Bill Kanasky, Jr., Ph.D.’s second part of our 4-part series on a sophisticated approach to voir dire. Bill talks about emotional persuasion resistance and the goal during voir dire of inoculating jurors against emotional appeals. Bill shares example questions and stories for how to inoculate jurors against emotional appeals by the opposition during trial and how to identify jurors you want to keep and which you want to strike. Bill also talks about anchoring and how to approach the concepts of anchoring, high dollar awards, counter-anchoring and social inflation, all during voir dire.
Full Episode Transcript
[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky. Welcome to part two of four of our advanced voir dire series. This is serious stuff, ladies and gentlemen. Serious stuff. Now, in episode one, if you remember, we covered some of the cognitive flexibility, cognitive fit for the jurors, right? Uh, confirmation bias, things like that. Okay, important stuff.
[00:51] Bill Now, we’re going to get to some of the sexy stuff today. You’re going to like this. So, in part two of four, we are going to focus on emotional profiling. Okay. So emotional triggers. Uh, we’re going to go over anchoring here and some defense framing. This is a different section. So, let’s start off with um, the topic of um, emotional persuasion resistance. Okay. Emotional persuasion resistance. Now let’s define this. This is super complex. Super uh, deep into psychology. Very, very powerful. Okay.
[01:28] Bill Now, this is also called the “they got me” metaphor. And what I mean by that is here’s what we’re trying to do. The whole purpose of inserting this emotional persuasion resistance, right? You’re planting a seed. Okay? You’re planting a seed. The goal is to inoculate against the emotional appeals, particularly reptile edge stuff. Okay, inoculate. How does inoculation work? Right, think of a, again, a controversial topic, but the best example here is um, is a vaccine. What you’re doing with the vaccine is you’re giving a mild form of the virus. Okay, which trains your immune system to build up resistance to the virus. So, when they get exposed to the full-strength virus, boom. Okay, immune system kicks in.
[02:26] Bill Okay, that’s how a vaccination works. You can vaccinate quote-unquote uh, against uh, emotional appeals. All right, this is really, really deep stuff. So, let’s let’s talk about this. Let’s talk about the questions how we’re going to do this because think about this. You know they’re going to get emotional arguments here from plaintiff’s counsel. Okay. So, your job in voir dire, okay, is to inoculate, right? Inoculate and create emotional persuasion resistance. We want to build up psychological resistance. This is absolutely necessary. Okay.
[03:16] Bill Now, what are some questions here? All right. Now, I, now a couple different examples you can use here. Okay. Because you got to talk about emotion. I like talking about things like emotional shopping. Okay? For example, remember you always start off, remember back, tell stories about yourself. Remember, you want to make yourself vulnerable and share personal things so people will share personal things with you. That’s how you build trust. That’s how people are going to want to be open with you. You’ve got to be vulnerable yourself.
[03:53] Bill So you sell, so for example, here’s the question: Have you ever looked back at something that you bought? You bought something and then you got home or that afternoon or a few days later you go, “Oh man, they got me. They got—I didn’t need this. I bought it anyway, man. That salesperson, they got me.” Okay? And then immediately after that, go for example. Okay? And then tell the story.
[04:27] Bill Tell the story how you went to Target and you had your list of five things. You had your list of five things, but you walked out with 20 things. And then you got home and you were kicking yourself going, “I had a budget. I had a list. God. But when I was in Target, I saw something and it got me emotional and I had to have it. And then I saw something else and oh no and I—now my emotions doubled. So, I bought everything. And then I got home. I was like, gosh, I—I just—that was stupid. I didn’t need this stuff. I made an emotional purchase. Who’s been in that situation?” Right?
[05:11] Bill That’s a good example to get people talking about emotions, right? Don’t make it something harmful or hurtful. Do something from everyday life. I think shopping is a really good um, example here. Shopping is a really good example here.
[05:23] Bill Another thing is you can bring in uh, with shopping. Uh, I’m going to tell you my story. This happened last week. This happened last week when I had a plan and it epically failed all due to emotion. So, my son’s car, my older son’s car, Jeep Cherokee, finally exploded. Not like exploded. Uh, the transmission—it blew—the transmission exploded. Okay. Uh, there’s fluids all under the—like I had had—I had to have this thing towed to the dealership. Now my son’s car is a beater. I’ve been dumping a couple thousand bucks a year into it just to keep it alive because I didn’t want to buy him anything else until that day. I wanted to get the most out of this car until it exploded.
[06:12] Bill The car—the transmission exploded. Guy calls me from the dealership. I go, “What’s wrong with it?” He’s like, “It exploded.” I go, “Good.” So, I go, “I want you to keep it. I’m done with it.” And he goes, “Listen, I’ll give you 1,500 bucks for this thing. We could use all the parts, tires, stuff like that.” You could use that as trade-in value because, you know, I—I have a 23-year-old. He’s a full-time college student. He’s—he’s got things to do. Plays in two basketball leagues.
[06:37] Bill So, we go to the car dealership and I looked right at him. I go, “Here’s the budget. Number one, you’re getting a used car. Number two, your window—because I don’t—I don’t want another beater. I want something with more reliability. Now, I go, I want something between, you know, 18 and 25 grand. That’s your window. Okay. We’re not going one nickel over that. We’re not going one nickel over that. Do you understand?” He goes, “Yes.” I go, “Okay.”
[07:07] Bill We start looking at cars between, you know, he’s looking at a couple of uh, newer uh, used but newer Jeep Cherokees, right? Looked at a couple uh, Dodge Ram pickup trucks used, 18-25 grand. But then it happened. I saw the look on his face. It was like uh, do you remember the Blues Brothers? Do you see the light and like John Belushi is glowing? That’s what this kid starts doing. He started glowing in front of me. I’m going, what the hell’s going on?
[07:40] Bill And then I turn my head to see what he was looking at. And it was a 2003 Dodge Charger, used. Only had 10,000 miles on it. And like drool is coming from his mouth. He’s—he can’t talk. He walks up to it. Gunmetal gray, thing is nasty. It is nasty. And he looks at the sticker and it’s $37,000.
[08:10] Bill Do you see my predicament here? I walked in with a plan. I walked in with parameters. I said to myself, “No emotional purchases, got to be used. 18 to 25, that’s it. Laying down the law.” And what do I do? I walked out of there with a 30,000—$37,000 Dodge Charger. Why? Emotion. Emotion. I saw that look on my kid’s face. I was done. He fell in love with it. He had to have it. He gave me the puppy dog eyes, the whole thing. Short of begging me for it and getting that down on both—hand, like—hands and knees, I saw—I saw this kid’s desire. I gotta tell you, it melted my heart.
[09:11] Bill So, what did I do? I threw my parameters away. I love my son. Now, he’s paying for half of this. Little does he know. I’m going to get him on the back end of this deal. But I threw out my logical plan and went with the emotional and um, walked out of there with a 30,000—$37,000—uh yeah, 37 grand Dodge Charger. Ladies and gentlemen, anybody here done that before? Something similar.
[09:48] Bill That’s the type of story that’s going to melt hearts on the jury and get people to fall in love with you. Why? You’re showing you’re vulnerable. You defense counsel, you’re showing you’re vulnerable. And that story right there—now you’d want to condense it a little bit. I get—I get to talking, right? Or maybe—I—hey, if you have plenty of time for voir dire, I would—I would—I would build that up just like I did. And I gotta tell you, my son—my son and I went home and I could see the look on his face and he’s showing his friends. He gave me the biggest hug in the world and then an hour later came back and just hugged me again and said, “Thank you.”
[10:25] Bill God, I’m gonna cry right now. Geez, this is—I get emotional talking about it, right? That I love my son. But I made an emotional decision. I violated all my parameters. Now, ladies and gentlemen, here’s the problem. You’re going to be asked to do the exact same thing in this case. That’s what the jury’s going to be asked to do. They’re going to look at me—I’m tearing up right now. I got so emotional. The juror is going to get an emotional pitch, and you may have a plan to deal with it. But I had the plan at the Dodge dealership and me, I epically failed. You ever been in that position?
[11:05] Bill How did you do? Were you able to hold down the law? Did you lay down the law and stick with your parameters and tell your kid, “No, I said 18 to 25, suck on it. Deal with it.” Or did you make decisions like me? Raise your hand.
[11:25] Bill We accomplished several things here. Number one, everybody’s gonna be dying to tell you their story. Yeah. I’m just telling you, people will be—everybody’s gonna be raising their hands because they’re gonna want to share their personal information cuz you just did. And they’re going to want to do one of two things. Say, “Yes,” juror number five is gonna say, “Yes, I was a complete idiot just like you. I fell for it, too. I had my plan and I got emotional. I fell for it.” Ah, juror number five. Yeah, you’re—you and I are in the same boat.
[12:00] Bill But then here’s the other thing—juror number nine’s going to raise their hand and go, “Oh, no, no, no.” See, they want to prove you wrong. “No, no, no, no, no. I was in a similar position. My kid wanted some Xbox or PlayStation. And I gave them a limit and they begged and they begged and they begged and I forced them. I got my way. Now, they weren’t happy, but I stuck to the law. The law I laid down. I stuck to the parameters.” Now, do you see the two types of jurors? Do you see what we’re doing here, ladies and gentlemen?
[12:35] Bill By just doing that, you know exactly who you want to keep and get rid of on this jury. Now, for hell, hell, that one question. If you—if got stuck with one question, judge, hey, you’re in federal court. Judge says 15 minutes. I’d ask that. I’d ask that question. Everybody’s been in this position before. Everybody. It’s typically with like a big purchase, some type of money situation, which is what they’re going to do on the jury, right? A sales situation where they got emotional and they—they gave away—they gave away money, money they never intended on giving away.
[13:22] Bill But you are going to have people—then you have to get okay now. Okay, I’ve heard these stories. Is there anybody here that’s done the opposite and like your kid got mad at you or your wife—your wife wanted this big vacation, and she wanted to go to Alaska for three weeks and you said one week and she said no, three week. Who won? Who won? Did you win? I want someone to hear where they won this battle because I—listen, ladies and gentlemen—I epically lost this battle. I fell for it. I—he got me. I got emotional. Who here’s won the battle?
[14:04] Bill See what we’re doing? You see, people will be dying, dying to tell you their stories. And look at what you’re going to learn now. Art and science, lot of psychology going on here. Why? Because you’re camouflaging the situation of what it’s—the exact situation they’re going to be in as a juror in this case. And that’s what you end with on this topic.
[14:22] Bill You go: “Now, thank you for all the feedback, ladies and gentlemen of the jury, guess what? Your job as jurors in this case, it’s going to be the same situation. You’re going to get the law from the judge. He’s sitting right there. She’s sitting right there. But then you’re going to have that emotion from the plaintiff. You’re going to be in the same situation. Do I stick to the parameters, or do I let emotions control me?”
[15:02] Bill And then you can ask your follow-up questions on how they feel. I wrote the paper on the 1 to 10 confidence. So, right there you could go, “Now on a scale of 1 to 10 on confidence, 0 to 10. Zero means zero confidence. 10 means full confidence. Now you’ve all told me your sto—yeah. Raise your hand, right?” Or—or you could go about one by one. Get their rating on their confidence level to stick to the law and the parameters versus bending out of emotion. This is how you do it.
[15:35] Bill But do you see the setup and the work I’m doing here? And I’m getting a little animated. I’m getting a little em—like I’m actually getting emotional during this podcast because I’m trying to be authentic with you. This is how you do it. You’ve got to get inside people’s brains, but they’ve got to let you in. Okay? That’s why you’ve got to make yourself vulnerable. Have your own stories. Okay? And if you made a mistake, say, “I blew it. Has anyone else here ever blew it?” They will be dying to give you information.
[16:11] Bill All right. Boy, that—boy, we talk about emotion here. I’m getting emotional. Okay, let’s get to the next area here. Uh, anchoring. Okay, anchoring. We have to disrupt anchoring. How do we do that? Now, I have a—I have a saying here at CSI. Okay, to prevent a problem, the first step you do is expose the problem. Let me say that again. To prevent a problem, the first thing you do is you expose that problem. Anchoring is a problem. So, what do you do? You teach the—you expose it. Teach the jurors what anchoring is. Teach them how to spot emotionally inflated damages. Make them biased towards—see, most times bias is bad. You can shift around, make them biased towards anchoring.
[17:16] Bill Okay, now here’s my favorite way to do this. I love the concept of using the concept of salary negotiation to show what anchoring is. Now, you could come out, you could flat out come out and say, “Hey, has anyone ever heard the term of anchoring in a financial negotiation or something?” No one’s going to say yes because the word anchoring is really special to psychology and to now litigation. So, you have to describe it, otherwise no one’s going to raise their hand.
[17:41] Bill So here’s the question. Okay. So, have you ever—okay, we’ve all here—we’ve all probably applied for jobs, right? And uh, yeah, and part of that job interview you talked about salary negotiations. Has anyone ever been in a salary negoti—negotiation where you were applying for a job, you purposefully asked for more than you really wanted to kind of end up where you wanted to be, right? Because worst case, you end up where you want to be. Best case, they give you more cuz you asked, right? Anybody ever been in that situation or have done that?
[18:18] Bill You’re going to have people raise their hands. Now once they do, okay, you could talk to them but remember you can always tell your own personal story. I remember my first job, got my PhD, first job in litigation psychology. I—I had never been—I’ve been on job interview before for smaller jobs, but this is big boy job interview, right? It’s my first time going through. I called my father. I called my father. And we talked about what to wear, what to say. We practiced questions. And then he asked me about money. And he’s like, “Well, what are you going to ask for?” I go, “I—I don’t know.” He goes, “Well, what do you want to make?” Made up a number. Yeah. $100,000.
[19:08] Bill He goes, “You want to make $100,000 at this job?” I go, “Yeah.” He goes, “Okay, you’re going to ask for 130.” And I went, “What?” He goes, “That’s how you do it. That’s how you negotiate because if—if they drag you down, you’re going to end up at the 100, maybe even more because that’s how you negotiate. You always go higher than you really want because then you end up closer to where you want to be. That’s called anchoring. Anybody ever heard of this? Or you’ve done it yourself in a negotiation, in a job, or maybe you’re purchasing something?”
[19:46] Bill Okay, expose the—if you want to prevent a problem, expose the problem. Okay, now this is where things can get a little sticky and a little ugly, right? Well, you’re going to hear about, you know, numbers, financial numbers in this case. Okay. If an attorney did that, like a plaintiff attorney, what would you think about using such a tactic with people like you on the jury? How would you think about that? Objections may be flying. I don’t know why that’s objectionable. Okay, but that’s one way to expose it.
[20:34] Bill Or you keep it more general. What do you think of that tactic overall? Do you think that happens in other areas of life? Okay, you got to kind of get it into legal, expose it because listen, once this genie is out of the bottle, it’s not get—I mean, plaintiff’s counsel is going to flip out when you do this. You have to expose it. Okay?
[20:59] Bill Now, you can work some other things in here. So, you know, you’ve all heard about uh, really high numbers in lawsuits, right? Nuclear verdict, stuff like that. When you’ve heard those really, really crazy high numbers, like—like what goes through your head? Do you think tactics like this that we just—do you think maybe those were at play here? Okay, now we’re—okay, we’re not just stacking the deck in your favor right now. We’re dealing cards from underneath the deck. Your adversary is not going to be happy with you.
[21:31] Bill Um, now I think in many, many courts and many judges you could totally get away with this. Others maybe not. Again, you cannot put the genie back in the bottle. So, if it gets objected to, I really don’t give a—because once this topic comes out, this is going to cause trouble for plaintiff’s counsel because you’re exposing the—You’re exposing the problem to prevent the problem because the moment numbers come out of his or her mouth, what’s every juror going to be thinking? Anchoring. Yeah. Yeah. Yeah.
[22:11] Bill This is the big leagues here, folks. This is the big leagues. You want to prevent this stuff—you—I’m not saying play dirty because I don’t think any of this is dirty. It’s not. It’s totally legit. Anchoring is a psychological concept. It’s proven science. It’s used in all kinds of negotiations, including salary. Nothing wrong or unethical about that. No one’s going to like it except you. Okay. Expose the problem before it happens and then get a discussion going.
[22:55] Bill Now, how deep you want to go into the discussion, that re—that remains to be seen. That’s up to you. What you can get away with. But at the very least, if you got that salary negotiation thing out there and then connect it to litigation: “Would you think some attorneys, like you’ve read about these big verdicts, ladies and gentlemen, do you think maybe some of these tactics were going on there? What do you think?” Then get the jury to spread this around. You—the—this genie is not going back in the bottle. And then any time damages numbers come up, what’s the first thing that’s going to pop in their mind? Anchoring. Okay.
[23:40] Bill And if—if the objection happens, it gets sustained. Who cares? Remember, if you told the jury, “Do not think about blue elephants,” what’s the first thing popping in—their blue elephants are popping in their mind. You like psychology, don’t you? Okay. If you want to prevent a problem, expose the problem because the likelihood of it happening down the road drops if you expose it now because it really disrupt—this is very disruptive voir—this is disruptive voir dire.
[24:23] Bill Now, this door will boomerang on you and come back and hit you upside the head if you’re not careful because guess what? You’ve got to cover counter-anchoring. You’re going to do the same thing, and you have to expose it. Okay. What’s the problem here with counter-anchoring? What’s the problem? That you get perceived as a cheap-ass lowballer. So, you’ve got to tell them that you are going to counter-anchor because it’s part of your job and that this number that you provide is helpful for the jury because it’s a different perspective. It’s not a concession, it’s a perspective.
[25:18] Bill Okay, we have to reframe all this stuff and you got—like there’s no way out of that. Like you got to do this, okay? Because if they think you’re a cheap lowballer, you’re in big, big trouble with whatever number you put out. So, how do you get around that problem? Expose it. Here’s what I’m going to do. They’re going to give you one big-ass number. I promise you they are. I’m gonna give you a smaller number, ladies and gentlemen, because I think that’s what the evidence is gonna show. When I do that, who thinks that I’m just lowballing?
[26:00] Bill Let me give you an example. Now, you go into your personal story. Listen, which is what I should have did on the car. Now, this is good for uh, car and house purchases where negotiation, right? Because now you’re doing the opposite. You’re counter-anchoring, right? So, the car. So, see what I should have done, which would have created a bunch of tension in my life with my son. But with any car, right? You can lowball on an offer.
[26:28] Bill I could have went in there and go, “Hey, I only have a budget for—I want the 37,000 car. I want that for 25.” And you’ll lowball the salesman. And they—they’re going to laugh at you on that. This happens with houses all the time. See a house for sale for $500,000. You’ll see offers coming in at 400. I got 400 because maybe you have a motivated seller. You don’t know, right? But that’s lowballing, right?
[26:51] Bill You got to expose the problem. What do you think about lowballing? Do you think it’s smart or do you think it’s deceptive? How about anchoring? You go back to anchoring. Do you think anchoring is a brilliant tactic to use in a courtroom or in a negotiation? Or do you think it’s playing mind games and head games, and you don’t like it? See what they think about it. But again, you can’t put the genie back in the bottle.
[27:20] Bill Okay? Remember, your number is not a concession. It’s a different perspective that’s going to help the jury evaluate the case. That’s why I’m giving you a number. It’s my job. I’m not conceding anything. I don’t, in fact, I don’t even think you’re even going to get to this question. You may not, but it’s my duty to my client to give you a different number because we have a unique perspective on this. We think the evidence is going to show that if you decide to award damages, this lower number is extraordinarily fair and reasonable. Okay? You got to expose the problems. Okay, you want to—you want to avoid problems, expose the problem to prevent the problem.
[28:12] Bill Because what you want in the deliberation room and what you want when you give your counter-anchor is you don’t want people going, “This guy, this person, this woman, this man is a lowballer. What a cheapskate.” Because you’ve exposed it already. You’ve told them that’s not what you’re doing. You want them to say in deliberations, “Wow, that’s an interesting perspective. Interesting, huh?”
[28:48] Bill All right, let’s wrap this up with uh, finish uh, on this damages topic. Now, social inflation. I’ve never heard of any attorney asking about social inflation in jury selection. Why the hell not? It’s what everybody’s so damn worried about. You want to avoid a problem, expose it. Okay? Expose it. Now, you could ask, “Who here’s heard of social inflation?” No one’s going to raise their hand. That’s a litigation term. Really, it’s an insurance term. Okay? You have to describe it.
[29:22] Bill Now, don’t say the word insurance. You’re probably going to get in trouble. How would you describe it? Right? Here’s an example of a question. “Do you think excessive damage awards like you’ve read about awards in the news, right? Big crazy awards, right? Large, large amounts. Okay. Do you think that maybe those—does anyone here feel that maybe those types of awards over and over and over, that those have a—a negative impact on society as a whole? Like for example, do you think it changes the prices of things and goods and services for the rest of us, these high—do you think there’s any correlation there, relationship, or do you think there’s—there’s no relationship there?”
[30:12] Bill Oh, I like that one. Oh, I like that one. Because now you’re planting a seed of—wait a second, there’s a consequence. There may be consequences to society. You’re reverse reptiling them. Remember the reptile people, the edge people are all society, society. You got to protect society, keep them safe. Here, you’re reverse reptiling or reverse edging, depending on how you want to call that.
[30:36] Bill “Have you ever thought that maybe these high damage awards, that they affect your local community? Maybe with the prices of things, prices of services. Who here thinks that may—that may be true, or who—who here thinks that’s unrelated? Let’s—let’s have a discussion about this, ladies and gentlemen.”
[31:04] Bill Wow. Wow. You’re doing some serious, serious damage here. Okay? Because now the jury when they’re in deliberations are forced to think about this consequence. They cannot not—”Do not think about blue elephants.” What’s in your mind right now, ladies and gentlemen? It’s blue elephants. You are forcing them to consider the consequences of excessive damages.
[31:44] Bill Okay, remember the theme here is maybe these big verdicts have ripple effects economically to others that aren’t even involved in the case. Anybody think that? It’s why it’s called social inflation. But you can’t say social inflation. They don’t know what the hell you’re talking about. You can’t say insurance premiums. That’ll get you in trouble. You talk about just the cost of everyday services and goods and keep it general.
[32:15] Bill Does anybody here think that there’s a relationship there? The cat is out of the bag. The genie’s out of the bottle. It cannot be put back in. So, you’re dropping serious bombs with this stuff. Serious bombs. Okay. Well, I’m getting emotional [Laughter] myself. I love this stuff. Um, yeah, this is—this is uh—th—these questions really, really push it.
[32:53] Bill But I see—I think that’s the problem on the defense side. I think the plaintiff’s bar is very comfortable with pushing it in voir dire, openings, with witnesses, at closings. I think they’re very comfortable at pushing it as up to the line, even over the line if they have to. I don’t see the defense very comfortable with that. These questions push it.
[33:12] Bill Okay, now all these things we’re talking about. Okay, this is all really strong psychologically supported, scientifically supported concepts. Okay. If you want to prevent a problem, the number one way to prevent the problem is to expose the problem because that’s going to force the jury to consider these issues when they come up. Forces them.
[33:51] Bill If you tell the jury, “Do not think about blue elephants,” they’re all going to think about blue elephants, ladies and gentlemen. Okay? And you have some blue elephants for them to think about now, don’t you? Doesn’t matter what the answers are. That’s the beauty of this with these questions. Doesn’t matter what the answers are. You’re planting seeds. So, when this information comes up in opening, closings, whatever, deliberations—the anchoring seed is in their mind, the counter-anchoring seed is in their mind to protect you, and the social inflation seed is in their mind, and there’s nothing anyone can do about it. It’s in there. It’s the blue elephant. You can’t—you can’t not think about it at that point and that is uh, a pretty advanced way to prevent um, a lot of problems.
[34:53] Bill So, hope you enjoyed part two of the uh, this uh, advanced voir dire uh, series. Uh, I’m Dr. Bill Kanasky. This is the Litigation Psychology Podcast brought to you by Courtroom Sciences. I will be back to you with part three very soon. Bye.
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