Steve Wood, Ph.D. and Bill Kanasky, Jr., Ph.D. answer the latest podcast listener mail:
– When doing jury research and there is a confidentiality issue, should I use real names or fake names?
– Should I advocate when doing jury research?
– What are the benefits of a focus group over a mock trial?
– How should I handle testing evidence that may or may not come in at trial?
– What are the advantages and disadvantages of doing focus groups or mock trials virtually vs. in-person?
– How much should I prepare my witness with information prior to their deposition?
– Do jurors make up their minds about the case right after opening statements?
Full Episode Transcript
[00:16] Steve Welcome to another edition of a Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Steve Wood joining me fresh off his speaking tour in what appeared to be cold and snowy Wisconsin, uh, Dr. Bill Kanasky.
[00:28] Bill Yeah, it’s uh, that time of year, but you know, it is what it is. I survive. Boy, people get—listen, I lived in Chicago for 15 years. I remember like, like the first time it snows for the season, like everybody’s an idiot. Like people just forget how to, how to drive in the snow. And so, there’s just cars sliding off the road. It’s, it’s really dangerous. Not even a lot of snow, just like an, an inch is all it takes to, to make things nuts. I’m assum—I’m assuming you don’t get snow in College Station?
[01:05] Steve I do not get snow, no. But obviously growing up in Michigan, I’m, I’m used to it. Or at least I was used to it and I don’t miss it.
[01:15] Bill Do you travel back up there and then have to drive in it, it’s like—
[01:17] Steve No, I luckily I don’t go up there at this time. I know enough to stay away.
[01:23] Bill So you’re—you smartened up?
[01:24] Steve Yeah, exactly. Not to mention too, I get cold in 40-degree, 50-degree weather. So, I’m like those SEC players, players with the, the heaters.
[01:31] Bill Oh, I’m terrible. I’m terrible. Like my family—it was like, you know, 50, 50 degrees out, uh, the other morning and like my family’s like, “Can we make a fire?” Like, it’s 50, come on. “Can we put the heat on.” I’m like, geez, terrible. Yeah, you know, so why I moved to Florida, man, don’t have to deal with this, deal with this stuff. I do, I do have—I do have quite the update.
[01:56] Steve What’s the update?
[01:57] Bill I do have quite the update. So, um, for those that have been listening to this podcast for what, now three and a half, four years, um, and you, you know my son, my older son very well, Billy, um, who’s, who’s pretty much a complete slob, right? We, I mean, we’ve, we’ve established this on the podcast, right? He’s 23—and he’s been a slob for a long time. Um, he must get this from his mother because I’m the neat freak. I’m not a slob. And I tell you, you know, his room’s always just a crazy mess. I remember I had to borrow his car and like, I had to put the windows down because it just smelled like, like, like [__], right? It was, it was awful, right? I don’t know how this kid lives, uh, like this. And then when he borrows my car—like, his car is in the shop—he borrows my car, then my car smells like [__]. It’s all—I, I, I can’t, like, I can’t have this, right? So, um, I, I, I had a couple tools over in, over across the street here in the former man cave, uh, now where he’s living. And so, to go, uh, pick up the—so I walk in his room, it’s like spotless. Like vacuumed and bed made and like, wow, it smelled good. I think—Yeah I think you like had a candle. I like, okay, all right, whatever. I didn’t think much of it. And then, uh, wife, he had to borrow my truck or my—actually, she took it over to my neighbors. My neighbor had to move something. Said, “Yeah, borrow my truck.” So, I had to go to the gym and so I borrowed his Jeep. Steve, I get in the Jeep. It’s like it’s been professionally detailed. I mean, there’s not one speck of dust. It’s, it’s phenomenal. There’s no garbage on the floor and it smells great.
[03:49] Steve I have a feeling I know where this is going.
[03:52] Bill And then I, then I figured it out. He’s got a girlfriend.
[03:59] Steve There you go.
[04:01] Bill Aha. So needless to say, oh, he’s always—he’s very well groomed, his laundry’s done. This—I kind of like the upsides of this. I really hope this works out.
[04:10] Steve She sounds like a keeper.
[04:12] Bill I mean, I hope it works out because I really, really like this version of him. Like Steve, everything’s clean and I mean clean. It’s, it’s exceptional.
[04:24] Steve Well, good, good for Billy.
[04:27] Bill Yeah, well, you have a—well, you better have a few more years, uh, uh, on those issues. So yeah, enjoy yours while they’re a little bit younger, but then you’re going to start to deal with all this stuff. And I listen, as, as your consultant/therapist, I, I will be here. I will be here for you to provide counseling, whatever it takes to get you through those moments.
[04:50] Steve Well, that’s good because I’m, I’m gonna need you for some counseling today, which is why I brought you on to, to do viewer mail, right? Usually, you’re the one doing the viewer mail. I’ve been collecting some viewer mail, so I thought, hey, I’m gonna reverse the roles here and ask you some questions that we keep getting all the time.
[05:07] Bill I, I really love viewer mail. I really do. We’ve had some rough ones too, but that’s okay. We listen, we, we answer them all. So, you may not like it, you may not like the answer. Got a few stories about that recently but, uh, yeah. Got plenty of stories. I—made this go off at any moment in this. Like I may just rant at some point during this, during this episode. Just be ready. I’m fully triggered, man. I’m triggered.
[05:32] Steve I see that. Well, I’m going to start right from the jump, and this might really start the trigger, but you know, one of the things we’ve been hearing a lot and we get a lot of questions on is: I have a case, confidentiality is an issue. Do I use fake names, or do I use the real names? I, I have some thoughts on this, but what do you say?
[05:52] Bill Steve, 23 years of doing this, I have seen the fake name, uh, strategy implemented 100 times, okay? Trial counsel, here’s the record for actually maintaining that throughout a project, focus group, mock trial record: 0 for 100. Yes, zero victories, 100 defeats. We just—typically doesn’t even last an hour, Steve, and somebody blurts out the name. And then you and I had this recently is, okay, fine, so say the attorneys actually use the, the fake names, and then they’re going through the exhibits during the mock trial and then they forget to, they, they forget to sanitize the exhibit, and then the real name’s on the, on the goddamn exhibit. It’s like, folks! Oh, listen, I, I’ve never seen it fully work. I’ve seen some great attempts. I really, I have seen some fantastic attempts, Steve. I’ve seen a couple mock trials that literally went deep into the fourth quarter and like the attorneys were in the red zone ready to cross the goal line, and then they fumbled. Fumbled on the three-yard line during closing argument of the mock. It’s just like—it’s almost impossible. Um, I understand why folks want to do that. Um, yeah, I have some thoughts on that. Uh, number one: uh, if you’re that worried about confidentiality, go to a surrogate venue, right? Number one. But number two—and I know sometimes it’s the people—I get that you’re trying to protect people’s identities. Other times it’s the entity. It’s like, you know, so our clients like—go, they don’t want to know—or, I’m sorry, we don’t want them to know which hospital it is, so we’re going to use Memorial Hospital, right? Well, I think it—maybe, maybe you want test your hospital’s reputation at the jury level. I mean, these folks are signing, uh, extraordinar—I mean, we’ve showed attorneys our confidentiality contract. It’s really, really thorough. Um, we figuratively, sometimes literally, beat them over the head with it, uh, as far as the importance of the confidentiality. Um, and I know it, it makes certain people, uh, paranoid, but in—I mean, in most cases though, I, I, I think you should, I think you should just use the real names unless it’s some exceptional circumstance. What, what have your experiences been?
[08:38] Steve Yeah, that’s been mine. Other than the fact that it becomes really difficult and we’ve seen a lot of good attempts and get really close, um, or we’ve seen them where they screw up at the very beginning. But I mean, I think the biggest thing to your point is you might want to test who your client is. I just did one recently where we didn’t tell them who it was to see how they got a read, and then we turned around and told them who it was because initially the thought was, well, if they know who this is, it could be bad for us. But in this situation, it was actually good for them because they found out that people had a positive view of this entity. So, knowing that it was them was actually a positive. So, I think I always would err on the side of going with real names for several different reasons. But I think even more so to your point, if it’s an entity that it might actually be good for you, then you’d want to know, or bad, you’d want to know.
[09:28] Bill Yeah, I mean, I think, you know, I mean, if your adversary is doing a focus group, which they probably are, um, what, what do you think they’re doing? Right? Right? And so, because I think, listen, so for example, you’re a plaintiff attorney and you got a lot of time and money in the case. You’re probably going to use real names because you want to figure out, “Wow, is the reputation of this hospital system gonna be too much for me to overcome?” Right? So like on the other side, you—they don’t give a—um, I think it’s, I, I think it’s just this, just a little bit of paranoia probably on the defense side that, um, we’re—how many times have you heard, “I, I, the—we don’t want the plaintiff attorneys hearing about this”? Yeah, right? What is this? I, I don’t understand that.
[10:20] Steve I guess there’s been thoughts where maybe some—one of the potential jurors runs and tells the plaintiff that they did a mock trial or a focus group is with the thoughts, at least from what I’ve—
[10:28] Bill People—listen, people can’t stick to an exercise or diet program, much less have the effort and energy to go reach out to plaintiffs. I mean, come on, Steve! We, we have apps on our phone to bring food to us because we’re that lazy.
[10:45] Steve Yeah, don’t even get me started on that rant though.
[10:46] Bill But people, people are gonna—”I gotta run to the plaintiff office and rat out, rat out this hospital system for doing a mock trial.” Get out of—oh, I almost dropped the F-bomb.
[10:57] Steve Yeah, don’t do that.
[10:58] Bill Oh, I almost dropped the F-bomb. It’s close, close.
[11:01] Steve Well, let’s move on before you do drop the F-bomb on this. We’re start—we’re starting off good. I can only imagine as we—
[11:07] Bill I wonder if we could sneak it by. We—if we just didn’t tell, just kind of snuck it by.
[11:11] Steve They always find out. All right, second question. We’ve been doing a lot of—you know, we do in-person mock trials, in-person focus groups, you know, we’ve been doing our online case assessment panels, and one of the questions always comes up is: Do I advocate or do I present neutralyl? So, couple things on that, and then there’s also some pitfalls on advocating neutrally as well. Um, but we’ll start with the fact is: What do you think? Advocate, present neutral, or does it depend?
[11:41] Bill Well, I think—I think it depends on the goal of the research, right? Um, if you are in a case assessment mode, you want to explore jury reactions to your case facts and to the arguments. I would say educate, don’t advocate. Okay? Because what you want—I mean, and again, you and I aren’t going to get too far into statistics, but you, you want validity, right? Meaning you want to measure what you think you’re measuring. Meaning you want a clean—I call it a clean read, okay? A clean read. It’s like, you know, anytime you go for a blood test, or you got a pee in a cup, right? What do they do? I mean, they, they clean everything, right? Because they don’t want it contaminated with something else, right? It’s the same thing with this. And the problem is, when you advocate, personalities can contaminate, and you won’t get a clean read. Now the exception to this would be if you’re like pre-trial, you are pre-trial and you are in trial prep mode and you’ve already evaluated your case via the focus group model, which you did not advocate, you educated and you evaluated. And now you want to practice your advocacy skills against a skilled opponent, maybe one of your, one of your law firm partners, he’s going to role play the other side—and you want to prepare for trial by advocating in a mock trial for trial prep purposes. Now I think you’re good. Okay? But I think when you’re in the case assessment phase, the last thing you want are any types of personalities screwing up your clean read. That’s my, that’s my take. Now here’s the problem, which you and I have faced over and over and over and over again, particularly over the last year: You attorneys, we love you, but it’s really hard not to argue.
[13:54] Steve Yeah.
[13:55] Bill Because I’m like, “Just teach like you’re a law professor.” “Like, I can’t! I’m an attorney, all I do is argue.” So yeah, it—so you kind of have to learn how to be an educator, uh, give more of a neutral educational presentation to jurors and take a deep dive into educating them on, you know, what the evidence is, what the facts are. Now to that extent, you certainly want to define the arguments on both sides without injecting argument, right? Because then it—yeah, you don’t emotion or again, any type of persu—you’re—you don’t need persuasion to test the case. In fact, that’s what’s going to screw up your clean read is persuasion. I tell you, I did a mock trial—a mock trial in Chicago, Steve. This is, this is 18 years ago. And a 40-year veteran attorney for the mock trial is going to be himself. He’s defending, he’s defending the hospital system in downtown Chicago, okay? The person who is the role playing the plaintiff attorney was a fourth-year associate. How do you think that went?
[15:08] Steve Uh, I can imagine it was a bloodbath on the defense side.
[15:13] Bill Yeah, three defense verdicts, right? It’s like—it’s like, no. If you’re gonna put yourself in that situation where you’re gonna have advocacy and true argument, you—it really needs to be equal if not even favored towards the—hey, there’s a question for you. I kind of like it when the lead defense attorney in a mock trial plays the plaintiff attorney. I think that’s where you get your best shot. They know the case best. Do you—would you agree with that?
[15:40] Steve Oh, absolutely. I definitely agree that you want—because the goal, right, we’ve always talked about is to essentially give the best plaintiff’s case and even lose the mock trial or the focus group, rather than win it. So yeah, I’m always a strong proponent of whoever that lead attorney is, get him on the plaintiff side because more than likely they’re probably the more skilled advocate. But the other thing I think it does too is it forces that lead attorney to get into the mindset of the plaintiff to see the arguments. Because how many times have we heard these defense attorneys—when they have to play the plaintiff side, they start to see how strong some of these arguments are that when they were looking at it from the defense side they thought they were weak. Once they had to shift the mindset and argue it, they’re like, “Well, maybe this isn’t as weak as what we thought it was.”
[16:23] Bill Yeah, and I—and okay, I’m gonna go on my a little mini rant here. You know, you and I have seen a massive shift from the mock trial methodology shifting over to the focus group methodology. I think this is one of the reasons—I think there’s a couple reasons for this. Um, and I don’t, I don’t mind it. I don’t mind it at all. Um, because number one: I don’t think one type of project is necessarily better than the other. I think that they’re, I think that they’re different types of projects. Um, I’ve heard a couple things, and you know, we, uh—go—there’s a couple of plaintiff attorneys, uh, down in Texas, uh, who shall go unnamed, where we’ve had clients say, “We don’t want to do a mock trial, we want to do a focus group because we know we can’t—we cannot replicate that attorney,” yeah, “in a, in a mock trial setting.” Their personalities just—you can’t. There’s nothing close to it. So, we, you know, we want to test to the focus group model. I also think the focus groups, um, are—I mean, they’re, they’re very jury-centric. They’re, they’re so interactive. They’re town hall meeting style. You’re talking to these jurors all—you know, what people forget, a mock trial is attorney-centric. It’s just attorneys talking all day just like a real trial. Like, you don’t hear from these mock jurors until the very end. And then when you hear from them, everybody wants to get the hell out of there, they’re, they’re exhausted. So, you’re collecting data all day, but you’re not really hearing from them. So, I do see this, um, continued and steady shift towards the focus group model. But again, I really like the focus group model because again, we take persuasion, right, and the advocacy out of it and you take a more educational slant I think you get that more of a the clean read where you’re, uh, eliminating a lot of potential contamination. I mean, imagine doing a $75,000 mock trial and you get [__] data because, because one of the people, right, doing the presenting is not a really good presenter and the other one is, and then all your data comes back, right?
I mean, it’s back to your attorney credibility thing. If you’ve got a major imbalance, it’s gonna throw off the data.
[18:42] Steve Absolutely. So, you know, and another thing we see that throws off the data—one more on this and then we’ll move on—but the idea when you’re doing it neutrally, one thing we always have to remind people is when you’re giving the plaintiff side, don’t say “plaintiff’s going to argue” and then all of a sudden when you start presenting your case, we use a lot of “we, we, we, we.”
[19:03] Bill Yeah, I’ve seen worse slips, but still. Um, that we’re doing a lot of—I, we’re still doing mock trials, but a lot more, uh, focus groups. And I gotta tell you, I think I would say 90% of the feedback, not just from clients, not just from the insurance company or the corporate client, but from the trial attorneys, um, I think far prefer the, um, the, the, the focus group model because of the level of interaction with the jurors. The amount of interaction they get, uh, is just not even close to the mock trial. I think they really appreciate that and like that—they like that kind of constant being able to bounce things off them, the constant questions from the jurors, you know? “What questions do they have?” which you’d never get in the mock trial format. So, I, I think I think both are really important, right? But, but I, we do see the shift towards the focus group and I’m, I’m, I’m all for it. I think it’s great.
[20:02] Steve I agree. You know, sticking with the mock trial/focus group format, you know, a lot of times we hear this: “I have this evidence and I’m not sure if it’s going to come in, and if it comes in it could be bad, but I’m not sure what do I do?” What are your thoughts on this evidence that may or may not come in? Do you, do you include it, do you not include it in a mock?
[20:23] Bill Yeah, yeah. So, there’s two ways to do this. There’s the right way and then the kind of the [__] way. The traditional way is you don’t put it in and then once you’ve collected all your data at the end of the project, you go, “Oh, by the way, right, uh, what if I told you X? How would that change your decision?” That is maybe an example of the worst science possible. I’m not sure that is science, but you, you cannot unring—unring the bell, right? Because it just—that’s just not how people make decisions. So anytime you’re testing something at the end of a project, that’s really not an effective way because once people have made their decisions, they feel certain ways about certain things. There’s an massive order effect on how, you know, each, uh, piece of evidence is delivered. And you throw something in at the end and go, “Well, you know, would this change your mind?” That’s really—it’s, it’s an impossible thing to measure and I don’t think we get very accurate data. The right way to do it is you do the project twice. Now, um, the first barrier to that is, well, you gotta pay for two projects. Well, yeah, yeah, you’re right. But if the demand on your case is $25 million, is it worth doing two projects to figure out how you’re going to try? And it’s not just with evidence that comes in or, or out. Um, it’s, uh, you know, “Do, do I want to, you know, attack—do I want to attack the plaintiff?” right? “Do I want to, you know, from a culpability standpoint, do I want to go after the plaintiff, or is that going to backfire on me?” Well, you know, you do it—you know, do project one and go at it, and do project two and back off and see, see, you know, see if there are differences, uh, in the results. Damages arguments, I think, I think is big. We do a lot of—it’s my favorite type of project. We do these all the the time. I do this by focus group, too. It’s the test-retest model. You know, day one you can test, um, a certain damages argument from both sides and then tweak that to do it the next time, you know, based on the jury reaction from project one. That is the best form of science because that’s how science—that’s how it’s defined. You look at any science, you know, whether it be medical science, psychological science—repeated testing is how you end up getting the right answers. And there’s this—the same applies to, to litigation science.
[23:02] Steve Yeah, and I agree. And you know, in this instance, I also 100% agree. If you can do a test-retest, do it. I mean, of course, sometimes you get pushback on being able to do that. I would always argue in that situation, then you might as well just put it in.
[23:15] Bill Throw it all in.
[23:17] Steve Yeah, throw it in. Rather than—and I wholeheartedly agree that I don’t like the idea that it’s the “what if I told you that.” I mean, we have it too often where we, we do that. And whether it’s about evidence or “what if I told you the plaintiff did this” or “what if I told you the defendant did that, would that change your opinion?” You know, and a lot of times witness or, uh, jurors say no, but you don’t really know because they don’t want to admit—you know, everybody strives for consistency. So, they don’t want to then say, “I’ve been talking about this all day, I made this decision, and had I known that I would have made a different decision.” They can’t even process that in the moment to know whether they would or they wouldn’t. So, you get, you get jurors that say that wouldn’t have mattered, so you think it doesn’t matter. But if you have put it in there, you found out—you would have found out that it might have actually mattered.
[24:00] Bill No, I, I, I, I totally agree with that. And we’re seeing more of the test-retest even in the focus group model. And again, we’ve done some more focused focus groups that are more streamlined where, um, the cost is not the barrier anymore because these are shorter projects. They kind of get right to the heart of the matter and you can do a couple of those and still be under the budget of doing one of these traditional, you know, full-day projects, particularly if you do it virtually. So I think, I think some of the the best strides that, you know, we’re making in the litigation science arena is being able to do the test-retest to figure out—you know, to really scientifically figure out—um, what’s the best way to, um, you know, get our arguments together. What are our best themes? How aggressive can and should I be? What damages model is going to be most effective? Are they gonna, you know, think we’re cheapskates and get mad at us? Stuff like that. Uh, the ability to find those answers, uh, I think is really important and we’re, we’re pretty much doing that every week now.
[25:12] Steve You know, and you kept mentioning about doing things virtually. That’s another question that comes up, right? Do I do things in person or virtually? And this might be whether it’s witness training or if it’s mock trials and focus groups. You know, I think—I’ll be curious, be curious on that because I know a big thing is a lot of people ask us for online mock trials, which we don’t do.
[25:34] Bill Disaster. We try that. We, we tried that. It was epic disaster. Um, [__] data. And if you’re doing—if you’re doing online mock trials, um, God help you. Because um, I, I don’t—I just scientifically don’t believe in them based on what I saw from our exper—uh, you know, experiments of doing those, you know, around the COVID time. However, what—here’s a couple things that we learned and we’re absolutely—these are absolutely positively true statements. Number one: uh, witness training for deposition is highly effective um, via Zoom. We had great, great success with that. Not a problem. Some exceptions. Some exceptions. Um, if you have a witness that, um, you know, has some pretty severe emotional reactions to litigation and, uh, you—it may be better to be in person just for some, you know, more emotional support, right? Um, that may be an exception, uh, you know, to the rule on that. But you know, otherwise, um, uh, virtual witness training: highly, highly effective. Now, for trial prep? I hate—I hate virtual. I hate virtual because it’s—it’s a different animal. And these jurors are gonna have to talk to these—these witnesses are going to have to talk to jurors in person. Um, so I really, really push for in-person training for trial prep. Um, but, but, but really not for, not for dep prep. So, I think that’s kind of our official uh, stance on that. And I think we’ve—we’ve again experienced great success with how we’re doing things. So that’s why I like to follow with, with the jury research. Um, you know, the other thing that we learned was that doing the focus group research virtually was highly effective. Um, because it’s, it’s—it’s like, it’s like doing a, a staff meeting at our firm or, or the law firm, right? You’re getting 15 people in the same Zoom room and having a discussion. Uh, it’s been highly, highly effective. Now, some of the times you’re going to want to move it to in-person. Okay? There’s going to be some times where you’re probably going to want to do in person. I think the number one time is if you have a complex case that has multiple defendants. You should probably do that in person just because you’re gonna—it’s gonna take more time. There’s a lot of moving parts and you can’t really streamline stuff like that. It’s too damn complicated. And you may even have to go a day, day and a half, two days, right? You get a case where there’s, you know, three defendants? Well, you have to put on cases for all three of those. It’s kind of hard to pull that off, um, virtually because just down the time and it gets really, uh, confusing. And so, uh, that—I think that’s kind of the time where we, we tend to push for the, uh, the, um, the in-person focus groups. And then pretty much, uh, 100% of the mock trials we do are, um, are in-person because, uh, the in-person way and the way the jurors deliberate—as you know, you know as well as I do, Steve—um, when it comes to deliberate—see, not see, if you’re in a town hall discussion, people be honest with you in a, in a town hall discussion, right? But a deliberation is different. And we’ve seen this a number of times where people sit—you know, when you’re physically next to somebody and they disagree with you, well, there’s a lot of personality factors that take over. There are no—there are no keyboard muscles. And people change based on like how people are physically located, you know, in the room. And, uh, human behavior just drastically changes when you’re in person versus when you’re virtual. Like, there’s no consequence, right? There’s no consequence virtually. People, people are different virtually when it comes to a deliberation, you know, type of decision. So, it’s much, much better to do those, um, in person. Whereas, you know, with the focus groups, uh, you’re okay virtually.
[29:45] Steve Yeah, I think you bring up a good point is: yeah, the in-person is a little bit more expensive. People like to do the online because it saves them a little bit of money, but it all goes back to, one, the dynamics of the jurors being in the same room.
[29:56] Bill Yeah.
[29:56] Steve Yeah. And then, it too, it goes back to the data that you’re getting. As you said earlier, you know, if you get data—you know, garbage in, garbage out—is it really worth it on a $25 million dollar case to save a few bucks to do it online versus getting it in person to be able to make sure you have good data and you have, you know, good results that you can use going forward?
[30:17] Bill Yeah. So, I mean, when clients call, we just kind of say, “Okay, well let’s lay out your—like, let’s see what makes the most sense. Not what’s most expensive or, or, or, or what’s cheapest.” You know, what type of answers are you looking for? And then let’s plan—let’s plan the study, you know, around that. You know, Steve, uh, with our more sophisticated cases—for example, if you do have a case that’s more complex, uh, we have just introduced, uh, essentially—I wouldn’t call this test-retest, but um, oftentimes now we are starting with a virtual focus group to just get a read, right? So, I call this the getting the X-ray before you go to the MRI machine, right? And so, the virtual focus group serves as the X-ray, right? You’re getting a basic look at the case facts. What do jurors understand? What they don’t understand? How are they reacting to the dash cam video or the pictures or the police body cam? And getting an initial read on that and then taking those results, okay, and then, then doing your in-person project where you can then tweak how you do it. So, when you do that, um, which is—so the mock trial, the in-person mock trial, the in-person focus group—we’ll call that the, the MRI in our medical analogy. That the, the—the accuracy and the validity and the reliability of that second project will be much higher because you got through all the messy stuff in the first project. And so, I mean, Steve, in your career, how many—this, this is a really tough question for you, but be honest. I mean, how many just like really [__] mock trials have you seen because that was really the first time they were testing anything and they spend a lot of money and you figured out, “Wow, jurors didn’t understand much of what you said because you didn’t really know how would they react”? Where if they would have done the—look, kind of the mini, for lack of a better term, the mini focus group first, they would have figured that out, right? And so, then when they do the in-person project that’s longer, it’s more expensive, they would have done it in a much, much better way because they did the first project to figure out, you know, “How did jurors think about this?” How often does that happen with you?
[32:38] Steve Oh, happens more often than I would like to say, uh, because I think it ends up being a lot of the recommendations we say is: “Jurors didn’t understand A, B, and C. You need to spend more time educating them on that.” But to your point, you could have found that out before and then educated them on it and used your mock trial more informative.
[32:56] Bill Yeah. I don’t—the—I think the last thing any client needs or any trial attorney needs is more questions than answers after those, um, after those projects. And everybody we’ve worked with, at first, I think there’s kind of some grumbling like, “Oh god, we got to do two projects.” Well, yeah! And then by the time you get to the end of it, you know what everybody is saying, uh, particularly the trial attorneys—where, you know, “Boy, I’m so thankful we did that first mini focus group because, wow, that really changed the way, you know, we saw this case based on the jury feedback.” And so, when we did the in-person project, we were way ahead of the game and we got—you know, we got better results because we, we knew how to present the information in a more, you know, understandable way.
[33:45] Steve Yeah, I had—I, I mean, I, I can think of one case specifically where an attorney did that after doing one of our initial onlines where they said, “Got a lot of different things, analogies I can use, things I can build in to my arguments at the mock trial now because I know what resonates and what doesn’t resonate with them.” So yeah.
[34:02] Bill Yeah, yeah. That’s—that’s certainly important stuff. So, there’s—there’s the way to get these answers. You just have to—you have to, you know, work with your consultant and, and make a good plan.
[34:13] Steve Speaking of answers, too, you know, I’m going to switch gears a little bit to witness training. And I know you texted me not too long ago about some, some issues, um, on that. This goes to document review—how much your witnesses should know. You know, you know, I think we’ve had conversations before where some attorneys will say, “I don’t want my witnesses to know anything. I want them to go in there and know just a few things so they can say ‘I don’t know’ to a lot of things,” you know, versus taking the time to go through and show them stuff so that they can reduce the “I don’t knows.” Now, we’ve talked about that within reason on whether—how much they should know and how much they shouldn’t know. But what are your thoughts on setting up witnesses to not have answers to questions that plaintiff attorneys will then use against them?
[34:54] Bill Well, I text you this morning. Yeah, and so here’s my witness training this morning. We’re not going to mention names here. I’ll use fake names, like the first question you ask, right? Fumble it on the goal line. So, I’m on this witness training and this is phase two, right? So, this—now this is—this is—so the answer is different depending on what type of witness. This is a corporate rep. Okay? You, yeah, you got a list of topics, you better have your answers, right? So, we get on for session two. So, the witness was told, you know, two weeks ago, session one: “Hey, I’m sending you the ShareFile. Look through the policies, look through the procedures, the training manual. Here’s the three employee files that we’re talking about, blah, blah, blah, blah, blah.” Witness gets on today and says, “Yeah, um, I didn’t get around to reviewing the documents. And then I tried to log on and print and like, some—it wasn’t letting me in. It told me to create a password. I tried to create a p—it didn’t work.” So, this witness today—this is today, a couple hours ago—was just completely unprepared. So, the attorney just pretty much went Bobby Knight on him. Or here, let’s—let’s keep it modern. He went—he went Tom Izzo. There you go, your buddy. He went Tom Izzo on him. And I mean was just like, “Joe! Joe! Like, your dep is in eight days! Do you know how—like, you—you didn’t call me when you couldn’t open the file? You didn’t—you didn’t call me! Like, you didn’t call!” And it ruined the entire session this morning because the attorney was just visibly upset and the witness was not ready. So now, you know, now he has to figure out the technology part to get things printed out and stuff like that. Then he’s got to review. So now they’re going to be cutting the close. Now they got to have another session to go over things that he was not prepared for. So, I guess my answer is when it comes to a corporate rep? Yeah, you better—you better have your together. And you don’t want any surprises. And plus, you’re getting the list of topics—you’re going to get, um, you’re going to get throttled if you’re, if you’re not ready on documents. Now, with fact witnesses? Yeah, I’ve seen many of defense attorneys—again, listen, you and I are not attorneys, so I mean, it ain’t up to me and I really don’t have a dog in this fight. But I’ve seen many of trial attorneys purposefully, strategically say, “I don’t want you reviewing anything because I don’t want you to have to answer questions on every—” you know, because if you review it, you’ve got to answer. So like for example, I know a lot of attorneys—I know this has come up with you—where a different witness has been deposed before them and oftentimes defense counsel be—will be like, “We can talk about that testimony and that’s protected by attorney-client privilege, but I’m not going to show you the transcript because then you’re going to have to answer questions if you’re questioned that it’s part of what you reviewed.” So, I could see that. In other cases, same exact situation, I’ve seen defense counsel say, “No, I—I—I want you to review the testimony because I want you to read what the Q&A looks like, okay? I want you to get familiar with how this questioner asks questions.” And then they allow them to, and I guess they take the risk that they may be, um, they may be—they may be questioning. I guess my concern overall with a fact witness is that I would imagine a good plaintiff attorney is going to put documents in front of them. And if they haven’t reviewed them, a good plaintiff attorney is gonna say, “Okay, well here, review it now. Take a couple minutes. Yeah, yeah. And review it, and I’m gonna ask you questions.” And kind of force in those questions anyway. I guess when it comes down to it, I’m pretty risk adverse when it comes to witnesses. Um, I think I would—most cases, as a consultant, I think it’s better for the witness. I don’t like surprises, Steve. I don’t think—I don’t think the human brain responds to surprise as well. And if—if witnesses aren’t prepared and then they’re being asked to review a document for the first time in the middle of a dep, I think that puts the—that puts the witness in a very difficult position. And then like you were saying, uh, if the witness says, “Well, I can’t comment on that particular document because I’ve never—I’ve never seen it before,” I mean, theoretically I guess they could say that, but does that—does that hurt their credibility? I think it’s a tough situation that I think every defense counsel probably, uh, addresses strategically on a case-by-case basis.
[39:41] Steve Yeah, and I think that’s the biggest thing. You know, I leave it up to the attorneys to make that decision. But at least, you know, from our perspective of what we think is, you know—and I wrote a paper on this about the whole idea of how jurors view “I don’t know” responses. You know, obviously in certain instances it’s—it’s expected to be a fair response. But at the same time, witness or jurors are going to not like the fact that the witness said “I don’t know” 65 times. And I will go back—and I won’t name names—but we both—of you and I have had an experience where a savvy plaintiff attorney tried to go in front of a jury and say, “Ma’am, remember how many times you said ‘I don’t know’ in your deposition? Yeah, would you—would you be surprised to know it was 75 times?”
[40:21] Bill Yeah, you know, the—so it can play—it’s really a double-edged sword, right? So, I guess I—I guess my final conclusion on this is: you gotta weigh the pros and the cons, right? I guess I lean towards the side of: I’d rather them review it and ask questions about it than not review it and then, when they—if they do have to review it in the moment, they can make a mistake because they’re nervous or they’re shocked by the document because they’ve never—you know, they’re threatened by it. Uh, or they rattle off 73 “I don’t knows,” right? And you know, and so—well, at least you’re—you’re not getting inaccurate answers when you say, “I don’t know,” it’s just actually can look really bad. So, it can play both ways.
[41:01] Steve Exactly. I got one more for you and I’m going to cut you loose here. But I’m going to switch gears now to actual trial. And you know, I heard not too long ago where someone was saying that they were told by someone in the litigation psychology community, um, that jurors make up their decisions by opening statements and then everything that happens after opening statements is really not important to the case. What—what are your thoughts on that?
[41:28] Bill Well, that’s—that’s idiotic.
[41:30] Steve That was kind of my respon—
[41:31] Bill So let me tell you—let me tell you again, like the things you and I hear, which we just know is just total—is amazing because we happen to do this for a living. We—we have all the answers to these questions. So someone had said that, you know, “I think jurors make—” this is—this is during a mock trial, like during the lunch period when one of the attorneys—we’re all eating lunch—the attorney says, uh, “Yeah, you know, you jurors make up their minds after opening, right? I mean, every—everybody knows that.” And the other attorney goes, “I disagree.” And I’m like, oh, here—I can’t wait to hear what’s coming, right? Because I think maybe the correct answer would come up. He goes, “No, no, no, they make up their minds in jury selection.” I’m like, oh, here we go. It’s worse! So, I hate to—hate to be the bearer of bad news. Here’s—here’s what we know, right? Number one: in both jury selection and in opening statements, jurors certainly start leaning in a certain direction. Absolutely. But are they anchored into that lean, uh, after the opening statement process? Absolutely not. We see—we see jurors, because we take these measurements, jumping around like jackrabbits during these witnesses, right? And then you get to a certain period, and you can just see visually, right? You see the data—I guess what I would say is, you see the data calm down, right? You see the—like, you see them jump around like jackrabbits and then you just—it kind of settles in. And then they’re—and then they’re pretty much for the most part, I’d say 80% of them, 85% of them are pretty much locked in. And this is before closing. So that’s kind of another issue that I said—and I say this during the opening statement speech CLE that I give, which people seem shocked—but it’s—I tell them, I’m like, “Listen, people aren’t making any decisions during your closing.” I hate to—hate to break the news to you, right? Um, they’ve made up—most, vast majority of them have made up their decision, uh, by the closing. And what you’re doing in the closing is you’re just—you’re trying to give your jurors ammunition to use in, in deliberation. You’re—you’re—you’re not convincing anybody of anything in your closing argument. They’ve already gotten there. So, the answer is: during the witness testimony is when these folks really, um, take a position and then finally, uh, stick with it. Uh, definitely lean during, uh, voir dire and especially the, the openings. But yeah, it’s—it’s—and that’s why the witness testimony is so important. And if that goes well for you, you can be in really, really good shape. But even with the great O—you’ve seen this in our data. You could have a spectacular opening statement and then your witnesses [blank] the bed and you’re—you’re done. You’re—you’re done. I mean, you are done. And that’s with a great opening statement. So, you gotta—you got to look at all this stuff and how it impacts each other.
[44:34] Steve Yeah, and I think, you know, there’s probably some jurors who will make up their minds initially, but those are the ones we talk about in our presentations: these cynical jurors or the highly arousable—yeah—jurors that will make it—make up their decisions early. Then that comes down to getting rid of them during voir dire. But more often than not, yeah, we see the flip-floppers, and however you want to name them, uh, on our data: back and forth, back and forth, back and forth, right up until the very end. So yeah, I always—I always laugh when I—when I hear that. And then when I heard the fact that, you know, someone who does what we do, not at our organization, had told an attorney that and, uh, she—she asked me about it and I kind of gave her a similar response to yours, that it’s complete BS. But and I think you—you—you make a mistake doing that way if you—if you think that that’s the way things actually work, right? Because then you’re focused so much on your opening statements and then you’re figuring, “Well, it doesn’t really matter how my witnesses perform. It doesn’t really matter what evidence comes in. It doesn’t matter about this other stuff.” I mean, the ship is sailed by opening statements. It’s kind of a fatalistic view to, to go into trial, which is incorrect. So, you’re setting yourself up for failure there, too.
[45:36] Bill Yeah, I would even—and I would argue if—if you had a mediocre opening statement and really good witness testimony, you’re going to win. You have a phenomenal opening and your witnesses suck, you’re going to lose.
[45:54] Steve Agree.
[45:55] Bill So, uh, it’s—it’s best—it’s best to have both, right? It’s best to have both. But, uh, but yeah, it’s, uh—and that’s why we test. You know, the other good thing about the way we do the testing is you can compare, you know, how the data is moving from witness to witness, right? And so that—that’s very telling. So, if a witness testifies, right, uh, in the mock or the focus group—we play video or, or they’re even live in some instances—and, you know, half of the jurors move to one side? That—well, that’s a pretty telling result that that witness had a huge impact, whether it be positive or negative, right? But then you get a witness that maybe you think’s really important and two people move and no one else does? Well, what does that tell you, right? So that’s another, you know, reason why you want to test these cases is, you know, which—which witnesses are actually moving the needle? Because you think you know, but you don’t know until you know. And that’s one of the main things that we want to measure in our projects.
[47:08] Steve Yep, good point. I’m gonna—I’m gonna finish it on that. Yep, thanks, Bill, uh, for coming on, doing some viewer mail. It was kind of nice to flip—flip the script a little bit here and put you under the gun on some of these. Uh, thanks to our listeners and everybody who’s joined us. Those of you who watch on YouTube: like and subscribe on YouTube, that helps us out. And always go to courtroomsciences.com. All of our blogs, papers, podcasts, all that is up there. Feel free to reach out to me: swood@courtroomsciences.com or Bill: bkanasky@courtroomsciences.com. And join us for another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences.
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