In this episode of The Litigation Psychology Podcast, Bill Kanasky, Jr., Ph.D. discusses confirmation bias and its destructive impact on litigation decision-making. He explains that confirmation bias — when attorneys or claims professionals interpret case facts in ways that support their preexisting beliefs — is one of the most dangerous cognitive traps in civil litigation. Plaintiff attorneys have recognized this risk in their own thinking and combat it through early and consistent jury research, conducting multiple focus groups throughout case development to uncover blind spots and test themes.

 

Bill contrasts this with defense teams that often rely on gut feelings, hunches, or prior cases rather than data from the case at hand. Using a real fatality case example, he illustrates how an insurance company’s refusal to fund jury research, despite facing a potential $25 million exposure, left the defense flying blind while the plaintiff likely had extensive data on juror perceptions, themes, and damages. This imbalance, he argues, fuels nuclear verdicts and demonstrates why relying on instinct instead of evidence is so costly.

 

To counter confirmation bias, Bill advocates for early, cost-effective jury research, even pre-suit. He emphasizes that small, exploratory focus groups can act as pilot studies that guide case strategy, discovery, witness preparation, and expert planning long before trial. By investing early in data-driven insights, defense teams can make more informed settlement decisions, reduce uncertainty, and prevent disastrous verdicts.

 

Full Episode Transcript

 

[00:16] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. This is Dr. Bill Kanasky. Man, it’s early. I’m out in Arizona, so like wake up time for me out here is like 2:30. There’s nothing to do. I got a Keurig coffee maker in my room, thankfully. Otherwise, I’d be so screwed. No coffee downstairs yet. So, I figured I’d uh crank out a little podcast action for you. You know, we are approaching 300 episodes really fast. I’m going on, boy, almost six years of this. I like it. It’s fun. And plenty of you contact me about the podcast with comments or questions. I think it’s been a good a good way to communicate with everybody.

I have a speech today. I have a speech today and I thought I’d go through some of these slides with you guys and show kind of well I don’t have the camera on today because again it’s crazy early. Uh I look horrible and quite frankly the the background here at the Hilton Garden Inn is not is not very nice. So, I’m going to spare you the uh the visual today. We’re just going to keep this—we’re just going to keep this one audio only. Um so I am giving a talk for 2 hours to um an insurance company and um they appear to uh align with our philosophy of uh early intervention being proactive.

And so, I did a zoom talk for them for about an hour with some of the key people and now I’m here in person. I’m going for two hours. Uh so get to take a deep dive. Half of this talk is going to be on uh witness performance and the second half is going to be on jury research.

[02:43] Bill Uh during this podcast, let’s focus a little bit on the jury research and kind of what’s going on and what I’m going to tell these people cuz I mean everything has really changed and we’ve talked about this a little bit. Um, you know, I go back to my my favorite slide in this deck is the Kenny Rogers slide. Remember Kenny? He had like one good song. No, he had many good songs. But the most famous song, right? The Gambler. You got to know when to hold them. You got to know when to fold them. You got to know when to walk away. And you got to know when to run. And I cannot think of a better set of lyrics that match uh civil litigation, right? This is this is what it’s it’s all about.

And so, you know, the side that has the best cards obviously has an advantage, but also the side that, you know, that knows the game, that knows, you know, what their cards are really worth. Now, it’d be nice if the dealer just, you know, dealt you four aces. That’d be nice. Pretty easy gamble there, right? But, you know, sometimes you have two pair or three of a kind and you don’t know if your adversary has a full house cuz that’s going to beat that. Or you may have three of a kind, which seems phenomenal, right? Seems just—it just seems perfect, but then boom, you get beat, right? So, um you got to know the game. You got to know what your cards are worth. And um I mean, imagine going to Vegas and playing in a poker tournament and you were kind of betting blindly, right? That—that’s—that’s not going to be a good idea.

[04:58] Bill So, let’s—I tell you what, let’s do this. I’m going to show you a couple video—well, I’m not going to show you anything, I’ll play the audio. Couple videos from a um plaintiff-oriented podcast and uh some brief quotes here on—on how they think about uh jury research. Let’s—let’s start with the first one. I think this is—I think this is important that we could talk about it. Here we go.

“I mean, there are cases where young moms are just death. Um, it’s always the least, you know, you might think in a kid case, right? Gosh, you know, the young moms are going to be right on my side and—and then they’re all against you and you’re like, what? Or like with sexual harassment, the women are terrible on a jury. You—you don’t—if you have a female victim. Um, you know, just little things like that. But you only know those things if you do a bunch of focus groups and develop that pattern. That’s right. I mean, and—and until you do that, you don’t, you know, you just don’t know. Um and—and worse than that, you know, if you’re—if you have the tendencies like I do, um which I fight against constantly, you probably think you know. Yeah. But you don’t know, which is even more dangerous. Yeah. Um and so um you know that—that’s—that’s—that’s key. Um and so you know, every focus group you do on a case is good for identifying the people who are not going to respond favorably to your case. And why not start early? Um why not start on that uh from the very beginning.”

He’s describing something important here. So, we’re talking about jury research, but what he is talking about is what we’ve—Dr. Wood and I wrote a paper on this. Um I think it’s the most dangerous thing in civil litigation for both sides. What he is describing is confirmation bias. Your own brain. If you’re a defense attorney, if you’re an insurance claims specialist, or if you’re a plaintiff attorney, confirmation bias will ruin your decision-making. Ruin it.

[07:08] Bill Extraordinarily powerful. I see it every week. It’s so bad. Let’s go back to his quote. “You probably think you know, but you don’t know, which is even more dangerous.” And the female uh plaintiff attorney who’s the host on this particular podcast, you know, she said it. She’s like, you know, women on these types of cases can be terrible. But the issue is that’s not always the case. That may be your experience in the past, but on your case, in your venue, does that effect carry over? And you don’t know.

And we’ve seen this on various types of cases: med mal, trucking, construction, premises liability, where on one case certain types of people feel a certain way and then we have a similar case, different venue, and those same—very same people—feel differently for whatever reasons, right? So, confirmation bias um I think is probably the biggest struggle that I see uh in civil litigation and again it—it expands to everybody and the—and the—and the plaintiff attorneys know this. I’ve heard that on more than one of their podcasts. They are very well aware of the dangers of confirmation bias and—and that’s why they do so much jury research, right? They don’t want to get caught up in their own head because then you make—you make poor decisions.

[08:50] Bill So, I think that’s maybe where the plaintiff’s bar has a—an edge here is that they’ve figured out that they themselves are not very good assessors of their cases. Um, and their own brains can get in the way. Let’s—let’s go to another clip about this because I think—I think this is really important, you know. “So why do I—why do we focus group cases on intake? Um and—and—and the—the real reason to—that the—the summary reason on that is you don’t know what you don’t know.” You don’t know what you don’t know.

So, let’s fast forward. I’m working on this case right now and trial is one week from today. I’m not even going to tell you what state it’s in. Alls I’m going to tell you is that it’s truck versus motorcycle with a fatality. Okay? And I was called in to prep the driver for trial. So, I’ve had two full days with this guy and then we’ll probably hit it via Zoom again this weekend.

[10:08] Bill He’s doing really good. He’s an emotional mess. I think that’s the last thing that you know drivers—um I think drivers that get in any crash much less a fatality uh oftentimes they’re an emotional mess. So, I had to clean a lot of that up. Um, they sent me his videotape deposition from last year to prepare for these trial prep sessions and oh boy, oh man, it’s like five and a half, six hours. Um, like most witnesses, right? Started off doing all the right things and then you know you get an hour into this and got very emotional, got very annoyed, got very frustrated, really had an emotional uh—not a sadness emotional breakdown, but really annoyed. Had a really aggressive um questioner. The plaintiff attorney was uh—uh I was getting annoyed uh listening uh and watching um the video and this—this witness ended up kind of falling for a lot of stuff and ended up uh losing his cool.

I don’t think uh much of that video is going to help us at trial. So, um hopefully much of that won’t come in. Um, but—but I—I’ve—I’ve put this—I’ve put this guy through—through a lot of training and uh I think he’s going to perform very well at trial. Um, was able to fix a lot of those emotional issues which got a lot of things uh back into place. Went over the videotape with him like game film and broke it down frame by frame and he was like kicking himself. I’m like, “Hey, yeah, it’s okay. You know, your first time through this.” But now he’s going to be ready for trial.

[12:06] Bill But here—here’s the—here’s the bigger problem. So, I’m—I’m with—I’m with the attorneys and uh talking to them during the lunch break during—during the witness prep and I asked them, I’m like, “So, you know, what’s going on with the case, settlement discussion, stuff like that.” And uh apparently the guy that died has five children. And they said that the plaintiff attorney is going to ask for $5 million per kid. 5 times 5 is $25 million. That’s going to be the demand for the jury.

And you know, they’re the—plaintiff attorney right now wants like 5 to 7 million to settle and the insurance company won’t settle. So, trials next Monday. So, I—I asked, I said. So, uh and everything’s on video. We have you know dash cam video and things like that. Uh post-accident pictures which are really—really bad. I said, “Did—did you—did—did you do any jury research?” And the attorney said, “No. No, no. We—we wanted to, but the insurance company said they just—they just didn’t want to spend the money.”

[13:46] Bill So, they knowingly—they know. So, we have a fatality with five children. They know um that $25 million is going to be asked for. We have dash cam video of very bad pictures. We—we have a—we have a [__] deposition of our driver and we know nothing. Let me repeat that. Nothing. Zero about how jurors see this case. Nothing. Zero.

Now, let’s assume, let’s go back to jury research. Let’s assume the plaintiff attorney in this case at a minimal has done one basic focus group—just one. They would be miles ahead of us on theme development, on juror profiles for jury selection, what jurors understand, what they don’t understand—miles ahead. Now, we know this is probably not the case. It’s—it’s—it’s worse because what if they’ve done three jury projects? They did one very early in the case and then when discovery came in, they did some more and then maybe a month ago, a month before trial, they did another one.

[15:33] Bill They’ve refined their themes. They’ve gotten feedback on their witnesses because they showed clips of, you know, video clips from the depositions of their witness and our witness. They’ve tested various damages, models, anchors, and now they’ve accumulated three projects worth of data to develop a really solid juror profile for jury selection. Let’s assume they have that three projects. We have nothing.

Now, it was a monumental advantage for them to have one and us to have zero on jury research on a $25 million case. Now, let’s assume they’ve done three projects and we have nothing. What do you think the scoreboard looks like right now, folks? This is the—I deal with. Now, this is a new client, first time using us. See, our core clients at Courtroom Sciences don’t pull this—they know better. But what the—what’s going on here is confirmation bias. And it’s not the attorney’s fault because the attorney wants the data. They—they would like a fair fight here. And it’s not a fair fight right now.

[17:14] Bill So I, in this discussion during the witness prep at lunch, said why—like why—why would—why would you not want to spend the money on the jury research knowing it’s going to be a $25 million ask from the jury—and the response was they feel this is a no-brainer winnable case. They don’t think our guy did anything wrong. Now I want you to think about that. That—that is—that is confirmation bias 101 and extraordinarily risky and you’re wondering, God, why are nuclear verdicts happening? Geez, I wonder why. God, these jurors are crazy. Reptile theory. Oh my god. Uh, no, no, no. It’s—it’s stuff like this. It’s stuff like this.

So, how do—how do we avoid these messes? Okay. So again, you’re not going to do jury research on every case, but let me tell you the trend that’s forming thankfully and that I’ve been screaming at the top of my lungs from the, you know, for years now is that jury research is your friend. It can be done cost-effectively if you do it the right way and the earlier the better. And—and that—so for this particular case I’m talking about, this fatality case, they—ha—I mean from day one they had the dash cam, they had the statement from our driver, they had police body cam footage, they had all the pictures from the accident. All very, very testable immediately.

[19:25] Bill But now, I think this was in 2021. It’s four years later. Us, the defense, we know nothing, zero—scoreboard zero—about how jurors feel about this case, how they may apportion fault. And I think the plaintiff’s attorney knows a lot more. Remember, if they only did one project, they’re miles ahead. What if they did three? Right? So—so again, there’s like—there’s this gap here of knowledge, which is a—I think massive part in uh bad outcomes, high verdicts. It’s not a fair fight. If the other side has the scouting report and you don’t, that’s—that’s—that’s very difficult to win that game. Very, very difficult.

So how do you get around this? Well, number one, you got—you got to get your clients on board and they’re going to say, “Well, we don’t want to spend the money, blah blah. You know, you only do this stuff right before a trial.” Now these are all myths, right? So, what we’re doing now with our clients currently, I’m just going to give you the formula. This is what I’m going to talk about today. We do a lot of focus groups.

[21:07] Bill We now mostly do these very early in the case. Oftentimes—ready for this?—oftentimes pre-suit. Very early in the case before discovery. Now think about that. You start getting jury data before discovery. How does that impact your experts? I think that would have a pretty important impact. If your experts knew how jurors saw the case, what their hypotheses were, what dots they were connecting, right? How would that affect witness prep for deposition and how you prepare to question the plaintiff and the plaintiff’s expert, right?

So massive shift with our clients to doing the research, doing it early and to start building that database because we don’t know what’s going to happen in the end, right? So, if you do end up in the courtroom, you have a really nice database to profile jurors from for jury selection. This is again—I say this, I’m going to get in trouble for this. You do not need a jury consultant at jury selection. You don’t. I’m just—I’m just telling you right now. What are they going to do? You need the profile. You need the profile.

[22:57] Bill We are going to hire a jury consultant. “Come sit with me at the table and tell me who—who to pick and who to not.” Where—where they—where—where? They got a crystal ball? Got that magic eight? Remember the magic eight ball? If you’re a young attorney, you have no idea what I’m talking about. The magic eight ball. You shake it and it tells you—what—that’s kind of what you’re looking at going into jury selection blind.

So going into a trial next Monday, we have no juror profile, we have no earthly idea thematically what’s most effective. We have no idea how jurors see damages. We have no idea. We have no idea how jurors feel about these five children who are the plaintiffs. Nothing. Zero. Trial’s Monday. And you want to know why nuclear verdicts are escalating? That—that’s—that’s where we’re at.

[24:15] Bill Now, here’s what I’d prefer to see is if you had this jury data early, right? And you’re doing mostly focus group projects early on. Okay, now you get a picture of what’s going on, right? On liability, you have—you have a database showing you statistically, significantly where apportionment’s likely going to fall. You’ve got a really good idea—not pinpoint precision, but you have a really good idea on damages. So now you can go into mediation or settlement negotiation, and you have some—you have some well-informed decisions. You have some weaponry.

But I think what happened here is they went to mediation. As plaintiff attorney says, “I want 5 to 7 million” or whatever it is to settle this case. And our response was, “Well, no, it’s not worth that much. Here’s a million. Take it or leave it.” And—and where—like what’s—where’s that decision coming from? What—I mean, what—it’s confirmation bias. Somebody internally has looked at this case like a million others and said, “This is a good case for us. This case ain’t worth this. This is what it’s worth.”

[25:55] Bill On a fatality case with a very bad deposition of our driver and a dash cam video and really bad pictures and likely some pretty sympathetic children. Now, kind of let that all sink in. Like, I don’t—I don’t get it. I don’t understand. Now listen, you got a fender bender right on the corner of Elm and Maple? No, you don’t need to go—you don’t need to run three focus groups followed by a mock trial. No, you—you don’t need that, right?

You got a fatality and the dude is telling you, “I’m ask—I’m asking for $25 million, $5 million per child.” So now the question is, is this going to turn into a nuclear settlement? I don’t know. I just know it’s a risky case and we don’t have a lot of answers. And when you go back to those video clips, audio clips I just showed you, you don’t know what you don’t know. You don’t know what you don’t know. And I think this puts the defense attorney in a really bad position. And um I suppose we’ll see what happens.

[27:52] Bill But I guess my theme here—and why—and I—I apologize that I sound terrible. This—this—this time change is killing me. Uh and I’m—I’m drinking hotel room Keurig coffee. You know how that goes. Okay. This—this—this—this ain’t—this ain’t Starbucks, but you know how I feel about Starbucks. I—I’d kill for some Dunkin’ Donuts coffee right now. Good God. Wow.

So again, how—how do we—how do we stop messes? Well, it’s—it’s what it’s—what I’m doing today. I’m going to an insurance company to lay all this out going, “Why are we risking extraordinary amounts of money when we don’t have any data? Why are we making decisions based on hunches, gut feelings, and previous cases? Is it really—is it really worth it? Is it really worth it?” And uh again, this is a insurance company that we’ve worked—uh I’m actually doing some witnesses on some other cases. So, the witness stuff that sank in typically does. So, they’ve got it on that front, which is super important.

[29:22] Bill But I’m going to try to get them over the hump here on the jury research so they can start evaluating these cases more accurately, making better decisions. Right? That’s what I’m going to try to do. That is what I’m going to try to do. Um, all right. I think that’s all today. I need—I’m—I—like I am in desperate need for coffee, but yeah, I know I kind of sound a little down in the dumps. I’m not. Uh, I’m just—I’m just tired. It was a—it’s like a 5-hour flight from Orlando out here yesterday. Um, so I’m a little bit—a little bit tired.

But it’s 2025 and it’s like, you know, the decision-making in litigation still—still to this day baffles me. Right. And then on the other end of it on the—so here’s the other end of this is you know similar type of case and then I have either an insurance company or an attorney calling me 30 days before trial wanting to throw together a mock trial to test the case. Okay. Um, again, better late than never, but you know, that’s—that’s pretty tough because you’re throwing everything together last minute. Anything thrown together last minute typically lacks in quality. It can affect the validity and the reliability of the results.

[31:04] Bill There’s typically a lot of error, particularly in mock trials. Mock trials done in a silo full of error. Very few people know this. We want to do a mock trial— lot of error. Why? Because you haven’t sifted through all the mistakes you’re going to make. See, that’s what the focus groups are for. Those early focus groups in particular. So, if you want to do a really, really good mock trial, do a smaller focus group first, right? And get through all the noise. Figure out where jurors aren’t understanding things, where are the misconceptions, where are they getting emotional, right? How are all these, you know, videos or pictures? How—you know, and just do some exploratory things. So, you kind of figure out where people are at.

Once you figure that out, then the design of your mock trial is going to be really good and you’re going to get rid of a lot of error because you kind of did a little pilot study, right? Like look for—look in medicine or technology, a lot of research in both of those fields. How does all the research start? Pilot studies, small pilot studies. Why? You got to start someplace and kind of figure out what’s going on. And then from the pilot studies, they design more advanced research projects. And they really need those to be accurate because they’re really expensive. And it’s the same thing here. I mean, do you really want to do a mock trial that costs 60, 70, 80, 90, $100,000 and then figure out at the end of it? Wow, we have a lot of error in this data. Jurors didn’t understand anything. Yikes. That’s not a very good investment.

[33:12] Bill Okay. So, I guess the theme here and what I’m going to talk about today during the speech, um, there’s a better way. There’s a better way. Number one. Number two, it’s really not expensive. Cost is always the number one objection here. There’s a way to do this the right way, particularly early that will not break the bank and give your defense teams and your claims people the right answers—and the right answers early. They make really good decisions, right?

Because you may figure out, God, this can be a $25 million case. Gee, we may take a different posture at mediation or settlement negotiations knowing that—or the results come back differently. The results come back and confirms your original hypothesis. Tells you, hey, this is a good case and then you change your posture, right, for settlement and mediation based on data-driven decision-making.

Folks, folks, listen, you got to know when to hold them. You got to know when to fold them. You got to know what—you got to know when to walk away. And most importantly, you really got to know when to run. Litigation Psychology Podcast. Thank you. See you next time.

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