Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. tackle more viewer and listener questions:
- When is the right time to conduct a focus group—should I wait until discovery is complete?
- Can I test my opening statement in front of staff members or family?
- Why is it important to test opening statements with mock jurors?
- Should a consultant or moderator sit inside the jury deliberation room during a mock trial?
- What are the most common trial mistakes defense attorneys make in opening statements, voir dire, and cross-examination?
Full Episode Transcript
[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky, Dr. Steve Wood. Dr. Wood, happy holidays.
[00:24] Steve Yes, happy holidays to you.
[00:26] Bill It’s the holiday. Um, I guess we’re just calling this the holiday episode, right?
[00:31] Steve Yep.
[00:32] Bill Let’s clump them all into one so nobody gets mad at us.
[00:34] Steve Exactly. Yep. It’s just happy holidays to everyone.
[00:37] Bill Why do they call them happy holidays? Are you happy during the holiday? I find it to be extraordinarily stressful myself.
[00:46] Steve Yeah. Happyish holidays.
[00:48] Bill Yeah. Yeah. It’s really stressful and it’s it’s a lot of it’s just completely um unnecessary, too. The shopping, right? It’s a mad house. Go to go to your local, go to your local mall.
But I tell you what, you know, one thing, you know, I love my Amazon. That takes away a lot of the stress, Steve.
[01:10] Steve Yeah. No, 100%. The the less I have to go out and fight with the crowds, the better.
[01:17] Bill I remember the good old days, like back in the day, like before all this Amazon stuff. Do you ever go out on uh like at 4:00 in the morning on Black Friday?
[01:25] Steve I did.
[01:25] Bill I did. I did that twice. It absolute in pure insanity. Pure insan—people like killing each other over, you know, a $200 flat screen TV or it’s just I’ I’ve seen—
Describe the social psychology behind uh—So, what happens is, right, so the store announces, “All right, we got these crazy crazy deals now. We’re going to open up the doors at 4 a.m.” And Steve, this turns into like a little mini riot outside the store for the hour before. People are camping out. It’s nuts.
[01:57] Steve Yeah. No, it’s the whole idea of scarcity, right? So, you have these great deals that only come once a year and you’re afraid that someone else is going to get it.
I will I will tell you, funny enough, in another life, I actually worked at a large retail store, electronic store, uh, who shall remain nameless on Black Friday.
[02:18] Bill Circuit City or Radio Shack. I miss me some Circus City, dude. They had cool stuff.
[02:24] Steve Yeah. Yeah.
[02:24] Bill So did Radio Shack. I asked if you go ask one of my kids. Ever heard of Radio Shack or Circus City? They’re going to be like, “Huh?” We’re getting, we’re getting old.
[02:35] Steve Yeah, we are. We just aged ourselves.
[02:37] Bill Yeah. So, for the holiday edition, I’m going right back to viewer mail, which by the way, talk a little bit. We’re going to do some housekeeping here before we get into viewer mail like we always do. Um, tell you and I talked yesterday. Um, talk about the statistics, right? So, uh, in 2023, our podcast YouTube channel, I believe, had 423 subscribers. And what is it today? Two, do I see three calendar years later?
[03:05] Steve Oh, yes. 16.5, I believe. Right.
[03:08] Bill 16.5. Yeah. That’s I’m no statistician, but that’s a big that’s a that’s a that’s a that’s a big uh—We got fans.
[03:16] Steve Yeah. No, I and I appreciate everybody who’s reached out and talks about the podcast, says all the things good things about the podcast.
[03:26] Bill Every week. Yeah. Every week. I I did I did have one guy. I had to I had to block him.
There’s always going to be a haters. If you’re doing something well, you’re going you’re going to have haters. You’re going to have haters. So, uh he wrote me a little nasty Gram. I just had to say, you know, take your medication. I don’t think he was on his meds. Kind of lost his mind. But all the other feedback’s been positive.
[03:49] Steve Yeah. Right.
[03:50] Bill All right. Can I go have my two rants before we get into view mail?
[03:52] Steve Let’s, let’s do it.
[03:53] Bill Okay. The first one you absolutely witnessed. Okay. And I know it’s a friendly thing, right? But it’s the—Okay. So, we were out at a restaurant had a had a group dinner. Uh the waiter, what do you think the waiter was? I think he was like 23, 24ish.
[04:09] Steve Yeah. Yeah. He was younger.
[04:10] Bill That gen—So, he he walks, now, he doesn’t do this to the women. He only does to the guys, right? So, he walks up to you to take your order, right? And he goes, “Hey, boss.” So, he calls you boss, right? Hey, pretty respectful, right? And he goes and takes your order. He’s extraordinarily friendly, right? Very, very friendly. But he calls you boss, right? But then he looks at me and he calls me chief. He goes like, “Hey, chief. How you doing? What can I get for you, chief?” So, you’re boss and I’m chief, right? But then in a slight breach of etiquette perhaps then he gets Mansoor’s order and he calls him boss man. So, like everybody like all the guys and there wasn’t many guys right like there’s these so boss, chief, boss man. Are you just out of curio—are you are you like would you would you prefer the the boss man label? Are you okay with boss or would chief be more appropriate? Like like which of those do you prefer? What’s your preference?
[05:08] Steve You know, we we talked about this when we met. I never really put much thought into whether it bothered me or didn’t bother me, but I’m kind of like I don’t know how to feel about this. I mean, I get where he was coming from to try to do it to be nice, but I guess I’ve never really thought about it. But at the same time, it is kind of strange. I don’t know if I I don’t know if I really have a a choice over any of them. They all just—
[05:32] Bill Yeah, I get where he’s trying to be friendly, but I was I was just listening to the—And he he changed it up like he didn’t call you boss and then said me boss and then—No, it was like he had this script.
[05:42] Steve Yeah.
[05:43] Bill So, I don’t know if I’m ranting about that. I find it interesting. I wasn’t sure, but all the women at the tables like, “And what can I get you?” Right. There was no like queen or like there was no like there was no nicknames. It was just for the for the guys. I found that kind of to be to be kind of interesting. And he’s one of those Gen Z guys, right?
[06:02] Steve Yeah.
[06:03] Bill Under 30, which we may even talk about that at the end of this podcast just to kind of tease a little bit something that that we’re working on.
So I—So I guess that’s my first story. The second story, okay, so this this is a rant and this is uh you and I have written two papers on operant conditioning, right? I mean this is BF Skinner behaviorism 101. So, as you know, I had a um I had the horrendous experience of flying American Airlines this week, and you know, I don’t like flying American Airlines. I think they are the—What’s your opinion of American?
[06:39] Steve Uh they they would be towards the bottom of the bottom.
[06:42] Bill Yes. Definitely. I mean, we’re not talking Frontier or Spirit, but maybe one step above that, right? Like they’re not too far above Allegiant in my book, in my experience. Now what they’ve done now one thing now you’ve had rants you’ve had you’ve had your share of rants on this podcast and personally one of your rants has persistently been when you’re flying United right when they call like boarding group two and somebody from boarding group six like tries to board right that does that not make you crazy?
[07:13] Steve Yes, it does.
[07:15] Bill It’s and I can’t tell whether it’s just a pure lack of awareness or is this something pre-planned what’s your hypothesis on that. You think they’re trying to sneak in?
[07:25] Steve I mean, I’m a cynical like that that I’d like to think that it was an accident, but I also, you and I have spent enough time in airports and spent enough time around people to know that a lot of times it’s a little bit more of a selfishness, uh, that it’s all about them, entitlement.
[07:39] Bill Yes, entitlement. Right. So, um, now typically what happens, right, on these airlines, if that happens, they scan your pass and then they’re kind of in a very friendly like, “Oh, I’m sorry. We’re boarding group two. You’re in group six. So, if you stand over there when we call your number and they hand they’ve handled it fairly nicely over the years. Not American Airlines. The American Airlines has put in the operant conditioning system. So, they scan your boarding pass and if it’s in the wrong group, bells and whistles and buzzers go off and they like publicly shame you in front of the whole the whole the whole gate. Have you seen this yet?
[08:19] Steve I have not. But I have to say I kind of like it though.
[08:24] Bill It’s incredible. So, I’m in group five. There’s 10 groups. I’m in group five. The reason I’m in group five is because I never fly this airline. So, I’m in group five, right? And so they call and so like people start to get on. So, two people in front of me, this young lady, they scan, she scans her pass, bells whistle. I thought it was like a security breach, right? like it was like TSA or something like that. And they start yelling at her like, “You’re not in group.” Yeah, we’re born in group five. You’re not in group five. And Steve, she’s in group eight. This tells me this is no accident, right? This dog won’t stop. This tells me this is no accident, right? Cuz listen, if she’s in group six and maybe she misheard the hey, now boarding group five, like you’re one off, right? You’re one off. Or if they called group three and you’re in group four, I could see that as a legitimate mistake. Steve, if you’re in group eight and they call group five and you try to board, I don’t you think either epic lack of awareness or they’re they’re they’re trying to sneak sneak on. They’re not it’s a complete disrespect for the the boarding process. What do you think?
[09:41] Steve No, I—Yeah, I think it’s probably more of a a sneak on because either a you don’t assume they’re going to catch you or if they do catch you, they’re just going to let you go.
[09:52] Bill Then then this person So I get on, I sit down. She’s sitting across from me. Her bag doesn’t fit in the overhead. Steve, she puts it up there, pushes it in. It’s sticking out by 4 inches. This door, that the door’s not shutting. I know it. Everybody knows it. And what does she do? She just leaves it there and sits down. So, this poor flight attendant, this dude comes over, looks at the bag and kind of looks around like, you know, whose bag is this? And she’s got the earbud. She’s completely oblivious. So, this guy’s got to like, you know, turn into like a luggage Houdini to try to get this thing. And it took him like 10 minutes to get the bag in. So that’s two that’s two fouls on the same person. And I’m just—It kind of makes me nuts.
[10:37] Steve Yeah. Well, at least it wasn’t the third foul, which I find also offensive, is the put your backpack underneath your seat to allow for overhead bin space for the luggage. How many people do you see throw their backpack?
[10:49] Bill They throw the backpack right up front and then you can’t I can’t get my bag in. I had a lady yell at me cuz I moved her bag. She’s like, “Don’t touch my bag.” I go, well, I go, “This bag should not be up here. This should go under your seat.” And she’s like, and she’s like 70 and she’s screaming it like screaming at the top of her lungs, “Don’t touch my bag.” And I’m like, Jesus Christ, what the god damn. I mean, oh god.
[11:15] Steve Well, I will say uh airports do make people nervous and people get nuts on airplanes.
[11:18] Bill Then let’s tile this together. Holiday travel bad combo, right, Steve?
[11:24] Steve Yeah, the worst.
[11:25] Bill It’s the absolute worst. Do not do it. Do not do it. Stay home or you you’re make yourself nuts. It triples. It triples the stress, right?
[11:37] Steve Yep.
[11:38] Bill All right. Is that enough ranting for the day?
[11:41] Steve That’s enough. That’s enough ranting for the day.
[11:43] Bill Yeah. Okay. I may have one more for you at the end. I got—It’s holiday season. I got to get this out of my system, so I don’t take it out of my poor family. I’d rather do it on the podcast, right? I I get caught between Grinch and Scrooge. I get I get I prefer the Scrooge title personally. I don’t like Grinch. Scrooge. I like the Scrooge title.
[11:59] Steve I could see that.
[12:01] Bill I’m very good on this. All right. Viewer mail, I’ve got a list. Do do you have any qu—I’ve been accumulating questions over here last couple weeks because I’ve done a lot of speeches. Last week I did four speeches in four days. Almost lost my voice. Um do you want me to get started on here?
[12:20] Steve Yeah, go ahead. I know we already kind of talked about some of these. I’m sure we’ll cover them. If we don’t, I’ll bring them up.
[12:24] Bill Yeah. And there’s some new ones may come. Okay. So, we had I had a qu—this is an audience question that came up uh last week during my speech because I was talking about focus groups, the use of focus groups and the value of doing focus groups very early in the case just like guess who? Oh, the plaintiff’s bar. The ones that have figured all this out. Okay. And sometimes they’re even doing them pre-suit. We know this, right, Steve? Okay. So, he raises his hand and says, “How in the world?” Like he was kind of he had a little attitude. He goes, “How in the world can I do a focus group on my case if discovery is not even finished?” Like, I don’t have my expert reports. I don’t have this. I don’t have that. What would you tell an attorney that said, “I can’t do a focus group. I can’t do it now. I got to wait six months because I need all this stuff. I need the experts to testify, then I’ll do the focus group.” Talk about the cons to that.
[13:16] Steve Well, I mean what the first the first con to the whole thing is just is that discovery is not closed yet, which actually means it’s a perfect time to do it because you know, you and I had talked about what happens when even if you do the focus group or you do the mock trial and then discovery is closed and then you find out from the jurors that they say, you know what, it would been really great if you would have had X, Y, and Z. Yes. Then you have to say, well, that’s nice, but that ship has sailed. So, I mean I think one of the first things is it’s perfect time to do it when discovery hasn’t been closed because it helps to shape discovery because then you know what you need to be looking for.
[13:48] Bill Absolutely. Absolutely. And and what we find on these early focus groups and by the way we do these like two to four hour segments right Steve? You have plenty before, in fact before discovery starts you have plenty right and what we have learned is I think a couple things. Number one, you’re going to because I think the number one problem in all of this mess is very simple, which does not get enough respect. It’s this very basic juror comprehension of things. Yeah. There’s this assumption that I’m going to lay the stuff out there and they’re going to get it and then I can start arguing. They don’t get a lot of the the basics. Knowing kind of where they’re getting confused, right? Where are they connecting dots that they shouldn’t? Where are they misperceiving things? You could that’s very very important. And some people don’t even don’t even understand that. And so just testing the basics is really really important. And then secondly, which is the the shocker because we hear this after every single project because you always learn something new, right? There’s always some hidden vulnerability that you had no earthly idea of.
[14:58] Steve Yeah.
[14:59] Bill Right. And it’s typically something basic. It’s not something that you need an expert for. Right. It’s something that’s a kind of a factual part of the case. It could be something in a photograph, something from uh dash cam video, something from, you know, police body cam video, surveillance, you all these trip and falls, right? All these trip and falls and uh premises liability case. What what percent of what percentage of them, Steve, are on video these days?
[15:23] Steve A lot. Almost all of them, right?
[15:25] Bill So, just having that video, you could easily focus group that and start breaking it down, pausing it. You’re going to get a lot of questions, a lot of concerns. And so, yeah, by doing the research early, right? Remember, it’s a step-wise procedure. It’s not one time point is by doing it early and before and during discovery, it can help you guide your discovery in the right direction. Because what you’re saying is if you just let discovery play out and then you go test things, what if it’s all bad and now what do you have?
[15:55] Steve Yeah. And I think the other thing you we always talk about too about experts and not having your expert reports and that—They know, the defense knows what the plaintiff’s experts are likely going to say and we know what our experts are likely going to say. So, do we really need to have the official testimony or can you actually bullet point out what you expect them to say? I mean, you can still do that without having the experts.
[16:17] Bill It’s it’s it’s it’s pretty easy, right? So, I think we know that um jury research is is is a good thing. Number two, it’s it’s best when it’s done early and it’s best when it’s done in a step-wise fashion because A) that’s scientific method 101. B) that’s exactly I mean I’ve you know I listen to some of the very well done plaintiff podcasts, Steve, as do you. This is what they do.
[16:42] Steve Yeah.
[16:43] Bill They test early, they test often and so what happens is they get on the right track before the defense does. And that gap, that’s a significant gap. And there’s no reason why the defense can’t do the same thing and get on the right track early as well. It’s just a kind of a change in philosophy, right? Because most people think, well, the only thing that you do in jury research is a mock trial. How? But here’s another question, Steve. How many clients this year, right? So, we’re at the end of the year, have done a focus group and beforehand told you they have never done a focus group. They have only done mock trials?
[17:23] Steve A lot. I’d say about 80%.
[17:25] Bill 80%. So, and and they’ve always done them later in the case like more as a trial prep tool when it’s actually really it’s a discovery mediation resolution tool, right? You can still do all that. You still do a mock trial when the time’s right, if necessary, but upfront ton of stuff you can do to learn about your case. So, answer that question.
[17:48] Steve And I will plug that you had a episode a few episodes ago where you went through all that I think which I thought was a really good episode that I would encourage anyone who hasn’t listened to it to go back and listen to it where you lay out all that uh in a lot longer 30 minute podcast.
[18:02] Bill Yes. Well, thank you so much. You should put a comment on the uh on the in the comment section.
[18:07] Steve I’ll make sure to do that.
[18:09] Bill Yeah. As a co-host, put a comment on there. That’d be interesting. Okay. Um second question that came up which I thought was kind of funny. I kind of laughed out loud when I heard this, which did not go over well.
[18:19] Steve Yeah.
[18:20] Bill You ever get a question, you kind of, you know, do one of those and it’s like, oh boy, they were actually serious. Uh, we’re talking about, uh, testing opening statements, right? Talk about how important the opening statement is, how much you need to be practicing, right? And we’ve talked all kinds of things about opening statements because there’s like a million ways to screw them up. And there’s certain parameters that you and I, you know, consult on that are really important and really scientifically proven. And you can make a lot of mistakes in opening, but the vast majority of them are completely preventable. But the question was, is it okay to test my opening in front of my admin, my admin staff at the law firm and or family members? What’s your thoughts on testing the opening statement in front of admin staff members at the law firm and or family members?
[19:07] Steve Uh, I’ll I’ll put this nicely. Uh, I mean, I think it’s a good start. Let’s put it that way. You can get to the kind of what does this make sense? But would I hang my hat on what my office staff or family members said as far as that’s a great opening? No, I would not.
[19:26] Bill Yeah.
[19:27] Steve Because what are they going—unless it’s like I guess maybe if you’re it’s your wife or your spouse that says it sucks, but outside of that—
[19:33] Bill You probably get further with your spouse— because I I I don’t think Janet the legal secretary is going to be like, you know, Joe, that that was a terrible opening. Boy, your slides are terrible. Your timeline is way out of whack. I mean, I I don’t know if she’s going to do that.
[19:47] Steve No. Right. No. I mean, that’s social social desirability bias 101 is we’re going to tell you what you want to hear versus telling you the truth because you don’t want to hear it.
[19:59] Bill Exactly. Now, see, you and I are different. Like, when I write a paper, I send it to you and you just rip it to shreds and I’m okay with that. That’s fine. But that’s because we’re kind of on the same level. But if I send a paper to one of our admin staff, they’re going to be like, “Oh, this is great.” Right? “Dr. Kanasky this is the best thing…” So, like yeah you have to really be careful with that so what we have done again exactly what plaintiff attorneys are doing and it’s a really good job we’ve we’ve created um kind of for lack of a better term like mini focus groups like a focus group just to test the opening with mock jurors from the venue a lot of value there because number one you’re going to get objective feedback right no one no one on that focus group has a dog in the fight uh they’re not there to blow smoke and we pretty much tell them beforehand like listen we’re going to pay you for a couple hours here uh we want your brutal honesty we want on the delivery the tone the length you know where the how long right uh or how many um um visuals were shown too much too little where the were the—I think one of the keys here Steve is really— and this is why I don’t think the staff would give you even your family right because they’re not you know them it’s too you need the objective feedback but I think a lot of the visual aids that are used in opening and just in trial in general are way too complex.
[21:17] Steve Yeah.
[21:18] Bill And go right over people’s heads. And if you don’t know that, like you think it’s great, like you think you have this great, oh yeah, come on in. It’s like I I got workers going during the podcast. Um you think you’re you think that your timeline, right, is is great and it’s understandable, but no one really understands it or it’s too busy or, you know, things like that. Um, if you don’t know that and then you just take that to trial or or you you do your opening in front of your admin staff and your and your your family and kids and they go, “Yeah, it’s wonderful.” You go to jurors, uh, you could really really um, miss the mark. So, by doing by testing the opening and just I mean really specifically the opening statement and then doing a focus group session after that to really talk with the jurors about all these questions, you really pinpoint again kind of those hidden vulnerabilities because there are some things that these jurors may not understand that you’ll just have no idea about. Maybe it’s just the whole storyline. Maybe you’re just kind of all over the place with your story. What are what are your thoughts on testing opening in front of mock jurors?
[22:25] Steve No, I think it’s extremely valuable because we know that the the the power of opening statements and how important opening statements are and how they set the lens for the the rest of the case. And if you confuse the jurors or you send the jurors down the wrong path, then you’re starting off, you know, you’re starting off a couple steps behind and now the jurors are trying to catch up and you may never get them back because they’re so completely confused and don’t see how all the case facts tie together. I mean, one of the things too that you and I talk to attorneys about a lot, and I want to get your thoughts on this, is how we want them to be more like 30-minute openings. And a lot of times you have attorneys that push back and say, “Well, I have 45 minutes of stuff. I have all this stuff I have to put in. If I cut it back to 30 minutes, I’m going to lose all the key points that I need to make with jurors.” How often do you see though that those key points that they have to load up actually end up being anything that jurors are actually even interested in?
[23:17] Bill Because they don’t remember. Remember that’s the dead zone of the opening, right? That’s the big— that’s one of the biggest problems with the opening is you have your dead zone and instead of— I call it you stay in the clouds, right? Remember you’re like you’re showing the expanded movie trailer of hey, here’s what’s coming. Let me show you some scenes and you’re teasing the jury, right? The problem is when you show everything in that dead zone, you get into— So now instead of being the clouds, you’re in the weeds. These jurors can’t follow along. So, somebody sent me an opening statement uh recently. And what I told them, I’m like, listen, like you want to like, for example, you’ve hired two experts, right? You want to tell the jury, hey, I’ve hired two experts. Here’s the first expert. Here’s who they are. Here’s their credentials. Where they’re from. They’re going to tell you A, B, and C. And I can’t wait to get them right here on this witness stand, and they’re going to tell you A, B, and C. Move. Next expert. My other expert, my causation expert, this person, you know, she’s from this university, has this much. She’s she’s gonna tell you X, Y, and Z. Done. Over. That’s all you need. So, the guy, so he sends me the slides and he’s got like seven slides per expert, you know, getting into the weeds, like the very nitty-gritty of all the things. That stuff just you know, number one, juror attention span. You just it’s just it’s too much, right? It’s too much. And then you’re going to get jurors lost. Uh they’re going to get confused. They’re probably going to get bored. And that’s where I think the plaintiff bars did a nice job. Plaintiff attorneys, they keep that story moving, right? Move, move, move, stick and move, stick and move, stick and move. And that’s what you want to do during an opening. The problem is cognitive dissonance and confirmation bias. You get into your own head and you’re like, “Wow, like I’ve got to get everything out in my opening because this is my big chance.” And your brain’s telling you one thing, but in reality there’s it’s impossible, Steve, to tell a cohesive, persuasive story in a 45-minute opening. You can’t do it. Even 30 is pushing it.
[25:28] Steve Yeah.
[25:29] Bill Like we say like the 20 to 30 minute window. You want to probably be leaning towards 20. Now there are some situations by the way we so we did one of these uh opening uh statement focus groups uh last week and what happened there— this is really important where you may need the more towards the 30 minutes right you have some cases that may have codefendants right so you’re going to have to talk about some extra things so say if it’s just plaintiff versus company A that’s two parties right you should be able to get that down in 20 minutes I don’t care what the cases. But—If it’s plaintiff versus company A, company B, company C, okay, you may need the 10 more minutes, right? And so, when you have something like that, it’s a little bit more complex. You may have to expand the opening, but you still really never want to go over the that that 30 minute mark. And what we found out, which is going to be no surprise to you, is jurors were confusing the defendants.
[26:25] Steve Yeah.
[26:26] Bill Okay. And here was the problem. and what and what the attorney was able to fix. This is the whole purpose of these mini focus groups for the opening. You’re going to find where you screwed up and you can fix it before you take it to the real courtroom. There was no visual aid, none on kind of like the who’s who, right? And remember, most jurors are uh visual learners, right? 30 years ago, a little bit different, but now most jurors are very strong visual learners. And there was no kind of uh chart like organizational chart of who these parties were. They just did it kind of verbally or they had a slide per but there was not one slide that had all the parties on it to show what their relationships were, right? Like contractor, subcontractor, subcontractor, customer, right? So, they were able to learn that, oh man, you know, the jurors are getting these parties mixed up. They were able to put together a slide to go to trial with that was a unified slide that had that all those relationships with which worked out much better. So that’s just an example of of you know something that you can find that could be devastating right to your case that otherwise you wouldn’t have known about. So, I I’m a big fan of the opening uh statement focus groups. And as part of that, we’ve encouraged uh because those pretty much take two hours. Uh we’ve encouraged like, hey, you know, if you have if you have some new voir dire topics you want to test, let’s test them. Ask some questions you don’t normally ask to kind of, you know, get a sense of uh you know, most attorneys. Um, I know one attorney that’s right here in Orlando, uh, who we work with. The dude is like he’s just he— So last year, not this year, last year he tried 18 cases to verdict in one year and this year he was pushing the same pace. That’s a guy that’s doing voir dire like every two to six weeks. He’s really, really good at it. Well, but if you look at the bell curve of defense attorneys, how many cases you taking to trial per year? One to three?
[28:34] Steve Yeah.
[28:36] Bill Right. So, this is an activity that you’re not doing very much. So, as part of those focus groups, you also practice your voir dire particularly if you have some new questions or we’ve given you new questions in our consulting practice. And um I think that’s a great way to practice questions. What do you think?
[28:54] Steve Yeah, I do. And I think cuz some of them are going to be, you know, you and I have written questions before that require a setup. The setup is the main part to the question.
[29:02] Bill The setup is the key. I just have another podcast on this. It’s like the whole thing’s the setup. It’s not the question. It’s the setup. Because if you just jump right to the question, what happens? It doesn’t hit. Doesn’t work.
[29:13] Steve No. And I think that’s part of the problem, you know, not part of the problem, but part of the things that you can work on is how the setup is because you have to have it right. And too many people, how many times have you and I seen it where they we give them the setup and they don’t hit it the way we want them to hit it or quite the right way. It’s just because it’s foreign and it causes them to say, “This is not what I’m used to. So therefore, I’m not as comfortable doing it.” So, I think that’s another thing too is to make sure they do it and to do it in their own voice because you and I could say it how we would say it.
It needs to sound natural versus let me read my script of okay, I need to set it up this way very meticulously and wrote.
[29:47] Bill So, I have this technique which I I’m not sure if this plaintiff attorney, by the way, because everybody knows I’m a Tik Tok freak addict. Uh, and I follow a lot. There’s a ton of plaintiff attorneys on Tik Tok, so they’re in my algorithm, right? And I saw one two days ago, and I don’t know if he stole it from me or maybe he’s just doing the same thing. So, I’m not I’m not going to blame him. Uh, because most of those Tik Toks are pretty pretty interesting and they share certain things. And this plaintiff attorney, and this is my technique, is he’s talking about the setup to voir dire. He’s like, “If I want to know how people feel about corporations, I don’t say, “How do you feel about corporations?”
[30:22] Steve Yeah.
[30:23] Bill So, here’s his setup, which is identical to mine. So, I fully endorse this, and the defense can use this just as plaintiff attorneys can use it, too. Is he describes various opinions of corporation and ties it to his family members. He’s like, you know, like let’s talk about attitudes towards corporations. Well, my wife, here’s how my wife feels about corp like she’s very pro corporations. She thinks it’s, you know, they’re it’s key to capitalism. You know, they create jobs. Like, it’s a good thing. You know, she worked at a major corporation. Her family worked at a m—like she’s very positive, right? But then like my brother, my my brother’s just, you know, my brother’s out in left field. My brother is very anti-corporation. He thinks they put profits over safety, profits over people. He thinks it’s greed, greed, greed, greed, greed. You know, and then my sister, my sister just doesn’t even care either way, right? So you ladies and gentlemen of the jury are you like which which one of those three people are you like right that’s a really really good setup and you can use that on most questions where essentially rather than just ask the hey how do you feel no one’s going to no one’s just going to be like yeah I’ll tell you right no one wants to talk but if you make it easy for them and you kind of humanize and normalize the process you’re like hey number one everybody has different opinions number two my family for example they have these different opinions let me share you like how my family feels and they’re all over the place and then number three you go like where are you right so you give them sort of a multiple choice of a bucket that they can pick versus um like Steve I mean how and you’ve seen voir dire how many times where an attorney asks this kind of like general open-ended question and everybody just sits there like no one wants to raise no one wants to raise their hand right a lot very often so the setup to any of these questions is key. It’s typically a three-part setup and I’ve done many podcasts on this topic, so we’re not going to spend all day doing that. What I am going to do is I’m going to check this off our question list. All right, you ready for the next question, Dr. Wood?
[32:25] Steve I’m ready.
[32:26] Bill Okay. Um, this happened to me. This happened to both of us recently. Um, don’t you need a—Okay, this is this is a mock trial question. So, you do your mock trial presentations and then you take your your say larger group of people. You divide them up into three groups and the three groups go off with their verdict form and their jury instructions and they deliberate, right? And you’re typically watching either through a two-way mirror or closed circuit TV depending if you’re using a hotel or a focus group facility. And I had this experience, I think you had too, where uh we divided them up and the jurors started deliberating and the attorney’s like, “Well, aren’t aren’t you gonna go in there and sit with them?” And I’m like, “No, no.” And he goes, “Why not?” I go, “Because that’s not how jury’s del—like the bailiff’s not in there going, you know, watching over him.” I’m like, “What do you—No, no, no. I’m going to sit here and listen to them with you because I want this to be like I don’t want to be sitting there breathing.” But tell tell tell our audience about your experience and what we have heard again competitors other companies which which is fine. I guess everybody does this a little bit different but uh the sending the jury consultant in during the deliberations and like sitting there monitoring them. Talk a little bit about that.
[33:45] Steve Yeah.
[33:46] Bill About why we don’t do that.
[33:48] Steve Why why we don’t do it is I mean first and foremost you have an observer effect meaning that they know that someone’s sitting there listening to them. Duh. So, they’re going to talk, act a little bit different just because they know someone’s sitting there. And I think one of the nice things when we do it and no one’s in there, if issues come up, you know, I might, you might pop in there and they’re like, “How did you know?” And then I’m like, “Cuz there’s cameras there.” And they always, “Oh, that’s right. There’s there’s cameras.” So, so they’re—
[34:14] Bill So, I get a comment like, “Well, if the camera’s in there, isn’t that the same as an observer effect?” And I go, “No, because that camera, they’ve been looking at that camera for eight hours. We’ve desensitized them. We have told them, “Yeah, you know, we videotape everything blah blah blah blah.” So, they’re kind of desensitized at that point, but um but yeah, talk a little bit more about how that’s really not a good from a behavior uh standpoint that it’s really not a good idea and how because this observer effect, in life much less deliberations, is a very very powerful social psychological effect.
[34:51] Steve Yeah. Once again, like I said, people are going to shape their behaviors and change their behaviors when they know people are watching them. It’s just like anytime that someone’s doing their job, and they know their boss is standing over their shoulder. They’re going to be, they’re going to be working harder, doing things, talking, acting a different way because they know their boss is over the shoulder. If they didn’t think their boss was there, they’re going to say, do act diff—potentially a little bit different.
[35:11] Bill They’re going to be uh they’re going to be uh holiday shopping on Amazon is what they’re going to be doing. Right?
[35:17] Steve Yeah. Uh and the other thing too I I’ve seen um in in my career is where some of the times they will have the the moderator will interject themselves into the deliberation process and sort of shape the deliberation process where maybe a juror is talking about something. They’re kind of going off on a tangent. They’re providing information and that moderator jumps in and says that’s great, but we need to move on move off of that. Well now what have you done? You’ve essentially shaped it to the way you want it and and you’ve moved that juror off and now you’ve also kind of queued up to that juror that whatever they have to say is not valid. So now that juror is thinking, well, gee, maybe I shouldn’t say as much because last time I kind of got my hand slapped, so I’m going to kind of tone it down to what I would normally say.
[36:02] Bill Yeah. And you’ve disrupted the flow and and you will most likely disrupt the uh it’s like the butterfly effect, right?
[36:11] Steve Yeah.
[36:12] Bill So, let’s talk about situations where I don’t think there’s any situation where a monitor should be in there under any circumstance. Zero. However, there are times that you or I or one of our staff members will go in to intervene. Now, let’s talk about where that’s appropriate. I see most appropriate when um and again, what’s our famous phrase, Steve? Nobody listens. So, like you read them the jury instructions, you go through the verdict form, you tell them about the skip patterns, right? And then they get to the second question and like they don’t follow the skip pattern or they go, you know what? I don’t like question one. Let’s just go to question five. Apportionment. It’s like then I go in there and go, “No, no, no, no, no. You got to follow the the pattern.” You agree with that?
[36:56] Steve Yeah. I think that’s one of the very few times that we ever go in there and interject ourselves to do it.
[37:03] Bill Or they go right to damages. It’s like, “No, no, no. You can’t you can’t do that.” Uh or maybe they typically like they may say something during the damages discussion that like if they’re way off, like way way off, right? Um you know, they’re they’re like you’ve you and I have seen this a bunch where um like you have to go and intervene like this happens all the time, unfortunately. uh there’ll be there’ll be a case there will not be punitive damages and so they’re on the compensatory damages question and someone says, “Oh, don’t forget we’ve we’ve got to add punitive damages.” Like that’s part of our job as jurors. But that was not part of the case. I’ve seen a lot of jurors um probably because of TV and stuff like that is there’s this assumption that all cases have punitive damages and like even though it’s not on the verdict form they kind of put it in there right and I think that’s another time to go in and to remind them oh by the way this is not a case with punitives— so I think there are times to go in to more get them get them back on track right or if they’re maybe deadlocked on something and you know it’s not going anywhere but to have an observer sitting in there the whole time. I just don’t think you’re going to get authentic discussion because you know dad dad’s watching you do your homework. Do you ever hear dad remember that I’m doing homework and he’s sitting there like this? I’m doing my math homework. I’m doing my algebra and I’m in seventh grade. I’m like can you like stop? He’s like, “I just want to make sure you’re doing it right.” I’m like I can’t do my homework if you’re leaning over me breathing down the back of my neck. Come on man.
[38:37] Steve Yep. No, like I said, as someone who’s seen it, lived it, that it’s not a good good way to do deliberations.
[38:45] Bill You’re right. Okay, last question, then we’re going to wrap this up on this holiday. Yes, I should call it the stressful holidays. Happy holidays. It should be stressful holidays, right? Because that’s what it is. It’s emotional stress. It’s financial stress, right? Making you nuts. Okay, last question. This is a this is going to be a longer one. And uh this this came up uh I did the speech last week and uh I thought this was a really good question because I was talking about you know I’ve been doing this almost 25 years and uh you know you and I have been in many courtrooms and we’ve seen how many mock trials and stuff like that and the question is pretty general like um because these are all defense attorneys that like what are the top two or three things you see that defense attorneys like where are they making the most common mistakes? Um, and again, this is not dog pile on defense attorneys. I think it’s important to look at mistakes, right? Because what you want to do is identify mistakes. Like, if you can’t take feedback and you’re a trial attorney, you’re not going to have a very good career. You don’t have a very good career. And we work with some really, really good defense attorneys. And oftentimes after mock trials, uh, or even real trials, I mean, they want us to give them some pretty critical feedback. They’re like, gloves off, like you tell me, right? Like I want the truth, right? And we’re like, you you can’t handle the truth. But but they want honesty, whereas some defense attorneys don’t even like to do mock trials because they don’t want the feedback because it’s going to be some narcissistic injury, right? But um I think feedback’s important. I think there’s some some areas here that we can identify. We’ve already identified the one I to me like what I see the most uh like regularly like almost week after week after week is is the whole opening statement issue with it being too long, too complex, too busy, not a really good storytelling model and the need to really simplify and A) learn how to tell a good story, B) learn how to tell a story in the right order. Every like a lot of people screw that up. And then C) like these visuals like you can’t do a opening statement with with with 62 slides. That’s not an opening statement. That’s a closing argument, right? Save that stuff. You want to tell the best story. You really want to connect. And also, if you have like too many visual exhibits in your opening those jurors, you’re not bonding with those jurors because what are they looking at? They’re looking at your damn slides.
[41:14] Steve Yeah.
[41:15] Bill So you want less slides. Use them when you need them. But you want a lot of like you know eye contact interaction with these people to really bond. So, um I think my vote I think the kind of the the most thing the thing I see the most of frequency wise would be uh all those things I just mentioned about opening statement. What would you add to the the list of areas of improvement or areas where you’re kind of seeing mistakes?
[41:35] Steve I think one of the other ones and you and I have had conversations uh on this before and kind of where the no one listens type mentality comes from uh and even the quote comes from is the idea about cross exam and spending too much time on your cross exam where you feel like you have to beat the witness to a bloody pulp. But after a while you you’ve proven your point and it’s it’s time to move on. yet. And we know because we’ve talked to attorneys, they get that adrenaline going and they’re and they’re in the mode and they’re like, “This feels good.” The problem is there’s a point where you could have stopped 15 questions ago and really hammered home the point.
[42:12] Bill Yeah. So, you have a couple problems here. Number one, um, if you there’s a balancing act in beating somebody up, right? Like there’s a reason why they stop these UFC fights, right? You punch a guy in the face three times on the ground. Okay, he’s done, right? You punch him 12 times. It’s even the crowd’s like seriously like you really had to do that. I mean so jurors don’t they don’t like that right? You can get your punches in, but you got to know when the you know shut up and walk away because you’ve gotten the job done. I think the other thing is just the whole concept and this happens in the this is what happens when the your opening goes too long. If you’re cross-examining or even direct exam when it goes to you have the whole concept of dilution.
[42:55] Steve Mhm.
[42:56] Bill Dilution meaning, you know, you you want to kind of build up to this peak, right? And then you want you want to have that, you know, did you order the code red? And they go, oh, by the way, remember the in the movie, did you order the code red? And Nicholson, you’re goddamn right I did. What did Tom Cruz do? Did he ask more questions?
[43:14] Steve No.
[43:15] Bill No. He looked at the judge like I like it’s over. When you ask your code red question, get the answer and go, thank you, ladies. Ladies and gentlemen, thank you very much. Sit down. Now, we had the unfortunate um again, we’re not going to mention names, uh trial that we consulted on in which this did not happen. We had a defense attorney cross-examining a plaintiff expert. Got to the code red question, got the yes, and why don’t you tell our audience what happened for the next 20 minutes—
[43:47] Steve They made a a very big mistake as far as how having the expert do something um and testify to something that actually backfired on us. And had they just left it alone, everything would have been fine. And and it became a really kind of a sticking point, right, going forward. And it was something that the jurors remembered. And they remembered the mistake that was made by us asking the question that we opened the door when we could have just left it alone as the yes to the code red question and been done with it.
[44:21] Bill Yeah. Because again, back to the movie, right? Imagine it, right? Tom Cruz like, “Did you order the code red?” Nicholson, you’re goddamn right I did. Imagine if Tom Cruz goes, “Okay, well, let’s talk a little bit more about Code Reds.”
[44:36] Steve Yeah.
[44:37] Bill No, no, no. And that’s what happened there. And then what ended up happening, if you remember, some bad questions were asked and the expert who was very savvy was able to kind of turn the tables, right? So, it ended on actually a more plaintiff friendly note, which is like the last thing you want, right?
[44:54] Steve Right. And it was on and in and the and let’s not bury the lead that it was on very key testimony for the case, right? That the expert was able to kind of turn it back around and and explain it’d be like Nicholson explain in a way the code red and providing more context on the code red to make the jurors go, “Okay, well, I could see why why they did the code red versus having the gotcha moment and then stopping.”
[45:15] Bill Yeah. Um, another thing I see, um, again, what I think is a big, uh, mistake, you know this all too well, is avoiding particularly your case weaknesses in voir dire.
[45:31] Steve Yeah.
[45:32] Bill Right. Thinking like, I don’t want to bring that up. It’s like, no, you better bring that up because otherwise you’re not going to get a good read, right? And so having being able to ask, you know, tough questions in voir dire that actually relate to the weaknesses in your case and getting authentic feedback on that’s going to tell you a lot about how juror you know jurors see your case, right? And so uh if you skip those— and I think I mean you’ve heard this before like well if I bring up something bad about my case, I’m going to poison the jury, right? I’m going to poison the well or break— I mean that’s not that’s not true.
[46:08] Steve No. And I think you want to you want to hear those negative comments because you want those jurors to if they’re going to embrace those, you’d rather have them do it during voir dire rather than learn about it later. So, you throw those things out there and your questions are identifying and elicit those jurors who are going to side against you versus the whole idea of let’s only focus on the people who are going to side with us.
[46:27] Bill Yeah. I had that famous story up in Wisconsin where we had uh some really terrible pictures, like bad pictures. I told the defense attorney, I go, “If you don’t show those pictures, we can’t get a fair jury.” He’s, “What are you talking about?” I go, “You got to show one of these pictures to get let these jurors know because I go, you can’t not unring that bell.” And if you don’t show that picture and the first time they’re seeing that picture is in plaintiff opening statement, I’m like, “We’re dead.” He goes, “I can’t show him the picture.” I go, “You you better do it.” So, he’s doing his voir dire. I’m sitting there right next to him. He’s asking his questions. He’s asking his questions. He hasn’t done it yet. And I’m just like tapping my fingers, right? And he he gets to this point where he’s like, “Okay, uh, ladies and gentlemen, um, have you heard anything so far today that may make you feel like you’re not like you’re not a really good? We’ve talked about some emotional pro, you know, uh, um, topics. You know, this is a case about, um, a child that died. Everybody okay, or just some of you kind of thinking, nah, this is not for me?” Nobody raised their hand, Steve. Nobody raised their hand. So he goes, “Your honor, one moment.” He comes to the table. He looks at me and I’m like, “Do it. Do it. Do it. Do it. Do it.” He’s like, “I can’t do it.” I go, “You do it.” So he goes, “Your honor, we’d like to show, you know, picture, you know.” So, what does plaintiff attorney do? Objection. Okay. Calls him up and defense counsel goes up to the judge and goes, “Your honor,” I told him exactly what to say. He goes, “There’s no way we could get a fair jury because of the— I mean, these pictures are really, really bad.” And if we don’t show them in jury selection, how are we going to know if the whole sympathy? Like, how are we going to like we can’t really know? Plaintiff attorney’s losing his mind. And he goes, “We’d like to show him a couple of these pictures.” The judge goes, “Okay, here’s what I’m going to do. I’m going to let you show two pictures.” Like, we had eight pictures. I’m going to let you show two. That’s it. Fair enough. We show the two pictures. Then he goes, “Okay, now you’ve seen the two pictures. Does anybody here feel you’d be a bad f— 17 hands go up?” They had to end up bringing in a whole new panel.
[48:47] Steve Yeah.
[48:49] Bill Now, imagine if you wouldn’t have done— We had people crying just looking at the pictures. So, that’s how important that is. If you don’t— if you’re not going to get you’ve got to get the bad stuff out there in jury selection. Otherwise, you’ll never possibly get uh um an accurate read on these jurors, particularly in cases where there’s some pretty sensitive, you know, things going on.
[49:08] Steve Well, I think the other thing is you kind of steal thunder from the plaintiff attorney, too, which is why I knew before you even told that story that he’s going to object.
[49:15] Bill Yeah. Because if the first time they’re seeing that picture is in the plaintiff’s opening, you’re not putting that toothpaste back in the tube. It’s you’re done. So, all the bad stuff, do it in voir dire. Do it on your terms. It’s and many many of times it’s going to be crystal clear who can handle it versus who really really can’t. And then you you build— I mean we got a ton of cause challenges just by doing that. And boy and then— ready for this— and when we got a defense verdict on a terrible case, all because I I think we made that maneuver in jury selection. So, all right. You know, viewer mail is always fun. um to wrap this up. Um so we just got through with the whole fall. I want to take one minute because speaking of emotions and stress, um the foot the college football seasons of your team uh Michigan State and my team uh the University of North Carolina, um you and I have had it equally rough this year. Um emotionally, how how are how are you doing uh with things? I’m just happy basketball season’s here because we both have really good basketball teams and that tends to cheer us up. But that was kind of a rough um that was a rough football season for both of us. Are are you hanging in there?
[50:31] Steve Uh well, you can see over my shoulder, right? I’m I’m all about Michigan State. I’m glad that the basketball season is is coming back around. Um you know, I I texted you during one of the games and said I’m I’m actually at the gym rather than watching the game. That’s how I— That’s how I feel about it is I’ve—
[50:45] Bill Because you didn’t want to destroy— destroy whatever room you were in. You’d rather see us get angry and lift weights.
[50:53] Steve Yeah. So, I’m I’m glad the season is done. Um it was it was a season to be forgotten. And I’m ready for for Tom Izzo and Michigan State basketball.
[51:03] Bill Absolutely. And I’m I am ready for um some college basketball as well. Okay. Well, Steve, thank you so much. Always love doing uh viewer mail with you. And uh we have you know hey subscribers are you know keep subscribing tell your friends tell your family tell your colleagues um because we’re obviously doing something uh we’re doing something uh positive here and uh we appreciate the audience we appreciate the feedback. Um so thank you. Thank you for listening to this edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky, Dr. Steve Wood. Happy holidays. Don’t be too stressed out. We will see you next time.
[51:41] Steve See you.
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