction when you hear blank blank blank? What emotions come up when you hear blank blank blank?
That’s the attitude. You’re tapping into the emotion. That’s what’s going to be the driver.
[19:44] Bill
So, you have to remember, this is the key. Many people may have the same belief, but then the underlying attitude could be vastly different. That’s where the gold’s at. So, you got to ask those questions.
Does that make sense? So, things we’re looking for, right, obviously any type of negative emotion, but things like in litigation, you look, I mean things like distrust, cynicism, resentment. And by the way, they’re not just going to tell you how they feel. They’re going to show you. So, you kind of got to be a little armchair psychologist. You’ll see changes in facial expression, body language, posture. Their tone is going to change.
You’ll know if somebody’s negative. But if you’re not asking the right follow-up questions, you’re never going to tap into that.
Okay. So, here’s, you know, here’s the issue. These jurors that may, many of these jurors that have the negative attitudes, they may not appear hostile. They may come across as polite, calm, even friendly.
[21:19] Bill
Okay? But you got to tap into the emotion. Do they feel negatively about it or do they feel relatively positive? Importantly, they may feel indifferent. They don’t give a [__] either way.
Okay. Now, if jurors get stuck and they have problems articulating, here’s the trick, right? They have a problem articulating their emotions. Make it easy. Give them a multiple choice.
So based on this belief system you said you believe in, and they’re having trouble, they’re having trouble, you know, describing how they feel, that’s fine. You say, “Do you have generally positive feelings? Do you have generally negative feelings? Or you kind of just don’t care either way? Like where in the spectrum do you fall?” And let them pick, because some jurors have difficulty expressing themselves. Some get nervous, right? That’s a barrier.
Some jurors just won’t shut the hell up. I mean, you’ll be like, “Okay, okay, juror number seven, I get it. You feel really negatively towards trucking companies. Okay, I understand.” Others, not so much. They may be nervous. They don’t like to talk in public. So, make life easy for them. Give them multiple choices, right? Make life easy for them.
[22:55] Bill
So final thoughts on this. Okay, here’s the outline again. All right. You want to see what jurors believe. What belief system do they have? Number one, that is not enough. That’s just step one. If you just ask about beliefs, you’re going to miss the gold, which is the emotion, the attitude, and that’s what really drives the decision-making, right?
So, what’s the next question? Well, the next question’s got to be, “How do you feel?” And you can ask that question several different ways. You ask them how do they feel about that. Leave it wide open. You got plenty of time. You may be rushed for time, and you want to give them that multiple choice.
Make it easy for the jurors. Make sure that you do those follow-ups that tap into the attitudes. And then here’s the kicker. You get somebody that’s really negative, don’t be scared of that. Embrace it. Say thank you. Thank—and you look at every, see, this is why I’m here, ladies and gentlemen. See, juror number three, just let it ride.
Thank you, juror number three. I appreciate your honesty and your openness. Thank you. Now, does anybody else here kind of agree with number three? You kind of, you’re kind of on the same negative wavelength here. A couple hands are going to go up. Look at what you just did. Look at all the time you just saved.
Why? You made people comfortable. You normalized the negative. It’s okay to be negative. And we’ve talked about this on the podcast. You tell them upfront, hey, it’s okay. There’s no consequence for expressing a negative opinion. Go ahead. Not going to look bad. You’re not going to get in trouble. It’s what you’re here for.
And get these folks to open up, be comfortable, right? That’s really, really important stuff.
All right. So, again, I have a paper coming out on this. But what I say, like so when attorneys send me voir dire scripts that, like I don’t see this distinct separation, they start mixing in the beliefs and attitudes into one question, gets really confusing for jurors, right? So, you want to separate it out, probably into two or three different questions.
And then when you strike gold, which is somebody that’s negative, because that’s what’s going to kill your case, that’s when you look at the others and go, “Hey, you know, thank you. Anybody else feel like this?” And you’re like from a, you know, if you’re building your cause challenges or you’re creating your peremptory strike list, right, this is what’s going to give you really, really good information. Really, really good information.
Okay. All right. That’s enough for today. Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky. We’ll see you next time.
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