The Litigation Psychology Podcast - Episode 6

The myths of litigation consulting

CSI - Courtroom Sciences Inc

The Litigation Psychology Podcast, presented by Courtroom Sciences, Inc. (CSI) presents Episode 6! Today's episode is all about the myths of litigation psychology and litigation consulting. Dr. Bill Kanasky is joined by Dr. Steve Wood and together they discuss and address a number of commonly held beliefs and misconceptions about the practice of litigation consulting and what litigation psychology can do to benefit the litigation process. This is an insightful and unique topic which covers everything from mock trials to witness training and more. 



Podcast summary:


Dr. Bill Kanasky:

All right. Welcome to another podcast. We call it The Litigation Psychology Podcast, brought to you by Courtroom Sciences, www.courtroomsciences.com. We have a really interesting topic today. Myths. Myths of using litigation psychologists, myths of litigation science. There's a lot of things that prospective clients tell us when we say, "Hey, why don't you hire us to do a mock trial or hire us to train a witness or hire us to help you with jury selections?" There's a lot of things that clients believe that are erroneous and today we have Dr. Steve Wood who has the experience of hearing all of these things on a weekly basis because he's making a lot of phone calls and he's going to walk us through this list of myths and they're really not true. We're going to tell you why and give you several examples because I think that, again, a lot of clients have this thought pattern on how to use a jury consultant or how to use a litigation psychologist and there's a lot of faulty thinking here and I think I want to address each of these topics with Dr. Wood. Steve, are you there?

Dr. Steve Wood:

Hi. I'm here, yes. Thanks, Bill, for having me on.

Dr. Bill Kanasky:

No problem. So this topic that you bring up, and I have a couple of years on you. I'm in year 16 of doing this. Everything that you're about to tell us, I have heard for the last 16 years and it's not going away, unfortunately, but why don't you just kind of introduce the topic generally and then we'll take these myths one by one?

Dr. Steve Wood:

Yeah, just generally, as you said, initially, from the get-go is that a lot of times, I'm calling and I'm talking to prospective clients and trying to get them interested or at least to understand what we do as litigation scientists and a lot of times I just hear a lot of the same things over and over and over again, so I blogged about it a little bit and then we wanted to talk about it today on this podcast to just kind of clear the air as far as the beliefs that people have as far as litigation scientists go. And what I wanted to do is kind of work through and dispel each one of these myths because I think really part of the problem we have is just this kind of lack of understanding as far as what we do. We have Bull on TV now, so-

Dr. Bill Kanasky:

Oh, gosh.

Dr. Steve Wood:

... get the right idea-

Dr. Bill Kanasky:

Give me a break.

Dr. Steve Wood:

We have this opinion of what it is that litigation consultants do and as you know, it couldn't be any further from the truth. So I think my goal was really to just kind of dispel each one of these myths so that people had a better understanding going forward.

Dr. Bill Kanasky:

Do you know what, this started with the movie Runaway Jury. Do you remember the movie Runaway Jury?

Dr. Steve Wood:

Yeah, I remember.

Dr. Bill Kanasky:

Gene Hackman plays this jury consultant. He has this team of people around him and it really didn't portray our industry in a very good light because I think during the jury selection part of it, he had his consultants going to people's houses while they were in court and searching through their underwear drawers and stuff like that. We do not do that here at Courtroom Sciences.

Dr. Steve Wood:

No.

Dr. Bill Kanasky:

But why don't you bring up the first myth and let's break it down.

Dr. Steve Wood:

Yeah. So one of the first myths that we hear a lot is the idea that we don't really need a mock trial because we don't go to trial that often. And obviously, as we know with the trial rate at almost less than 3%, no one's going to trial that much.

Dr. Bill Kanasky:

No, no one is.

Dr. Steve Wood:

No. And so we have kind of, as we say at CSI and you and I have kind of come to this idea that it's really settlement science, right?

Dr. Bill Kanasky:

Yeah.

Dr. Steve Wood:

We're looking at prior to the discovery phase, clients can have a better piece of evidence that jurors can find compelling. So not just going in and assuming, "Hey, we're going to go to war. We need to figure out the best way to approach each thing in trial." It's more or less 'what do we need for discovery? What are pieces of information that jurors are finding important that we can use when we're going into our depositions and the questions that we can ask when we're in deposition' versus 'what are the themes that are going to resonate at trial.'

Dr. Bill Kanasky:

Yeah, that's a really good point. And I'll tell you, things have changed. I think six or seven out of 10 mock trials that we're currently doing are before mediation and often clients call, smart clients call and they say, "Listen, this case is never going to see a courtroom under any circumstance. However, we need to know what the potential damages are. So as we approach a settlement negotiation or mediation, I need some scientific knowledge that I can go to my client and my client can go to their boss to say, "This is what we think we should pay on this case relative to the mock jury data." And we do that all the time and, nope, we absolutely know the case will never go to trial, yet we're still doing the mock trials to help the clients assess the value of the case.

Dr. Steve Wood:

Yeah, I mean, would you want to tell your client that you think the value of the case is $10 million and then only to find out later that it was really only $5 million? I mean, that could be a big swing for your clients, to have to pay out the $10 million versus when they could have actually had to pay out only $5 million.

Dr. Bill Kanasky:

So that's a $50,000 to $100,00 investment to save $5 million.

Dr. Steve Wood:

Right.

Dr. Bill Kanasky:

I mean, that's a no-brainer. But then the other thing that's even more dangerous is when it works in the opposite way. You do the mock trial and you think the damages are going to be 10 and they come back as 35. Now you have a problem. However, if you know that and you have that knowledge earlier in the case, you tend to handle that file differently and you can talk to the leaders at the company or for the client or the insurance company and then start to make a plan because if you do the mock trial too late and you figure out, "Wow, we're going to get smashed," and it's two months before trial, you don't have a lot of room to maneuver.

Dr. Steve Wood:

That's funny that you bring that up. Remember the case that you and I worked on, actually, where the case was being settled as jury deliberations-

Dr. Bill Kanasky:

Yeah.

Dr. Steve Wood:

... were going on because they thought, "Oh my God, this case could get out of control and this is what we had never expected for it to be."

Dr. Bill Kanasky:

Well, yeah. There's a couple like that, but particularly the one we're talking about from the state of Arkansas where, and we did, boy, we did two mock trials in one week. Two day-and-a-half mock trials, and as these juries started coming back, I mean, you could see in-house counsel hopping on his phone and running out of the room to call his boss because now they knew what the case was worth and they had the ability to make the right call and settle it for a favorable amount relative to the verdicts that were coming back.

Dr. Steve Wood:

Yes, absolutely.

Dr. Bill Kanasky:

Don't forget this, Steve. There's a couple of things no one wants to talk about, but I'm going to talk about them because it's really important. This is a fact. Plaintiff attorneys are mock-trying cases, dammit. So this is not a fair fight. If the other side's done a mock trial or a focus group and they know what's going on and you haven't, even if the case doesn't go to trial, imagine the leverage the other side has in negotiation.

Dr. Steve Wood:

Absolutely.

Dr. Bill Kanasky:

So, yeah.

Dr. Steve Wood:

And even if it goes to trial. We've had it before multiple times where we've had cases where we've mocked and then they've actually gone to trial and we've heard from attorneys all the time how they use the information that they learned in the mock trial to inform the trial strategy. One thing they thought was going to work, they realized in the mock trial it didn't, so they changed courses or maybe they were going to blame the plaintiff heavily and they realized in a mock trial that that actually made the verdict become a lot higher, so they changed their strategy and approached it differently. So even if you actually do go to trial, it's nice to have. So it's various pieces both on the front end and the back end if needed.

Dr. Bill Kanasky:

Absolutely agree. What's number two on the list, dude?

Dr. Steve Wood:

Number two is 'our attorneys sufficiently prepare our witnesses'. They ask, "Well, what are you going to do differently that my attorneys can't do?"

Dr. Bill Kanasky:

Everything.

Dr. Steve Wood:

Yeah. And obviously, as you know, I want to be upfront this is not a knock on the attorneys by any stretch. I mean, we've worked with extremely skilled, extremely intelligent attorneys that are very good at what they do as far as the law, they just don't have the background that we have in psychology. So it's not really like, "Hey, we're going to do something better that you can't do as far as from a legal perspective." Like we-

Dr. Bill Kanasky:

No.

Dr. Steve Wood:

... can't go in and try a case like an attorney can, but at the same time, that attorney has a different skillset than what we do as far as psychologists to prep witnesses in a way that they just can't do.

Dr. Bill Kanasky:

Well, witness testimony goes bad in three ways. And these are psychological. None of these are legal principles. Poor cognition, emotional breakdowns and behavioral breakdowns. That's 95% of bad testimony right there. And that's 95%, well, that's 100% psychological, is what it is. And so us coming in to do that neurocognitive assessment, emotional assessment, and this has been really important now that the reptile theory attorneys are in full swing. The amount of manipulation that is taking place both at deposition and trial is absolutely extraordinary and without a more advanced psychological training - because this is psychological warfare, that's what it is - I think even the smartest, well-prepared witnesses on the substance of the case can massively fail during testimony if they don't have this additional training.

Dr. Steve Wood:

No. And you and I have both gone into witness trainings to the point where we've had attorneys or witnesses themselves say, "Oh no, I'll be fine. I'm not going to be a bad witness. There's nothing that we need to worry about here. This is just kind of a no-brainer for me," or, "This is a waste of time for me." And then within 10, 15 minutes, we can have them coughing up the whole case.

Dr. Bill Kanasky:

Yeah. And this whole nuclear verdict topic, which we've been podcasting and we're writing about, we're doing webinars about it. Every one of these nuclear verdicts, the witnesses stink. Okay? The witnesses stink and that's what gets jurors really angry and I think it's quite easy for plaintiff attorneys to pick apart these witnesses and break them down if the witnesses isn't properly trained, and then even if you have a case with maybe a good set of case facts, if the witnesses aren't delivering, you're not going to win, period.

Dr. Steve Wood:

Absolutely.

Dr. Bill Kanasky:

All right. What's number three?

Dr. Steve Wood:

Number three is what I've heard a lot is that there's this idea that litigation science is only for high exposure cases.

Dr. Bill Kanasky:

No.

Dr. Steve Wood:

We've talked to people before and they've said to us, "Well, I just don't have the right case for you. I don't have the right case for you. I don't have a case that needs your involvement." But then the question really becomes, what is the threshold for-

Dr. Bill Kanasky:

Yeah.

Dr. Steve Wood:

...getting involved? What does it take from a client's perspective to say, "Okay, this is the amount of money or this is the type of case where I need to get a litigation consultant involved."? And as you and I know, there's really not a threshold. I mean, we've worked in cases all over the place where there's states that have met, now, caps on their damages and we do a ton of business in there because clients-

Dr. Bill Kanasky:

A ton of business.

Dr. Steve Wood:

... see the value in it.

Dr. Bill Kanasky:

Yeah, because the value of money is different to each client. So I've heard the following two phrases and they're the exact same phrase, pretty much, with the exception of one word. So listen to me say this. I've had some clients say, because I go, "Well, what's the demand on the case?" And they go, "It's only $10 million." And then a different client, I go, "What's the value of the case?" And they go, "It's $10 million!" So two different clients, two different levels of exposure. Some of these Fortune 500 companies, maybe $10 million isn't a lot of money to them, but you have various layers of insurance, insurance companies, middle and smaller companies that maybe have some sort of SIR and they value, even if it's maybe a million dollars. So I think that the nature of our services, we can also tweak our services to pretty much meet any budget.

Dr. Bill Kanasky:

That's the other thing. So if somebody says, "Well, this case is only a $3 million case." Okay, well, if you lose, how is that going to feel? Meaning it's not going to help you, your career, it's not going to help your client. Now, for a $3 million case, do you need to do a three-day, $150,000 mock trial? No. No. But you could do a one-day basic mock trial, maybe without some of the bells and whistles to keep the cost down, but you're still going to get important information. And then when the big one comes up, like we had an Arkansas, I mean, we did two. We were there all week because we knew that the damages were going to likely go over a hundred million dollars. And so yeah, they spent a lot of money and a lot of time on that resource because it matched the severity of the case.

Dr. Steve Wood:

Right. I think that's actually a good segue into the fourth myth that I've heard, and that is that it's too expensive to use a litigation consultant and I think you touched on it perfectly when you were talking about it, that, too expensive in comparison to what? In comparison to getting a large verdict against you, in comparison to settling a case for much more than you should have, or too expensive to test out certain factors. So to your point is that we can work around budgets and pull back where we need to to help people get the answers that they need to get. So I don't think it's necessarily like, there's a thought that you have to do, as you said, the three-day, $150,000 mock trial, but that's just not necessarily true. And even if you can't even do a mock trial or you can't even do a focus group, I mean, even witness trainings would be worthwhile because the last thing we want to do is be called into a case later and have counsel say, "Here's my deposition testimony. Look at my witness here." And the witness tanks and say, "Well, what can you do now to fix it?" And the answer is not much of anything. Right?

Dr. Bill Kanasky:

Yeah, because I'll tell you what. A series of witness trainings and a mock trial is a hell of a lot cheaper than an adverse verdict. I can tell you that right now. In fact, I told this story on a different podcast, but there was this plaintiff attorney in Chicago who, he hit the city of Chicago for $134 million when an overhang at a bus stop at O'Hare airport collapsed and paralyzed this woman. After the verdict, he bragged. He bragged to everybody and word got out that he had mocked the case nine times. Nine. Nine. He had all his ducks in a row. Guess how many times the city of Chicago did a mock? Just guess.

Dr. Bill Kanasky:

None. Zero.

Dr. Steve Wood:

Zero, right?

Dr. Bill Kanasky:

Zero. Zero. Why? Because they didn't want to spend the money. Well, $100,000 is a heck of a lot cheaper than $135 million. And that's insane. I mean, that's like a no-brainer case to do a mock trial on, but it doesn't have to be. I remember there's a story from George Speckart and we talk about this during our mock trial CLE, is we had an insurance company call us on a case that the demand was set like $750,000 and they thought that the demand was too much. So we did like a $35,000 mock trial, it was down and dirty, and the damages came in at like $300,000. So they went back to the plaintiff and offered 450 and guess what happened? The plaintiff took it.

Dr. Steve Wood:

Of course.

Dr. Bill Kanasky:

But otherwise, they're probably just going to write the check for 700, right? Or 750. So even on the smaller cases, there are smaller projects that could be done that can say, and the whole purpose of what we do, and again, no one wants to talk about this, but it's absolutely true. And we talk about all the psychobabble. Our job is to save our clients money. It's an investment. It's an investment. If you give me a hundred grand and I can save you 10 million, I think that's a pretty good return on investment, don't you?

Dr. Steve Wood:

I would say so, yeah.

Dr. Bill Kanasky:

All right. What's our next myth that we need to dispel?

Dr. Steve Wood:

The next myth is that litigation science work really only happens right before trial. And that's a lot of times that it goes back to what we talked about before, is that, well, it happens right before trial, but we don't go to trial, therefore it's not needed. But as you and I know, it actually happens once the case is filed. I mean, there are so many times that we can get involved in a case right as it's been filed, whether that be exploratory mock trials or focus groups prior to actually any discovery where we can actually use the findings from the mock trial and focus group to help guide the discovery.

Dr. Bill Kanasky:

Yeah.

Dr. Steve Wood:

Once you have the discovery, then you can then move it on to confirmatory mock trials where we do that prior to mediation. And one thing I didn't bring up earlier was that one of the things that our mock trial results have been used for is they've been used in settlement negotiations, right?

Dr. Bill Kanasky:

Yeah.

Dr. Steve Wood:

Mock trial results have been used in mediation where we've even had clients pull snippets from the focus groups in the mock trials and then show them in mediation where they say, "Here. This is the topic. This is what you think as far as the case is worth, or this is how you think jurors would react. But let me show you how this panel of jurors reacted, and it's not how you think it is." Or, "The cost that you think this case is worth, I can show you right here where jurors don't believe you that that case is actually worth that much."

Dr. Bill Kanasky:

Yeah, that's effective weaponry to have. I tell you what, unfortunately, a lot of litigation science does happen right before trial and it absolutely makes me nuts. So I'm working on this med mal case in Chicago right now. I just got back last night, so I'm a little weary. Got back really late, but they called me, luckily. They were lucky. I was already in the Chicago area working on a different case and I get this call of sheer panic from a trial attorney firm, and I'm not going to name names. And he's like, "We're in such trouble. The case didn't settle. My witnesses are terrible." Blah blah blah blah blah. And I had a case get continued, so I had some extra time, which is very unusual for my schedule. And I said, "Well, I happen to be in Chicago and I can come over tomorrow and start helping you the rest of the week."

Dr. Bill Kanasky:

So I spent the rest of the week in Chicago. I'm going back Monday morning to do more. But it's hard to deal with some of the poor deposition testimony that I can't change. I can fix deposition testimony before the deposition, but once it's in the can and it's all on videotape, I mean, we have this doctor who essentially got reptiled to death and I'm going to read you the transcript right now. Okay. Here are all of his answers. "Yes. Yes. Yes. Oh, absolutely. Yep. That's always true. Yes. Yes. Yes. Yes. Yes." That's a problem when you're going up against a plaintiff attorney using the reptilian method, because that's a total setup to show that the standard of care is actually higher than what it is because you just said it was, Doctor. And so fixing those types of problems very late in cases is extraordinarily difficult and oftentimes too little, too late.

Dr. Steve Wood:

Oh yeah, absolutely. Absolutely. I agree 100%. There's even times where we're doing mock trials and we ask, "When's your trial date?" And it's in two weeks. So it's last minute kind of turnarounds. Now-

Dr. Bill Kanasky:

Well, the good news-

Dr. Steve Wood:

... the only thing I will say, though, is at least kudos to those attorneys and those clients who have actually decided, though, that, hey, you know what? Maybe we didn't think we needed it, but now we need it. So I guess it's better late than never, but honestly, it'd be better to get involved earlier so that we can provide more help and guidance along the way to make sure that that case that may, now going to trial, didn't need to go to trial in the first place, if it could have been settled for a number that was more amicable to both parties.

Dr. Bill Kanasky:

Yeah, and actually, last night I got a phone call from our new client in Illinois that we've recently been working with. They produce and manufacture heavy machinery and the head of litigation called me and said, "Hey," because they have called us twice now on cases way, way late, but they just met us, so I can't blame them there. But they have a new case and they said, "Hey, we're still in discovery. I want to get a mock trial and I want to do it as soon as possible, as long as we have enough discovery done, but I want to do it while discovery is still open so we don't get caught behind the eight ball like we did on some of these other matters." So they're coming around and I'm looking forward to doing that one.

Dr. Steve Wood:

Yeah, like I said, that's perfect. That's what we want. That's a very good sign and it's a sign that the client's side is starting to realize that early is actually a lot better, right?

Dr. Bill Kanasky:

Oh, yeah. Again, if they understand they're going to get whacked and there is no trial date, imagine what that does for you as the company or the attorney, whereas if you don't know that information until right before, then it's like I'll give you a blindfold and a cigarette because that's about the only thing I can do at that point.

Dr. Steve Wood:

Yeah, exactly.

Dr. Bill Kanasky:

What else we got?

Dr. Steve Wood:

All right. So the last kind of myth that I've heard very often when talking to a potential clients is we already know the key issues in our case. We know what they are. And honestly, attorneys and clients do often know what the key issues are. The problem is they don't know how jurors are going to respond to those key issues. They might think that, I mean, how many times have we seen it before where an attorney will think this is kind of the key linchpin of the case, this is going to be the thing that turns the jury either against us or in favor of us, and then it ends up being something that jurors are just kind of like, okay, moving on. And they really hone in on something that the attorneys, they say after the fact, "I never would have thought about that. I never would've thought that would've been the main issue."

Dr. Bill Kanasky:

Every case is different. Every venue is different. I mean, think about it. How long has asbestos litigation been going on? For decades. And everybody knows what the arguments are going to be on each side, but you don't know what's going to happen in your case. And so that's why we do a lot of asbestos work still, because it doesn't matter what's happened in a different case. Every plaintiff is different. Every injury is different. How the plaintiff presents is very different and you can't just look at history to predict the future when it comes to litigation. It's really important to get those answers on a case-specific basis.

Dr. Steve Wood:

And I think one of the things we see a lot of is that clients struggle or attorneys struggle with whether or not they should blame the victim because in some instances, the plaintiff does have some responsibility for the injuries and then other times they don't and clients aren't sure whether they should or shouldn't blame the victim. But I don't think you want to find out after the fact because we've had instances before where we've run test-retest mock trials where they will blame the victim in one and then they won't blame the victim and the other and they'll get stark differences. And I don't think you really want to be on the bad end of deciding after the fact-

Dr. Bill Kanasky:

Yeah.

Dr. Steve Wood:

... trial that you blame the victim when you shouldn't have.

Dr. Bill Kanasky:

No, absolutely. Now that you've brought that up, my favorite research design in the world is the test-retest methodology. Can you kind of walk our audience what goes into the test-retest methodology and why it's so important on some of these cases?

Dr. Steve Wood:

Yeah, sure. The test-retest is really just where we run multiple iterations with similar information, but in some instances adding additional, because as we know, there's some things that may or may not come in to evidence or there's different approaches that people want to take, whether they want to concede liability or whether they don't, and you don't want to find out after the fact that you've made the wrong turn. You brought up before the case that we did in Arkansas. One of the things that we did to test and retest was how much finger-pointing got pointed at other parties.

Dr. Bill Kanasky:

Yeah.

Dr. Steve Wood:

So the question was, do we accept full responsibility and show how remorseful and contrite we are and to just move on there or do we fight negligence or do we fight liability and then point fingers at other parties to find out, "Hey, you know what, we're not at fault here. The party that's most at fault is this other party." And then really strongly take a stance where they point the fingers at the other party. And in that particular case, as we found, pointing the finger at the other party just pissed off the jurors and we found out that being more contrite and being more apologetic was actually the thing that resonated more with the jurors and reduced the damage awards. I mean, obviously there was not going to be any way that we were going to get out of it without any damage awards, but we were able to lessen the impact of the damage awards-

Dr. Bill Kanasky:

Yeah.

Dr. Steve Wood:

... based upon knowing whether to apologize versus point fingers. So like I said, knowing that, just those small different things, because when we did it, we didn't change much of the case facts. We didn't change any of the case facts. It was just the approach from the one party. So I think that, like you said, it's something that you want to know prior to going to trial rather than say, "This is the approach that we're going to take. We're not quite sure if it's going to work," and then find out after the fact that you chose the approach that causes your nuclear verdict, right?

Dr. Bill Kanasky:

Yeah. And there's only one way to do that and that is to test those issues in the test-retest model. Related to that, with test-retest, another way to do that would be on causation. Should you focus on liability issues or causation issues? And like you said, liability, blame the plaintiff versus we're just going to focus on causation here and kind of see where that gets you and see if jurors get angry or they accept it.

Dr. Bill Kanasky:

The other thing, and maybe this is a good myth, too, that I hear is if you have a case and you're admitting liability, well, that's a perfect a chance to do a test-retest mock trial because you can test different damages models. I think that's really important. We've done that several times where on day one, we really, really low-balled the damages and we pumped up what the plaintiff was going to ask for to see if that would tick jurors off. Oftentimes it does, but sometimes it doesn't. And then the next day we came in with a different damages model that was a little bit higher and we thought, "Hey, maybe the jurors won't get quite as mad." And so that's another example of how these test-retests, and by the way, that's what the plaintiff attorneys are doing. They're testing their damages models in their mocks. They want to know, "Okay, if I ask for $200 million, am I going to get laughed out of the room?"

Dr. Bill Kanasky:

So they do a mock, they ask for 200 million, they get laughed out of the room. So they come back next week and they ask for 150, and half of the jurors laugh, half of the jurors are okay with it. And then the third time around, they asked for 125, and now 75% of the jurors are okay with it. You see where this is going?

Dr. Steve Wood:

Yes.

Dr. Bill Kanasky:

And they're getting that data. So when they do come into the courtroom, when they're lobbing out these crazy numbers, and the defense bar, because they're in this panic now over nuclear verdicts, they lob out this crazy number. The defense bar needs to understand that's a number that's been tested. That is not some wild pull it out of your butt number. That number has been tested at a mock and it worked at the mock. They're not just coming with this stuff out of nowhere.

Dr. Steve Wood:

Well, I think that actually goes to what you were talking about as well, that we find a lot of times, defense counsel is not sure whether or not they should offer alternative damage numbers and we've seen the idea of anchoring and adjusting. You got plaintiff's attorney who's basically given out this high number and then if defense counsel comes in and doesn't offer anything there, there's nothing else to go by. But if they come in and offer some alternative damage number, then at least jurors have kind of a anchor point on both sides-

Dr. Bill Kanasky:

Yes.

Dr. Steve Wood:

... we see a lot of times is they'll say, "Okay, well, plaintiff's is too high, defense is too low. Let's kind of meet in the middle somewhere." But if they don't have any sort of thing on the other end, they don't have anything to go with and then you increase the likelihood that they're more likely to go with the plaintiff's number.

Dr. Bill Kanasky:

Yeah. Defense attorneys are absolutely terrified to do that because what I always hear is, "Well, if I put out a number, that's essentially me admitting fault." Well, no, it's not, and there's a way to do that. In fact, that's what you tell the jury. You tell the jury, "Listen, I have a duty and obligation to my client to argue these damages numbers. I don't think we did anything wrong at all. In fact, I don't even think you're going to talk about damages in deliberations, however, I have the duty to give you something more reasonable if you actually get this far." And then you put on your alternative damages number and jurors won't think that you're at fault if you introduce it that way.

Dr. Steve Wood:

Right. And even then, too, you have to be careful about how you do it. And that even needs to be something that's tested. I've seen before where the defense attorneys have offered alternative damage numbers, but they're so low in comparison-

Dr. Bill Kanasky:

Yeah.

Dr. Steve Wood:

... it's almost offensive that the jurors are like, "Okay, well, you're not even giving us a realistic number."

Dr. Bill Kanasky:

Yeah.

Dr. Steve Wood:

... so another thing that needs to be tested about, okay, well, obviously, keeping the numbers low, but what's too low to the point where we're going to get ignored? And like I said, I've done it in a recent mock trial where I've seen the defense attorney offer an alternative damages number and the jurors just completely rebuffed it because they said, "You know what? That's not even a legitimate number. We're just going to ignore it. So you know what, we're going to go with what the plaintiff actually gave us because defense attorney wasn't even, you know, it was a BS number."

Dr. Bill Kanasky:

Yeah, and if you come in low-balling and the jury perceives it as low-bowling, they're going to make you pay every single time.

Dr. Steve Wood:

Absolutely.

Dr. Bill Kanasky:

Outstanding. Well, Steve, Dr. Wood, thank you so much for coming on the podcast. I thought this was very informative and I'm going to wrap this up and let you go, but thank you so much. I think we'll be doing a lot more of these in the future.

Dr. Steve Wood:

Good. I appreciate it. Thanks for having me on. We'll talk soon.

Dr. Bill Kanasky:

Talk to you. All right, well, that concludes our podcast for today, Litigation Psychology Podcast brought to you by Courtroom Sciences. And if you have any questions ever, please feel free to email me at bkanasky@courtroomsciences.com and we'll see you on the next podcast. Thank you.