Presenting Episode 2 of The Litigation Psychology Podcast! This episode continues the series about nuclear verdicts, with host Dr. Bill Kanasky joined by special guest Dr. George Speckart. Dr. Speckart is a 35 year veteran of the litigation consulting industry and a renowned expert in research methodologies, scientific data collection, and trial and jury consulting. Listen to their fascinating discussion about the history of nuclear verdicts, who's to blame, and what companies and defense attorneys can do to protect themselves from nuclear verdicts. 


The Litigation Psychology Podcast - Episode 2 - Nuclear Verdicts part II


Podcast summary - Episode 2:


Dr. Bill Kanasky:

All right. Good afternoon and welcome to The Litigation Psychology podcast brought to you by Courtroom Sciences, www.courtroomsciences.com. And this is episode two of our podcast addressing nuclear verdicts. This is arguably, next to reptile theory, the hottest issue in the defense bar right now.

Dr. Bill Kanasky:

Everybody's in panic mode and so we're doing these podcasts to give you the jury consultant perspective on this. I am thrilled today to be bringing in Dr. George Speckart. He is my colleague for about 15 years, he's been in the industry for over 30 and really has a great scientific explanations of these verdicts and I think that our audience is really going to be thrilled to hear what he has to say. I think a lot of it may surprise you too and we're going to bring him in right now. George, are you there?

Dr. George Speckart:

Hello everybody. I'm here.

Dr. Bill Kanasky:

All right. Well, this is Dr. Speckart and I'm just going to call you George because you're my buddy. George, to get this started, I think it's important to tell your audience here really who you are, how you got started, and the number of decades you've been doing this relative to me. I'm in my 15th year but how did all of this get started for you?

Dr. George Speckart:

I was working as a graduate student getting my Ph.D. in psychological measurement at UCLA and actually saw a posting, sort of a help wanted posting, by Litigation Sciences, Inc. which was one of the pioneering firms started around 1979 in Southern California. And at that time they were looking for Ph.D.'s and actually recruiting people. They needed to get people to help them. Now we've got a surfeit of jury consultants but back in those days, they were recruiting. And so I joined in about 1983 and have been a jury consultant since that time. And my emphasis has always been on scientific rigor and psychological measurement as a means to start with a firm foundation in all the inferences that we make.

Dr. Bill Kanasky:

And we're going to talk about a lot today, the whole concept of scientific rigor, which quite frankly I don't think a lot of attorneys or clients really understand the differences between consulting firms and when you're actually getting a consulting firm that actually uses the scientific method, I think this is very, very important. But I want to talk about what's going on in litigation today, particularly in the defense bar. When I posted on LinkedIn earlier in the week that we were doing these podcasts, my LinkedIn mailbox filled up very quickly wanting to know when we were posting it, when they could tune in and I wanted to get these first couple under our belts. But, George, what I'd like you to do is to really start and you sent me a document with an outline and I think the title is amazing. The title is The Nuclear Verdict, Old Wine and New Bottles. You want to explain the concept that maybe these nuclear verdicts, this is not something new is it?

Dr. George Speckart:

Not at all. In 1984, the Agent Orange settlement, I worked on that case in New York City, 180 million dollars, that was the largest settlement in history at the time. That's 1984, 180 million dollars. 1985, there was a 10 billion dollar award in Pennzoil versus Texaco in state court in Texas. In 1994, we had the five billion dollar Exxon Valdez case. In 1999, the Los Angeles jury awarded 4.9 billion dollars against General Motors. And also that year, there was a 296 million dollar verdict in north Texas for a little girl who got killed in a pipeline explosion.

Dr. Bill Kanasky:

Wow.

Dr. George Speckart:

In 2000, 144 billion dollar verdict in Florida against big tobacco. And so by 2005, the American Tort Reform Association began writing about judicial hellholes to account for the apparently increasing number of what they deemed to be unreasonable verdicts. But verdicts with monetary awards that far exceed expectations and that are considered to be inflated outlandish or even destructive have been a problem for at least a generation.

Dr. Bill Kanasky:

That's a really good point.

Dr. George Speckart:

And I think possibly, from a perspective spanning a few decades, it appears that a new generation of lawyers are now looking at a phenomenon that is going on for this entire time span and gave it the name nuclear verdict. But back in the '90s and the early 2000s, they called it the runaway verdict or the runaway jury. Of course, everyone knows there was a movie and a novel by Grisham with that name as well.

Dr. Bill Kanasky:

Yeah. And I believe Gene Hackman and John Cusack were in that movie.

Dr. George Speckart:

And we could talk about that one for an hour but we'll keep moving along.

Dr. Bill Kanasky:

Yeah. But that's a very good point. These verdicts have been around for a while and I think ... How do you feel the role of social media and the internet, because remember, obviously back in this time there was no social media and I guess the only way you got your news was really from cable TV or the newspaper, do you think social media and the internet today is really getting the information ... By the way, yesterday, Johnson & Johnson got hit for like a couple hundred million dollars. It was something on LinkedIn I saw. What do you think of the role of social media today and how it impacts the news of these verdicts?

Dr. George Speckart:

Well, a lot of people have been offering opinions and opinions have to be tested and subjected to scientific rigor. But my own opinion, which has also not been tested yet and which we'd like to test, is that there's increasing distrust, resentment particularly with regard to CEO pay, disparity among executives and common workers and tgolden parachutes, all of that. That comes up in social media, it also comes up in politicians' messages for reform and it comes up in the internet generally which I think the main function of which is just to disseminate information more efficiently so the people learn these facts and react to them on a quicker scale than they used to.

Dr. Bill Kanasky:

Yeah. And so we had talked offline a couple days ago so all these articles, not publications per se, but articles are coming out now on nuclear verdicts and why they're happening. It amazes me when they say, "Here's the opinion from the legal expert," who's some professor at a university who doesn't talk to jurors, doesn't do mock trials, is more of an academic. And these academics have come out and they just blame the jurors. 'Well, these are different jurors and these jurors don't value money, and these jurors hate corporation, it's all the juror's fault.' I'm not so sure about that, I'm really not. I do think that there are these horrible venues where if you attempt to try a case at one of these venues, you're going to be in trouble. I don't care whether it was 1985 or 2020, but I have a problem with the pundits coming out and just saying, "This is a jury problem," where I think maybe the insurance defense industry, I think there's some changes.

Dr. Bill Kanasky:

I think number one, there's a new generation of defense attorneys, okay. And the ones that are now retiring, who I know a lot of them, they retired with usually over 100 to 150 jury trials under their belts. Now these 40 something attorneys, or maybe early 50 something attorneys, they don't have nearly the amount of experience or trial experience that their predecessors did. And then you combine that with the insurance defense industry's lack of cooperation with helping these attorneys accurately assess these cases. George, do you blame the jurors or do you think it's more of a system-wide issue?

Dr. George Speckart:

I think it's a multiplicity of factors and jurors are certainly part of it. Still, to this day, a shocking number of poorly trained witnesses who just give away the farm either at deposition or at trial, they look like they're covering up. And jurors don't say, "Oh, that witness is nervous. If I were up there on the witness stand, I'd be nervous too." What they say is, "That witness looks nervous, he must be hiding the ball." And then of course there's this issue of the judicial hellholes that the American Tort Reform Association has written about for so many years and that's not just jurors, it's also the bench and the way that judges make decisions that they point to.

Dr. George Speckart:

Then there's this issue of street-wise litigation, we call it, and we wrote about that in 2003. And I can offer you a short summary of that article which is basically that the plaintiff attorneys have gotten really good at manipulating the courtroom and crossing the line at selective spots before anyone knows what's happened. They seize hearts and minds of the jury and the defense, more conservative defense lawyers are just standing there not knowing what happened, out-hustled and out-maneuvered.

Dr. Bill Kanasky:

I'm glad you said that word out-maneuvered because what I see happening in this industry is listen, you and I in particular, we work on a lot of these big cases and we do not get hit with nuclear verdicts. And I think there's a formula to failure and a formula to success and where I see the success is when you have, whether it be an insurance company or a corporation, being very aggressive early on in a case, doing mock trials, doing focus groups, preparing witnesses.

Dr. George Speckart:

Leveraging the power of science.

Dr. Bill Kanasky:

Yeah. That takes time and money and it takes a certain philosophy which a lot of insurance companies don't want to spend that money on. And so I think the formula to success is to out-maneuver your opposition, to out-hustle them, I call it throwing the first punch. That's what I call it.

Dr. George Speckart:

You used to say you win by out-preparing the other side.

Dr. Bill Kanasky:

Precisely. And I think that's largely disappeared. And let's talk about reptile a little bit and you said the plaintiff attorneys are getting really good. I don't think it's the reptile ... Reptile works, I mean we know that works. They got eight billion dollars of verdicts and settlements already. But the issue is you have a plaintiff's bar that is very, very aggressive in training their attorneys to be better attorneys. Defense attorneys, they don't get any subsequent training, right? They kind of learn on the job. And so when you have so few cases going to trial now yet you have this kind of, I don't want to say lack of preparation, but I guess a lack of training on the defense side of subsequent training and then you go on the reptile website and there's all these seminars you can go to to learn how to give a better opening statement, to learn how to cross examine a witness more effectively. I think what you're seeing on the playing field, it's like a pro team against a college team, I think it's a difference in training. What are your thoughts about that?

Dr. George Speckart:

Well, there's actually more to it than that because you have to consider also a number of factors that are leading to defense attorneys being out-maneuvered and out-hustled. And the primary one is that the plaintiff attorneys have their own money in the game. So they're going to be taking this dead seriously and preparing day and night every way they know how. Also, plaintiff attorneys don't have to worry about loyalty to a client like defense attorneys do. So defense attorneys may be more prone to like be concerned about preserving the record for appeal or something like that whereas plaintiff attorneys need to win here and now. So those are just several examples of how plaintiff attorneys out-hustle defense attorneys but there's even more and it just goes on and on. It's the culture.

Dr. Bill Kanasky:

Yeah. So what's been happening, and this is a very hot topic, and something I read in one of the articles which no one's really talking about until now is the concept of third-party funding for litigation. This has become an investment for people to have money, for hedge funds. And so now what's happening ... So back in the old day, like you said, the plaintiff attorney's own money is on the line. They have to finance the litigation. Now, especially on some of these big cases, they find an investor to pay for everything and I think that's why you're seeing some of these crazy ridiculous demands at mediation and then crazy Nick Rowley getting in front of a jury last year and asking for 145 million dollars because if you have that funding behind you and there's really no consequence, well, go try the case. And if you lose, the plaintiff attorney's not losing anything. And if you win, it's going to be a nuclear verdict.

Dr. Bill Kanasky:

What are your thoughts about how this third-party funding is now fueling litigation? And then what the defense bar has is typically an insurance company that wants to save money. Not a fair fight.

Dr. George Speckart:

I've been involved in one of those cases. In order to tell this story, I'm going to have to back up a little bit to a comment you made earlier about how harnessing science can really have an effect. In other words, my first thought was possibly the listener of this podcast is saying, "Well, who are these guys? What right do they have to make these opinions? What have they done?"

Dr. Bill Kanasky:

Yeah.

Dr. George Speckart:

Well, let me tell you something about what we've actually done and this is just one example. We actually played an instrumental role in suppressing east Texas patent verdicts to the extent we were mentioned in an article. We were mentioned by name in an article called "Taming Texas" and those verdicts have gone from 8, 9, 10 figures down to one or two million dollars and a lot of defense verdicts in the last 10 or 15 years largely as a result of these defendants being willing to harness science. But even more to the point, we worked for a heavy equipment manufacturer for 13 years and over that period of time, the highest verdict was 4.2 million dollars because they consistently used the scientific methods that were made available to them. But when the crash came in 2008, they discontinued it saying, "We just can't afford this." I tried to warn them against it but they were not receptive to my messages. Two months later they got hit for 57 million dollars in San Antonio on just a back injury case essentially.

Dr. George Speckart:

And so what happened then, I didn't hear from them for a couple of years, and I did get contacted by them on one more case. It was a trade secrets case and the mock trial showed they would get hit for a couple million dollars but I told them at that time, "There's something wrong with these clauses." We have to train these guys extensively. They never followed up on that, they just went to trial. The plaintiff in that case was funded by a third-party investor and they got out-hustled at trial and these defense witnesses collapsed, basically gave away the farm on the witness stand.

Dr. Bill Kanasky:

Wow.

Dr. George Speckart:

Jury awarded 75 million dollars.

Dr. Bill Kanasky:

Oh.

Dr. George Speckart:

What happened was the plaintiff team funded by a third-party was just armed to the teeth.

Dr. Bill Kanasky:

Yeah.

Dr. George Speckart:

They were prepared to the hilt and I really don't think that the defense team could've matched the level of preparation that the plaintiff team had. So when you have that third-party funding, it allows you to do everything that needs to be done and then some and that's what makes a difference.

Dr. Bill Kanasky:

If you bring a knife to a gun fight, you're probably not going to win and that's what it sounds like happened in that case. I still think it's currently happening. So let's kind of define the losing formula, because when I read about these things and then rumors start to spread, but we know a lot of attorneys, I think that the losing formula which what leads to these nuclear verdicts, and I think it's the same formula every time from my research, is that you have this lack of early preparation. The discovery process you get out-maneuvered. The witness testimony stinks, you get out-maneuvered, all these witnesses-

Dr. George Speckart:

Bad depositions.

Dr. Bill Kanasky:

Bad depositions. They're all on videotape.

Dr. George Speckart:

I call that handcuffed on a freight train to hell.

Dr. Bill Kanasky:

Well, yeah, and then phase two is ... So now you've realized we have a big, big problem. And so then the plaintiff attorney doubles their demand or hell, they just take it off the table and say, "Screw you, we're going to trial." And now everybody's panicking. Then an excess insurance layer kicks in, right? So now, usually the original trial team is now replaced by some big shots that haven't even worked on the case and they're hired to come in, it's called parachuting in. And I have several clients that do this, a new legal team will come in, parachute in on the case, and they're expected to come to the plate and hit a home run as they walk into the courtroom with this new case and the plaintiff attorneys have been doing, they've been on the same plan, they're going to stick with their plan. And then by the time you get to the courtroom, you're so far behind the eight ball there's no way to catch up.

Dr. George Speckart:

That sounds about right.

Dr. Bill Kanasky:

Yeah.

Dr. George Speckart:

I would add, however, that there often is some form of egregious corporate conduct or some witness who really is trying to hide the ball. And oftentimes these witnesses are lying to not only their trial team but to the people that try to train them or to the psychologist working with them. So sometimes there really is some kind of heart of darkness at the core of all this the jurors can sniff out.

Dr. Bill Kanasky:

Yeah. But if you know that early on in your case, I think you handle that file a little bit differently, if you figure that out.

Dr. George Speckart:

Develop a strategy that works to take care of that ahead of time and it often seems like the entire trial team is in denial about it.

Dr. Bill Kanasky:

I think you're right. And it's my opinion, before I want to jump into the science here, I largely think the vast majority of these ridiculous verdicts are preventable if you do the right thing. Like with anything else in life, if you follow the right system, it's most likely going to work out for you. And so, George, I'd like you to kind of walk us through what you and I do for our clients. You've been doing it a lot longer than me but talk about the success system and how to use the scientific method particularly early on in cases and what you've done for decades, what I've been doing to help our clients avoid getting behind the eight ball, avoiding these nuclear verdicts, and in fact actually obtaining leverage against plaintiff's counsel.

Dr. George Speckart:

Well, what we're really looking for here is control. And control has two key components really, one of which is quantitative and the other one is qualitative. The quantitative component entails prediction. You have to know ahead of time that there's a significant likelihood that you're facing a potential runaway or nuclear verdict. And that involves an aspect of forecasting and prediction. Now there's a lot of controversy about whether mock trials can actually predict litigation outcomes. But that whole controversy is permeated by the confounding factor of whether or not the people who are actually practitioners have the scientific training and expertise to design and implement research for prediction of human behavior. In other words, there are things that have to be done in psychological research and design in order to achieve predictive validity. And if those things are not done, your research will not be predictive.

Dr. Bill Kanasky:

Let me jump in on that point. In fact, there's a trial going on right now in Las Vegas that we did a mock trial for our client who's an insurance company. And the plaintiff attorney's a reptile attorney. So I get the phone call and they said, "Hey, we're not feeling really good about this case." And here's what they said, "We've already done a mock trial but we don't trust the results." And I went, "Well, who did you hire?" They told me who they hired, I'm not going to mention their name, but they don't have Ph.D. scientists on their team. I think their backgrounds are in like political science and public relations. And they put on a very non-scientific basic project. And guess what the results were, George?

Dr. George Speckart:

Three defense verdicts.

Dr. Bill Kanasky:

Three defense verdicts.

Dr. George Speckart:

It happens every time.

Dr. Bill Kanasky:

And they didn't even test the reptile theory in the mock trial. So then we came in and we helped the legal team put on, and I think this is huge as far as prediction, is you have to put on the right plaintiff case to accurately test the case and give valid and reliable results. So we helped them design the opening statement, the questioning for the witnesses, the closing argument to be more reptile theory-based. And then we go in and we do our mock trial. Guess what the results were? 100 to 115 million dollars in damages across three juries. Okay. So, listen, let me repeat that. The first set of mock trials, zero, zero, zero, defense, defense, defense. Once we reptiled ourselves essentially in the mock, because that's what's really going to happen in trial, 100 to 115 million dollars. But now the client knows. Unfortunately, they called us a little too late in the game because I think if they knew the case was worth 100 million dollars two years ago ...

Dr. Bill Kanasky:

So I do want to ask you about the timing of such research. But I think a corporation or an insurance company and of course a defense firm to have these answers, the earlier the better, allows you some maneuverability to make the right decisions because if I tell you, "Hey, you're going to get hit for 100 million dollars and your trial's in 30 days," that's not a really good position to be in.

Dr. George Speckart:

That's part of it. The other part of it is that the people that run the trial teams at in-house corporate counsels especially need to be educated about the importance of scientific background and qualifications in jury research practitioners. We wrote an article about this in Risk and Insurance in 2008. Unfortunately, it was timed, the article came out right at the moment of the great recession market crash. But part of the issue here is that ... I've been writing these articles that talk about how the legal profession and science basically just don't like each other. And if you don't believe that, Google the following, "Seventh circuit excoriates legal profession for fear of science," and you'll see all these articles written by various types of people who talk about how they believe that lawyers just hate science. And so they don't look for it in their jury research practitioners.

Dr. George Speckart:

And so there's a lot of skepticism toward whether or not a scientific approach is even worthwhile or meaningful. I had one attorney tell me once that he thought that the allegation that mock trial research could predict verdicts was "offensive." So I'll leave that to the listener to ascertain what's really going on there. But let me tell you how the story arose and how the whole idea arose that mock trials could in fact be predictive. In 1993, we worked on the Exxon Valdez case and a mock trial there had four juries awarding 2, 3, 4, and 12 billion for an average of 5.2 billion dollars. The actual worth, of course, was five billion but Exxon stock went up because Wall Street thought the number was going to be 10 to 12 billion dollars.

Dr. Bill Kanasky:

Wow.

Dr. George Speckart:

So this latter range of 10 to 12 billion dollars, we called a hunch. It's how cases are settled to this day 99% of the time. So you can imagine how much money's actually just thrown away based on what people call intuition or hunches instead of relying on scientific methodology. But at that time, 1993, we never came to the conclusion that research could predict, we just thought that was too much to conclude at that point-

Dr. Bill Kanasky:

Yeah.

Dr. George Speckart:

But 10-

Dr. Bill Kanasky:

Go ahead.

Dr. George Speckart:

Sure, well, 10 years later, we're working on one of the heavy equipment manufacturer's cases and had a mock trial with three juries of 25, 37, and 112 million averaging 58 million dollars. Our client settled out and the actual trial ended up with a verdict of 58 million dollars, it was exactly the same as the average of the three mock juries. We affectionately refer to this in-house as perfect research. But this point, we could no longer dismiss the notion that when the research is designed and implemented in a certain manner that it could actually predict. At this point, we really felt we had a moral obligation to start showing these results to people and getting them to think seriously about using science to try to head off these runaway juries. So again, back to the point, you have to know it's coming before you can even start to prepare. And that's prediction.

Dr. Bill Kanasky:

I totally agree. And you talked about different qualifications across consultants and consulting firms and jury consulting now, back in your day, there weren't too many people doing this and now you have more ... It's still in its infancy but it's growing. But what I've seen are a lot of firms popping up that really lack that scientific background. Yeah, they're selling mock trials and they're selling focus groups and they're doing it a lot cheaper than us and unfortunately I think sometimes the defense bar or the insurance industry, they're looking at the dollar sign to make good choices.

Dr. George Speckart:

You have to also keep in mind there's no credentialing standards, no qualifications standards, there's no barriers to entry at all in the jury consulting field. All you have to do is assert that you are one and even the American Society of Trial Consultants had a vote on whether jury research consultants ought to have some sort of credentials, it was voted down in the American Society of Trial Consultants.

Dr. Bill Kanasky:

I was at that meeting. I was at that meeting. And do you want to know why it was voted down?

Dr. George Speckart:

Because there were so many who didn't have qualifications or credentials.

Dr. Bill Kanasky:

Yeah. I mean, there's 100 people in this room and 10 of them have Ph.D.s and probably 20 of them have master's degrees, the rest of them, George, I saw acting coaches. And by the way, I'm not making this up, I sat next to these two ladies and I asked them where they were from, they said, "California." I go, "Well, what's your specialty in litigation consulting?" They go, "We specialize in jury selection." I go, "Really?" I go, "What's your background? What's your education or qualifications?" And they said, "We're handwriting experts." I said, "Excuse me?" They go, "We're handwriting experts." I'm not joking, this is a true story from 2003. And I go, "You're handwriting, experts" I go, "How in the world do you assist with jury selection if you're handwriting experts?" And they go, "Oh, well they give us the juror questionnaires," the basic juror questionnaire that gets filled out, "we get copies of those ahead of time and we can analyze the handwriting and tell the defense team whether they're going to be pro plaintiff or pro defense." I almost fell out of my chair, I almost burst out in laughter.

Dr. Bill Kanasky:

I think I did burst out in laughter and they're kind of looking at me funny. But that's the type, in other words, I think it's a very buyer beware system out there for the clients. I feel bad for the clients that maybe don't understand the importance of qualifications and training in the scientific method.

Dr. George Speckart:

Science with quotes around it.

Dr. Bill Kanasky:

Yeah.

Dr. George Speckart:

The funny thing here is that we talked about this fear of science. Science is merely society's preferred means for ascertaining the truth of a proposition. Why should anyone be afraid or resist this whole thing? And when you're talking about jury selection, you're talking about prediction of behavior. Now if you go back to your just basic high school science classes and remember Newton, Isaac Newton under the apple tree, right? And the apple falls. So you have observation is the first step in the scientific method, then hypothesis, then theory, then you have the prediction from your theory, and then you test that prediction. So prediction is actually the highest level of scientific achievement.

Dr. George Speckart:

Now when you're doing jury selection, that is nothing other than prediction because you're trying to say, "Is this juror a good juror or a bad juror?" Meaning what is he going to do later when he gets into the verdict room and starts deliberating? You're trying to predict his behavior. So you have all these people operating at the highest level of scientific achievement, namely prediction, and not a single one of them has any kind of background in science at all. It's really astounding and I routinely over and over again get juror questionnaires given to me by trial teams and it's just full of all this stuff like, "What does your bumper sticker say? What radio shows do you listen to?" And someone has decided that those things are going to predict juror behavior. Well, on what basis do you have that information? How do you know this will be predicted? No one's ever tested these things, they've never been subjected to scientific analysis. This is how jurors get picked, it's really incredible.

Dr. Bill Kanasky:

I'm going to tell you a story about a nuclear verdict that I actually have on a computer screen right now. There's a guy named Pat Selby, he's a very successful plaintiff attorney in Cook County, Chicago, and I've been up against him several times and have been very successful. But last year, he won the largest verdict ever, I think it's in the state of Illinois and against the city of Chicago, when a woman was paralyzed at O'Hare airport when a bus shelter collapsed on her. And he got, you ready for this? 148 million dollars, and a lot of people said, "Well, it's Cook County. What do you expect?" But here's what I want to tell you because I know people that worked on this case. Guess how many times Pat Selby mock tried this case before trial? Take a guess.

Dr. George Speckart:

Maybe four?

Dr. Bill Kanasky:

Nine. Nine times. Nine times because he wanted to be sure he was going to win and he also wanted to be sure is the amount of money I'm asking for going to offend this jury. If I ask for 200 million, is that too much? Or is 100 not enough? He mock tried it nine times. George, guess how many mock trials the city of Chicago did prior to trial.

Dr. George Speckart:

Across all their other cases?

Dr. Bill Kanasky:

No, for this case. For this particular case, guess how many mock trials they did.

Dr. George Speckart:

Zero or one.

Dr. Bill Kanasky:

None. None. They did not do one. Do you want to know why? They didn't want to spend the money.

Dr. George Speckart:

Sure.

Dr. Bill Kanasky:

They didn't want to spend the money.

Dr. George Speckart:

That's the way it always goes.

Dr. Bill Kanasky:

And so it's 148 million dollars. So again, there's the same thing, it's the being unprepared, being out-maneuvered is going to lead to really bad things. But let's go back to the scientific method, George, the one slide that we show in our CLE presentations I want to talk about is that three-legged stool. The three-legged stool of it's validity really. Can you talk about like what is validity? Because a lot of non-scientists don't understand that and how important it is to getting correct results, because here's the thing, any jury consulting firm can get you results, they can get you answers but are they the right answers? And I think that's where the rubber meets the road.

Dr. George Speckart:

Sure. The three-legged stool to which you refer has this three legs on which it rests. And the first one is the recruit. Are you getting jurors who match the trial venue? And it's very important to make sure that the people who are watching the case that you're about to present match the people who are going to actually see the trial. Okay. And the second leg of the stool is attorney content. In other words, what is the message? What are the evidentiary stimuli? What are the videotape excerpts, the witness testimony, the good and the bad paper? And the arguments and themes, will they reflect accurately or faithfully that which the real jury will in fact hear? And then the third leg of the stool is methodology, which is how the actual research is designed, implemented, how the data is analyzed. So those are the three pillars of validity.

Dr. George Speckart:

And I forgot to mention as you questioned, "What is the definition of validity?" Validity is the extent to which your research results accurately reflect the real world. In other words, to what extent are you getting results that tell you what in fact is actually going to happen. We call that predictive validity.

Dr. Bill Kanasky:

So when you get three defense verdicts, that's typically a bad sign. In fact, I would argue if you don't lose your mock trial, there's probably something wrong in your validity. Yeah.

Dr. George Speckart:

But the real problem of course is that the mock trials tend to be won by the parties that pay for them because they're creating biased messages instead of the message that the jury is really going to hear. One of my very first mock trials in 1983 it was down in Georgia and it was a pharmaceutical case. We got defense verdicts and the jury came back with six million dollars and our client is pissed off. It turned out that the pharmaceutical company was falsifying data to the FDA but they never even put that in the mock. Of course you're going to get defense verdicts when you're filtering the data that the jury hears according to what you'd like for them to hear. And that's why we have to be looking over their shoulders breathing down their necks about what is going to go into this mock trial? What are you going to show these jurors? Because you can make a trial come out almost any way you want if you edit the videotapes a certain way.

Dr. George Speckart:

And then again, we get back to this notion that people go, "Well, you say mock trials can predict. Who are you? Mock trials can't predict, everybody knows that." Look, if you get the same kind of people and give them the same information, you're going to get the same thing back whether you compare a real trial to a mock trial. Jurors don't use that much information when coming to a verdict. They only use five or six data points to come to a decision about verdict and damages. And you're trying to tell me you can't cover that in a two-day project?

Dr. Bill Kanasky:

No, that's a very good point. We have to wrap up here in the next few minutes but there's two more topics I want to cover with you, George. One is assuming that you're using the scientific method in doing these mock trials the right way, when's the ideal timing of a mock trial? Because I tell you what, I think 7 out of 10 that I do now are before mediation. A client doesn't want to know I'm getting hit for 50 million dollars the year that the trial date, they want that before they start going into settlement negotiations.

Dr. George Speckart:

Well, ideally it would be best if you could do it right before discovery cut off because then if you learn something you still have a chance to get another witness or make some changes before you're handcuffed at that point with the discovery cut off. Now, a lot of trial teams are just not going to do that but you certainly don't want to wait until the last two or three weeks before trial. That's just too late. It takes that long to really chew up and analyze the data and figure out what it all means. And by that time, people are just too busy preparing for the actual trial.

Dr. Bill Kanasky:

And there's no flexibility to make adjustments when you're that late in the game.

Dr. George Speckart:

Right, right.

Dr. Bill Kanasky:

And then the final topic here, and this is one that really gets me going and gets me, let's just say, a little ticked off. So I had a client, a trucking client, I was training their corporate representative, training for deposition. And we're talking about these nuclear verdicts, he's like, "Well, we have a plan internally to deal with these and we're also going to save money at the same time." I go, "Well, what's your plan?" He goes, "Well, we're going to sign up for these online mock trials. We're going to sign up for these online mock trials. They're cheap. It's a mock trial and we're going to do these in our cases to determine which cases are the winners and which cases are the losers."

Dr. Bill Kanasky:

Now again, kind of like the handwriting expert, I burst out in laughter looking at him like, "Are you out of your mind?" And again, you and I have not prepared for this podcast as far as every Q&A I've given you, George, but you and I have talked about this topic before. What are the risks and dangers? Because I know what they are, but I want to hear from you the risks and dangers of online-

Dr. George Speckart:

I can give this to you, I think, in a very succinct kind of nutshell. I imagine people are wondering what is it that these guys do that makes their mock trials more predictive than the average mock trial? And by the way, we're not saying every single one is predicted perfectly. There are things that go bump in the night, there are witnesses that are uncontrollable.

Dr. Bill Kanasky:

Bad judges.

Dr. George Speckart:

Bad judges, luck of the draw with when the jury comes in. I just had a horrible jury selection the other day where a guy was, I won't even go into those details, but the point here is that when you are predicting you have to make your research as much like the real thing as you can. That is why we use a bailiff, that's why we use a judge, that's why we use a courtroom. You treat jurors like jurors, they act like jurors and there are a whole host of other things to make it as much like the criterion, in other words a real trial, as you can possibly make it. Online research is as far away from being like an actual trial as it gets in this industry, which means it is a most egregious violation of this rule that your research should be like the criterion which is the real thing in order to achieve predicted validity. So almost everything is violated there, you don't have people acting like jurors, you don't have them having the information the jurors have.

Dr. Bill Kanasky:

Well, it's a human fact-

Dr. George Speckart:

Why should you expect the results to be like a real jury?

Dr. Bill Kanasky:

Yeah, it's really the human factor is what's taken out of it. And for example, I'll get on my football team's chat room or whatever, and these fans, I call it keyboard bravery. Any time you're online look at how people tweet and things that they post, particularly politically look how they do it. People behave very differently online than they would in a room with 11 other people. Online you hear, you just read vicious comments going back and forth, stuff that people would never say with someone else sitting next to them. In fact, I don't think there's any validity in that online methodology but boy, it's cheap.

Dr. George Speckart:

Yeah. Social psychologists call that de-individuation, which is being removed from the personal consequences of your communication. Or you could call it the writing on bathroom wall effect.

Dr. Bill Kanasky:

Yeah. No, you're absolutely right. Well, listen I think, George, I want to thank you so much for being part of the podcast today. If you want to reach out to George, again, courtroomsciences.com, gspeckart@courtroomsciences.com. And, George, we're going to have you back soon because I think we can dive into this topic a lot deeper and get into the weeds but thank you for participating. We'll see you next time.

Dr. George Speckart:

My pleasure.

Dr. Bill Kanasky:

Take care. All right. Well, that's the end of episode two. I thought that was fantastic. And Dr. Speckart really knows what he's doing. And if you have any other questions, again, Bill Kanasky bkanasky@courtroomsciences.com. We're developing live CLEs and some webinars on these topics as well but I really thought going the podcast route and having a more discussion-based platform for this was going to be a really good start to this. So we do plan on episode three of the Nuclear Verdict, which I think we're going to recruit a couple of defense attorneys to talk about their perspective from the defense perspective and the things that they go through and some of the feelings they have about nuclear verdicts. But for now, again, thank you very much. This was the Litigation Psychology podcast from Courtroom Sciences and we'll see you next time.