Episode #260 – Voir Dire Rewired: A Neurocognitive Approach – Part 3 of 4

Bill Kanasky, Jr., Ph.D. continues with part 3 of our 4-part series on a sophisticated approach to voir dire. In this part, Bill talks about cognitive dissonance and personal responsibility. Cognitive dissonance is defined as mental discomfort. You have to give jurors examples of when you have experienced mental discomfort so they can relate and will share their own experiences with cognitive dissonance and also so they will hold themselves and each other accountable during deliberations. Next Bill describes how to address the topic of personal responsibility and how to plant seeds on it so you prime their brain for the concept of personal responsibility. Lastly, Bill talks about the topics of sharing fault and risk awareness.

Full Episode Transcript

[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences Dr. Bill Kanasky. Folks, hell, this is a hell of a week. I I am trying to stay um I am trying to stay positive. This is not going to be a rant. I just need to vent a little bit to my audience just emotionally. It’s been a very very tough week.

Uh number one, my 16-year-old superstar high school basketball player tore his ACL. We are absolutely crushed as a family and uh I just feel so terrible for this kid and the uh the I think mentally I think it’s it’s worse mentally for this kid. Um so it’s a long road back. It’s a you know 8-to-10-month rehabilitation process and um I’m just I’m so disappointed for him. I think I am taking it harder than he is, but we have surgery in a couple weeks and he’s doing physical therapy to to get ready for that.

So, um, that’s what’s going on in my life. So, my my friends and clients know I’ve been pretty distracted lately. That’s been that’s been very tough. Um, a lot of pain management issues, too. He’s been in a lot of pain, but he’ll make it through. He’ll make it through. I’m just trying to stay positive. Then um today I was walking through my yard doing some cleanup and uh tripped and fell and about broke my leg. So, I’ve got a big gash on my leg and I’m putting Neosporin on it and keeping it clean and I cut my—See, there’s my arm cut. I’m getting beat up over here, ladies and gentlemen. I’m too old. I’m just I’m too old for this I’m telling you.

[02:16] Bill So that happened and then the worst remember it always comes in threes. Always comes in threes. Um I am—This is funny. So, I’m in the middle of doing a uh CLLE right on Zoom for uh an insurance company and their claims professionals. And in the middle of the CLE I dump my water all over my keyboard because you know me, I’m animated when I talk. I knocked over the water on my keyboard in the middle of the CLE. By the way, water and electronics, very, very bad mix, ladies and gentlemen. You all know this. God, I’m a dumbass.

So, I managed to get through the CLE in one piece, and I logged off and then I figured out um I can’t type anything. So, now I they’re sending me a backup laptop. Um, the fact I’m able to do this right now. I can point and click with the mouse so I can get on Zoom, but like email, no, not going to happen. Any any typing, I’m done. So, if you email me, I’m going to return it on my phone. That’s the type of week it’s been. But you know what? It could it could always be worse. It could always be worse.

So, that being said, thank you for letting me vent and getting that off my plate. But, I have been a little bit off because of these issues. It’s tough stuff. But let’s get into it. Let’s get into part three, episode number three of this new voir dire model that we’re talking about. Let’s kind of go over what we’ve covered in the first two parts. This is a four-part series. Okay, this is part—So, in parts one and two. So, part one, let’s go up to the outline here. Part one. Okay, so remember, we always want to give the jurors an easy out. You want bad jurors to strike themselves. All right.

[04:08] Bill So, remember, we’re going to ask them about um anything, and this is up front. Remember, be you know, anything you’ve heard so far that you may maybe you’re not a good fit, right, for this particular jury. Maybe maybe a different case would be better. Give them the opportunity to get out. All right? But then you also want to see who’s dying to be on the jury and why. Okay? So, you’re talking about juror fit. Fit, right? I call it the fit check. Do that fit check up front and kind of see where everybody’s at. These are non-threatening questions, right? This is important stuff.

Then we moved into cognitive flexibility and confirmation bias, right? We want to detect, right? Are these people very rigid thinkers or are they open-minded? Okay, how everybody has confirmation bias, but to you know to what extent is that? Okay, so we need to ask them questions about their decision-making process. Okay, you know, when do they lock in on something? Are they early quick gut like kind of gut feeling decision makers or do they tend to wait it out to the end, right? People are wired differently. You want to explore those types of things.

Remember what I told you, make yourself vulnerable, okay? Make yourself vulnerable and then they will open up to you. Number one, that’s how you get information. Tell your own personal stories. Tell that personal story about how you made a quick decision once and you regretted it, right? You make yourself vulnerable. Jurors will be vulnerable with you and they will open up to you.

[05:45] Bill But if you cross-examine them, they’re going to, right? They’re going to shut down. Number two, this is the underlying part of this no one talks about. This is where jurors start to like you, attorneys. This is where jurors start to like you, okay? And they see you as because remember, nobody likes attorneys. Let’s get that off. Okay? Nobody likes attorneys. You don’t like attorneys until you need an attorney, right? Let them know you’re a human being. You’ve made these very same.

Here’s the whole key. You’re telling the jurors, “I, as an attorney, have made these same cognitive mistakes myself. I have jumped to conclusions before getting all the information. I have made emotional decisions that I regretted.” And that’s what we did in part two. We talked about emotional triggers, emotional decision-making, right? We like to use those shopping analyses, right? The sales situations, right? Where you buy something you shouldn’t, then you regret it, right? Great, great stuff. And remember, you’re saying, “I have made these mistakes, too. It’s okay.” Right? And have that they will open up to you.

All right? Now, in part two, we also covered anchoring and counter anchoring, right? You got to expose. Remember, if you want to prevent a problem, expose the problem. By the way, if I dump my water, I’m like I’m here. I’m going to move my water over here. I’m moving. And now I got like this uh for those of you on the YouTube channel, I got my sippy cup. If I if I knock this over, it won’t spill. I got like a sip I’m 51 years old. I got a sippy cup.

[07:25] Bill Amazing. I like sippy cups. This one uh this is uh Ted Eckenrode from Ted Eckenrode is who this is from—Thank you, Ted. St. Louis, Missouri. Great, great trial attorney. Uh sends me the best Christmas gifts of all my clients. So, uh let’s get back. So, emotional things, right? Um anchoring, counter anchoring. Get those examples out there. I love the salary negotiation example. Okay, from part two, the salary negot—that’s what exposes. This is what anchor because you can’t just say, “Hey, who here has heard of anchoring?” No one’s going to raise their goddamn hand. Okay, describe it what it is in that kind of, any type of negotiation, right?

And then same thing with counter anchoring. Okay, because we all do that when we buy cars and houses, right? You low you you come in low, they come in high, you end up in the middle, right? You want to describe this process in everyday life and then say, “Hey, you know, if this happens here, what would you think about that? If an attorney does that, the ones that anchor, is that brilliant or is that like icky?” And then when I give you an alternative number, is that very reasonable? Is that am I doing my job or do you think I’m a lowballing cheap bastard? Right? That’s how you’re, remember, so any one of these key questions, this is the key. There’s a work up to the question. You got to work up to the— See, I see you guys. You’re in court. You just read the questions right off the outline. You got to set up the question.

[08:58] Bill All right. So now, and also the final part we covered in part two, social inflation. Again, you can’t say, “Hey, who raise your hand if you think social inflation is bad?” No one knows what you’re talking about. You have to describe it. You’ve all seen some of these crazy verdicts. Yeah. Raise your hand. Yeah. Do you think any Do you think those kinds like do you think those verdicts have any impact on society in general for example? Like say the cost of goods and services. See what people say. Okay? You’re planting seeds.

So, remember half of what you’re doing is exposing bias. The other half of what you’re doing is you’re programming juror cognition. If you want to prevent a problem, expose the prolem. I’m going to say that like 17 times. If you want to prevent a problem, expose the problem. All right, let’s get to part three. That was a little summary of part one and two. Part three. This part’s cool. Okay. So, we have to assess juror’s ability to stick with the law and the parameters, the legal parameters versus getting overrun by emotion. Okay.

[10:17] Bill So, what type of discipline do these jurors have? And we need to talk about two things. Cognitive dissonance and personal responsibility. Okay. Now, cognitive dissonance just means mental discomfort. So again, you can’t just say raise your hand if you’ve experienced cognitive dissonance. No, no one even knows what it is. You got to work this up. Describe a situation, right? Okay. Can you describe a time when you had to make a difficult choice emotionally, but you knew it was the right thing to do? Tell you know, tell me about that. Where you struggled mentally with something versus the right thing to do versus the emotional for example and then you describe what you went through, right? So, pick out an everyday life experience, trial attorney, and tell them what you went through.

Remember you make yourself vulnerable, they’ll be vulnerable to you. Tell that story. Okay. When emotionally you really really wanted to do something but you took a breath, you held back because that was the right thing to do. And who here’s done the opposite? You tell both stories. Here’s an example of where I was in a tough place and I held my emotions together and I did the right thing. But here’s another story, ladies and gentlemen. Here’s where I let my emotions get the best of me and I did or I said something I shouldn’t have done. And boy, did I regret it. What are your experiences with this?

[12:00] Bill Okay, what are we doing here? We’re getting the topic. Okay, we’re engineering things here. The topic of cognitive dissonance, meaning we’re planting seeds now. So, when this happens and deliberations, this is going to pop right in their mind. Okay, then you can get more specific. Well, what happens in this case? So, you start general with your stories right now. Now, what happens with this case? If you’re in deliberations, ladies and gentlemen, and you’re torn, you’ve got that same feeling that we just described, but now you’re in the deliberation room, and it’s what you want to do emotionally versus what the law states. Juror number one, how would you handle that challenge? What would you do? How would you handle that? Oh. Oh, this is powerful stuff, ladies and gentlemen, because again, their answers are important.

At the same time, they really aren’t. Okay? Because what you’re doing is you’re programming them. You are programming the jury for this problem that always comes up in deliberations. If you want to prevent a problem, expose the problem. Okay, very very important stuff. Let them tell you what the how they would do it or whatever. Here’s the key. Okay, obviously they give questions, right? Well, I think I I’m a pretty emotional person. I probably go with my my gut and my emotions and my heart. Well, that tells you everything you need to know. That’s a preemptory strike, right? Others may say the opposite, but the whole point is you’re programming all these jurors simultaneously.

[13:53] Bill Okay. So, when they get into deliberations and one of these people starts getting emotional, you’re going to have other people going, “Whoa, whoa, wait a second. Wait a second. Remember, we got to stick with the— Remember what he told us earlier? He told us this was going to happen and it’s happening. We got to stick with the law.” Jurors will start to hold each other accountable. Very very important cognitive dissonance. Okay, you want to prevent the problem by exposing the problem and have this on their minds. So, when it happens, they start to feel that kind of that that’s cognitive dissonance. When your brain’s like, “Oh man, I don’t like this. I’m torn.” You’re programming them how to handle it, which is sticking with the law.

Okay, every one of these questions, you got to do the work up. You got to set it up with you being vulnerable, you telling them, you telling them a story, having them tell you their stories, and then connecting it with the case. That’s kind of the general formula here. If you just jump right to the question, you miss all that, they’re going to shut down.

[15:16] Bill Cognitive dissonance. Now let’s move on to personal responsibility. Right? This is a big deal in a lot of cases, right? It’s a big theme in a lot of cases. Oh, by the I can’t use my soundboard because it plugs into my keyboard. So, I can’t do I I don’t have those sounds. God, I feel naked without my soundboard. I’m getting a replacement, folks. I don’t like to impact the entertainment value of this podcast, but I miss my soundboard. So, I’m going to fix that. I’m going to fix I’m going to get all this fixed.

All right. Jump into personal responsibility, right? You’ve got, you know, you have to identify blame shifters and kind of victim only thinkers, right? This is really important. This is kind of tricky to tap into, but again, it starts the same place, right? Think about a time in your life when you made a mistake and you took full responsibility for that mistake. Think about that. How did that make you feel? For example, and then you tell your story. I made a mistake. Here’s what I did. And I owned it. And here’s how I felt. Okay. Have you ever been through that? Tell me. Tell me. Tell me about that. Something you’ve done maybe at work or home or whatever. You made a mistake and and and and you owned it.

[16:59] Bill Okay. Or I’ve had a situation, again, you always tell the personal story. I’ve had situations where a mistake was made, but I I thought other people are to blame, too. And I I was pretty quick to point fingers. Tell me about your experiences and get them talking. You get them talking by sharing, hey, I’m a human being. I’ve screwed this up myself. There are time I’ve made mistakes and I took responsibility. There’s other times I’ve made mistakes and I pointed fingers. I probably should have taken responsibility. Tell me tell me about some of these events in your life.

Okay, get that theme going. It doesn’t matter what their answers are. Now again, it does matter what their answers are because if someone someone says no, it’s always somebody else’s fault. Right? Now, you can back this off and ask a more general question. Right? Let’s think about society, ladies and gentlemen. Do you think people in general most— Yeah. like they’re they’re more likely to take responsibility or mistakes or do you think most of society tends to point fingers and blame others? What like what do you think just overall general society? Then you’re not getting any personal stories, right? But you’re kind of more general and get people to say, you know, no, I think people shift blame really. Why do you think that? Okay. Or others say no I think um most people do take personal responsibility right the only thing you’re doing here is planting the seed of personal responsibility and the benefits of it.

[18:44] Bill Then you’re going to find the juror this is your gold right you’re going to find one juror that raises their hand and say I hate people that just point fingers and shift blame, they never take responsibility for anything that’s exactly what you want. Really? Really? Thank you. Juror number eight. Anybody else feel like that? And you get that discussion going because why? That’s one of your core themes is that the plaintiff is not taking any responsibility.

There are some cases you can’t do this. Obviously, if you’re admitting full liability, this is not going to happen. But if you’re contesting liability and there’s contributory negligence with the plaintiff being involved in that formula, these are pretty important questions. Okay, you’re planting seeds here. You’re planting seeds and programming. So, when they start doing their decision-making, this is fresh on their mind. Priming. Another word to use this is prime. You’re priming their brain for what they’re about to do. And the problems that you’re terrified of, you’re going to prevent the problem by exposing the problem.

[20:07] Bill Okay. Personal responsibility. All right. I think we’re done on one more category here in this three. This we’re in episode three here of a four-part series. Okay. Um, shared fault and risk awareness. Okay. So, this is kind of like this is pretty interesting, right? Um, there’s a couple different ways to go about these, but you can talk about again start overall, right? Um, you know, when something bad happens, is there typically one cause or multiple causes? Right? You want to get that discussion going.

Okay. Um I’ve had cases in which I call it the domino effect, right? You got the first domino and the last domino. Well, which one’s really the most, right? The last do is it the last domino or is it actually the first domino? Which one is most at fault? I mean the last domino fell, which you know from a proximity standpoint is closest to the event, but the first domino started this chain of events. So, in that type of situation ladies and gentlemen how do you determine who’s at fault?

[21:28] Bill Okay. Now with risk awareness it gets tricky. Okay, for example, because you you— Okay, so you want to tell a story about where you took a risk knowing it was wrong, but you did every but you did anyway, right? For example, I was at my older son’s basketball game about a month ago and his game was over. I looked at the clock and I’m like, “Oh, you know, the the Tar Hills tip in 20 minutes and I am 25 minutes away from the house. I don’t want to miss it.” So, when I got on the interstate, rather than do 65 on Interstate 4 here in Orlando, I may have sped a little bit. I went 75 instead of 65 because I wanted to go home, right?

So, I knew that that’s a risk. That’s a risk that I took and I knowingly I knowingly took that risk, right? What if I would have been in an accident, right? Is that my fault? I mean, I knew the risk I was taking, right? Because you have some of these cases where this is very applicable where the plaintiff did do something like they knowingly took a risk, they knowingly skipped those medical appointments, right? Or they knowingly did X, Y, or Z knowing it was dangerous, but they did it anyway. Hey, listen. We all do that in everyday life. So again, normalize this. Tell your story. Ask people about their experiences with this.

[23:14] Bill Okay? And really, really what you want to get down uh to is, you know, can a bad, you know, can a bad outcome— does that usually have shared responsibility? Or is it that first domino? Nope. For because you’ll get people that say, “Nope, the first domino is one is 100%. Because that the last domino never falls if it’s not the first domino. So, it’s every it’s everything’s on that first domino.” Whereas others say, well, no, first domino is important, but really all these dominoes play their equal role or their relative role, right? You want to see how do people think about these types of situations? What do they think about kind of um you know risk awareness and and and behaviors that we all do that are risky and we and we know it and see what they think about that.

But again, telling your own story, becoming vulnerable, they’re going to open up to you. Okay, so that is part three. I want to emphasize this again. Um, you know, voir dire questions tend to be recycled from case to case. Um, I’m not saying they’re bad questions, but what I’m saying is you can go so much deeper with jurors if you’re asking the right questions on the right issues. Okay?

[24:40] Bill Where I see where I see a lot the problem is that there’s so much you can do from the— see most voir dire questions I see from counsel are ones to expose bias. And I get it and that’s important. That’s not the only thing going on here. What you also want to do, you want to spend the other half of your time programming the juror brain for future events. If you want to prevent a problem, expose the problem, right? If you want to prevent the problem, expose the problem. So, when they’re in that situation a week from now, two weeks from now, 3 weeks from now, this will, they’ll be pre-programmed on how to deal with it.

Back to the— Yeah, these holding other jurors accountable. That is I I think that’s one of the best questions. Okay, that’s really really one of the best questions is getting people to hold other people accountable. And so not just saying um you know hey when you’re in deliberations you you know you may be in this very similar situation what are you going to do but it’s and I in episode four I’m going to go into more about this but what if another what if someone else on the juror panel what if some other juror starts doing these things we’re talking about right how you going to handle that are you going to speak up if somebody starts not following the law and just going all with their heart and their sympathy and emotions.

[26:15] Bill What are you going to like, what are you going to do? If you talk about that problem, you’re exposing it and then when that comes up during deliberations, it’s going to take care of itself because you’ve pre-programmed the jurors on how to deal with that problem. Okay? Now, what I’m saying, this is all pretty advanced stuff, okay? But it works if it’s done right. The wrong way to do it is to jump right to all these questions. As you can see, and I I repeat myself over and over because that’s the only way this stuff is going to stick is how you set this up is most important. Okay?

Become vulnerable. Open yourself up. Talk about your your personal cognitive and behavioral mistakes that you’ve made in everyday life. Okay? We’ve all been there. The jurors see that and go, “Wow, this is not such an attorney after all. This is a this is a human being that makes mistakes just like me.” And then when you call on these folks to share information with you, they’ll be comfortable. They’ll be open. You’ll connect with them on a human level.

[27:31] Bill And again, most importantly, ladies and gentlemen, the most important about all of this, by taking this approach that I’ve described to you, they’re going to like you. They’re going to appreciate you, and that is going to get you very, very far with these jurors when they have to start making really important decisions and deliberations. All right, that’s all for today. I’m going to try not to spill any more water. I’m going to try not to trip and fall and almost kill myself. Um, and I’ll be helping my son through his recovery here from this ACL surgery coming up. That’s a tough one, but uh, we’re gonna get through it. We’re going to get through it. It could be worse, and it’s not. So, uh, we’re going to come together as a family and I’ll pitch in and help this kid out, and then, uh, months and months and months will go by, but, hopefully he’ll be, uh, he’ll be back and and better than ever. So, uh, thank you for letting me vent about that Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Dr. Bill Kanasky. We will see you next time.