Episode #261 – Voir Dire Rewired: A Neurocognitive Approach – Part 4 of 4

Bill Kanasky, Jr., Ph.D. concludes our 4-part series on a sophisticated approach to voir dire. Bill discusses juror sympathy and commitment to following the law. Bill talks about a concept called sympathy override and gives examples of how to get jurors to open up about the concept of sympathy and whether they can maintain discipline when it comes to sympathy. You have to address the challenge that jurors will experience when their heart and head are in conflict. Next, Bill explains Pre-Commitment Theory and how to leverage public commitment from jurors to increase the likelihood of them sticking to their commitment, plus how Pre-Commitment Theory can also be used to hold each other accountable in deliberations. Verbal commitment in front of the other jurors is critical for this to work. Bill concludes by emphasizing that the key to the entire concept of this sophisticated approach to voir dire is pre-programming the juror brain and the stepwise process required to do so. 

Full Episode Transcript

[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences, Dr. Bill Kanasky. Part four of a new voir dire system model, okay, that is designed to be surgically precise from a psychological standpoint to give you more weaponry, insight, and quite frankly control of the juror brain. So this is part four final segment and we are going to talk uh primarily well let’s talk about sympathy in part four and we’re going to combine that with uh uh commitment to following the law right because you always got this you know sympathy law sympathy law sympathy law that’s I mean that’s the that’s the problem with every deliberation right how people feel versus what the parameters are legally scares everybody. Uh people are human and you know the judge, the jury instructions, they all say right, set sympathy aside. Well, that’s impossible. It’s absolutely impossible, right? Setting sympathy aside. It’s got to be controlled. Okay? It’s gotta it’s it’s got to be it’s got to be controlled. So, let’s let’s talk about this. So, this section, let’s call this sympathy override. Sympathy override. Okay? Because that’s what you need. You need logic and the law to override. You’re not getting rid of sympathy.

[02:15] Bill Let’s just get that straight. You know there’s all these qu—Can you put sympathy aside? Oh, yeah. BS. Nope. Nope. Nope. Nope. Nope. That is impossible from a neuropsychological standpoint. It’s impossible. Okay. What we need to do is override, right? We need to have the logic/law override the sympathy that’s always going to be there. Okay, how do we do that? Again, we have to do some things here to prime the brain for the problem. Remember, I’ve said it four episodes in a row. If you want to stop a problem, expose the problem up front. And that’s what you’re going to do here. Okay? You’re going to talk about sympathy. Again, I like talking. I like using stories, very short stories with jurors that get them to open up again. Makes you makes you vulnerable, makes you look human, makes you likable, right? But give them like a non-legal example of something you’re trying to tap into, and then that increases the odds of them opening up. Consider this example.

[03:40] Bill We’ve all been there, ladies and gentlemen. A family member or a very close friend asks you for a loan. Oh, it’s the worst. We’ve all been there. God, isn’t that the worst, right? Someone that you know and love is struggling. They’re struggling emotionally and financially, and you want to help them. Like, you want to help them. I and by the way I have personally been through this, and the result is never good. Right? So, you want to help these people and deep down you know you’re you’re never seeing this money again. Right? You’re never—like it’s not a loan. You’re giving them the money and maybe you can’t afford to give them the money. You’ve got your own stuff going on, right? And this is an emotional right decision. But you have your own internal rules of I just don’t you know I have a family. I have bills. Why in the world would I just give my money away, right? And you say and you say no. And saying no to somebody you love. It feels cold, but you know deep down it it was the right decision. Okay? It’s choosing discipline and the the rules over emotion.

[05:15] Bill Ladies and gent has anybody ever been in this decision? Right? You ever had this decision put in front of you? Okay. I think that’s a really really good way to tap into that because most people have been there and as you all know when you loan money you never get it back ever which is why I never loan money to anybody anymore ever again because you’re just giving it you’re never getting it back. Right? Get this topic going. You’re going to have people and again tie it to yourself. Like, so if I was you, I would say, assuming this has happened, I would say, “Yeah, this happened to me with two, you know, one family member and one really, really close friends.” And guess what? I don’t even talk to him anymore now. Terrible, you know, situation to me. Who here’s been in this situation? How did you handle it? And when you get jurors that say what I just said and say, “Listen, I ain’t doing that. I don’t care who it is. I’m sticking to my parameters and if they get mad at me, so be it.” Versus, you’re you’re going to you’re going to find some jurors that just have that they can’t say no and they keep making the same mistake, right? You think you want that juror on your panel? I don’t think so.

[06:34] Bill Now, if someone’s made this mistake before and they’ve corrected it, they say, “Yeah, I did it once and boy, just like you, I got burned.” Okay, but going forward, no, no, no. I’m maintaining discipline when it comes to my money. I think this is very, very important. Okay. Along that theme, I think that um another thing that we found in our data and research is this is where I’m kind of going off script here, but jurors that um are very financially savvy, okay? Um they they they care about their money, they kind of they’re frugal, they budget, okay? They’re not loosey goosey with money. Those are good jurors for you if you’re the defense, okay? Because they’re not just throwing money around there. They know they understand the value of money. Okay. Uh this is really important. So, ask them, okay, there’s my situation. Maybe you’ve been in that situation. Now, not everybody’s been in that situation. So, you could also say, you know, ladies and gentlemen, can you think of a time where you felt emotionally pulled in one direction? You felt pulled and you had to make a decision based on the rules and not your feelings and you stuck to the rules because guess what? That’s what we’re going to be asking you to do in this case. There’s rules and that’s the jury instructions. That’s the law that the judge is going to read to you and give to you. You’re going to be you’re going to be put in this exact spot.

[08:13] Bill How do you think you’re going to handle it? Okay. What if you have a situation like we have here? A person’s hurt. They’re hurt badly. What if there’s no evidence to show that my client caused this injury, but you still feel bad for them? How are you going to deal with that internally and start getting the discussion going? This is—this is an exceptional topic that no one wants to touch. It’s like kryptonite to attorneys. Okay. But what you’re doing is you’re priming the brain. Remember, if you want to stop a problem, expose the problem. And this is how you expose the problem. And remember the formula here with exposing the problem is using everyday life examples and pulling yourself into it and telling your own examples. That’s what gets—Okay. Okay. You can’t—Okay, you can expose the problem the wrong way and say, “Yeah, jurors are crazy. They make all these crazy emotional decisions. What do you think about that?” You can’t do that. You’re going to piss everybody off.

[09:29] Bill Okay. You’re going to piss everybody off. So, I think this is a good way to bring up the sympathy issue in a non-legal way. Okay? You’re programming the juror brain on how, what this problem is and what the challenge is going to be. I like the loaning money example. There are other examples out there. There are other examples out there. Look at those uh the uh ASCPA. Is that the, you you’ve seen the commercials, right? Um you know, abused pets and stuff and stuff like that and they want your donations. Uh it pulls at your heartstrings. Pulls at your heartstrings. It it can it can really get to you, right? But there’s other situations in life where it happens as well. Come up with those. Let’s get those real life everyday examples and talk about the problem which is your logical mind’s going one way your emotional your heart excuse me Jesus your heart’s going a different way I need more coffee. Okay to prevent the problem expose the problem but expose the problem in two ways it’s the for same formula every time. Four episodes, same formula. Okay? Use real life examples, not legal examples. Number one. Number two, show how you have made the same mistake because you’re human. Okay? That’s what we’re doing.

[11:14] Bill Sympathy override. We have to expose it. All right. Now, next thing. Now, now we’re getting deep. Now, we’re getting deep. And we’re going to end with case specific stuff. This is kind of the final, you know, real psychological variable here. Okay. A lot of research done on this and that is called pre-commitment theory, and you can use this on burden of proof, damages. Okay. And what pre-commitment theory is lots of research on this. Lots of research in uh dietary and exercise behavior, uh personal spending behavior, a lot of behavioral economics going on here, right? Where they’ve done a lot of research where when people publicly commit to something, the statistical odds of them carrying that through triple. They’re sky-high versus someone that commits internally but not publicly. Right? So, for example, you say to yourself, right, it’s 10 o’clock. You’re going to bed and you’re like, I am waking up at 5:00. I am going to go just like Kanasky, I’m going to go to the gym and I’m going to go I’m going to go get ripped and torn up at the gym because I want a better, I want to get healthy. Blah blah blah blah blah. You set your alarm and you wake up and that alarm goes off at five o’clock and you you are you are just snooze off off, right? That’s that’s what happens to most people.

[12:59] Bill Now, different situation. If the night before you are out with your friends or your family, say you’re out to dinner, you’re out to dinner with good friends and your friends go, “So, what are you doing tomorrow, Bob? Jennifer, what are you doing tomorrow?” And you say, “Well, here’s what I’m going to do. I’m going to get up at 5:00 o’clock in the morning because I I really want to get healthy and I’m going to go to the gym, and I am going to rock it. I’m going to go get shredded. I’m going to lift heavy things because I care about my health and you announce that publicly to your friends, the statistical odds of you hitting snooze drop to the floor. Why? Pressure. It’s peer pressure. You remember peer pressure? We all grew up with this Nancy Reagan. Just say no to drugs. Peer pressure. Peer pressure. God in 1985 when I was in middle school. Peer pressure. Peer pressure. Peer pressure. We’ve had peer pressure since we’ve been children. It works. It’s a deep psychological pressure to keep your word. And when you just make the word to yourself, it’s very easy to bail on the plan. Why? There’s no accountability except to yourself. So, the person that hits snooze and then never wakes up, yeah, they may kick themselves in the ass the rest of the day, but they don’t have their friends doing it. And that’s the worst thing in the world. So, imagine you go out with the same group of friends the next night. Hey, how was your workout this morning? I skipped it. You skipped it? The hell is wrong with you? idiot.

[14:59] Bill Nobody wants to go through that. Okay? Nobody wants to go through that. So that’s why you’ll see if you ever go to exercise groups or dietary that’s kind of like a group like counseling or whatever, they focus on group work and and public commitment to the group. I’m not going to let you down. I’m going to do my role for this group. and they publicly announce things. Lots and I mean lots of science behind this. So, let’s just bring this into jury psychology. Okay? Let’s bring this into jury psychology to keep and this is where it gets really cool to not just keep the individual juror accountable to their commitment but for them to keep others accountable. Okay. So, here’s how we got to do it. We’ve got to remember, expose the problem. You want to stop the problem, expose the problem. And the problem is again, it’s not following the law and letting emotions get in the way. Okay? This kind of dovetails from the sympathy override. This is kind of step two to this is to say, okay, now you know and here’s kind of the basic question behind this which judges ask which is terrible a lot of attorney. Can you put your sympathy aside and follow the law? And everybody says yes. Well, we we all know that’s BS right? That ain’t happening.

[16:31] Bill So, the way to do this correctly is work in the pre-commitment theory science and say, “Here’s the situation you’re going to be in. You’re going to hear a bunch of emotional stuff and then you’re going to have the law and it’s going to be heart versus the law. Juror number one,” you can’t do—you want to do this individually. “Juror number one,” and you go one by one. “Can you commit? Can you raise your hand and verbally commit to me that you’re going to follow the law and not your heart because that’s what the law says to do. Can you please verbally commit and raise your and raise your hand?” Once they do that, they’re going to have a really, really, really hard time in deliberations going emotional. They’re going to have a very—I mean, the cognitive dissonance, right? We talked about that earlier. The cognitive dissonance will be incredible if they commit it to the whole group. It’s the same science. Okay. And here’s the follow-up now. Okay. The very first thing you do right now is you go, “Thank you.” You—operant conditioning, reinforcement. Right? This is it’s all psychology, ladies and gentlemen. I love this job. It’s all psychology. Okay? Once they commit, the first thing you do is, “thank you for your commitment to following the law. I appreciate that, juror number one.” So, you’re reinforcing it.

[18:08] Bill Okay. Now, here’s the good thing. You’re gonna see some people struggle. You’re going to see some people kind of half like alligator arms, right? Like half a hand up going, “Yeah, I guess I commit.” And as the attorney, you got to call that out and go, “Whoa, whoa, whoa.” This where you’re now, now you’re setting up a cause challenge here, right? Imagine that. You go, you know, your honor, you know, juror number one can’t even fully commit to following the law. That’s, you know, we asked her, she—Right. She’s very iffy about it, right? You’re gonna find the iffy people, okay? And hopefully you can set them up for cause. If not, they’re very high on your preemptory list because they’re going to screw you in deliberations because they’re not committing to following the law. They’re saying, “No, I’m going to leave this emotional door open.” Can’t have that. Okay. So, if they commit and they do it, the follow-up question, this is gold. No, as my 16-year-old says, this is fire. That’s fire. That’s what the kids are saying now, by the way. It’s fire. All right, this next question is fire. Okay, juror number one. If another juror in deliberations, not you, somebody else wanted to award money just to help the plaintiff. They abandoned the law. Nothing about burden of proof. Would you be comfortable? Would you be able to and willing to speak up and say, “Whoa, whoa, whoa, wait a second. Our job as jurors is to stick to the law.” Juror number one, would you be able to do that and keep your fellow jurors accountable to stick to the law?

[20:00] Bill Oh, now I came up with this actually long ago. The problem is nobody listens. Nobody likes change and nobody listens. Amazing trial attorney Tony Batista who was on the show two episodes. That’s his famous phrase. Nobody listens. Okay. This is the work you have to do to create this enormous, and I’m talking enormous. There’s no other pressure more enormous than peer pressure. We’ve dealt with this since children. The brain’s pre-programmed for it. Peer pressure. Think about it. How many dumbass things have you done in your life because peer pressure? My list is endless. And not just as a kid into an adult, right? I caught my I’ve caught my kids doing dumb stuff and I’m like, why in the world did you do something so dumbass? Why? You know what their response? Well, everybody else is doing it. They told me I was a sissy if I didn’t do it right. It’s peer pressure. It works. And it it’s a human thing, not a kid thing. It goes all the way into adulthood. Okay? It’s it’s alive and well. Use it. Use it for sympathy override. Get the commitment and make sure it’s authentic. If it’s not authentic, cause challenge or they’re very high in your preemptory list. Okay. Once you get the commitment, get another commitment going. Okay. Well, guess what? Thank you for your commitment, but there’s 11 other people or five other people if you’re in Florida. These other people, they may they may abandon the game plan here and start putting emotion over the law. Are you going to be able to keep them in line? That’s what you’re doing here. Okay? Do you have the strength to speak up and to say, “Whoa, whoa, whoa. We got to follow the law. That’s our job as jurors.” Okay? Get that commitment and then double down on the peer pressure accountability. And you’re cooking with gas. Cooking with gas.

[22:31] Bill All right, this is good stuff. Very good stuff. Okay, let’s finish up part four of this podcast. I hope that you guys have found this stuff useful. Okay. Um, again, I read a bunch of voir dire scripts. I watch voir dire. And again, the questions I see and hear, I’m not saying they’re terrible questions. I’m saying they’re very rudimentary. They usually focus on people’s experiences, and they fail to dig deep enough to detect what you’re actually looking for on the exploratory end. And that’s what most questions are. Most most voir dire questions I’ve seen are designed to detect bias, which is great, but you got to be able to dig deeper and get to the heart of the matter. So, if you’re not doing that well, it’s not effective. But the other half of this equation largely gets ignored. And the reason why is these this whole kind of neurocognitive programming, right? We’re pre-programming pre. It’s like software on your phone, right? You load software on your you’re you’re loading software onto the juror brain before deliberations. That’s what you’re doing with the other half of the questions. You want to program it to do some things and program to avoid other things. You want to avoid problems. What are you doing? You expose the problems. Inoculation. And we’ve covered the various ways to do this. on burden of proof on sympathy, damages.

[24:09] Bill Right. Okay. Last section. Now, by the way, with any of these other questions, you can use those on any case. Now, you’re going to have to ask pre uh you’re have to ask case specific questions, right? For example, things like pre-existing conditions of the plaintiff. Well, that’s not going to come up in every single case. But this example of case specific questions, okay? And you got to bring this stuff up and kind of talk about what the evidence is going to be, right? How do they feel about, you know, for example, pre-existing medical conditions? And you’re going to have experts come in here giving testimony. They’re they’re going to completely disagree with each other. Are you are you comfortable with that type of testimony or is that overwhelming for you? That’s something you’re interested in, or you really don’t care about it. Okay. So, and so like the final chapter here, which I really can’t get into specifically because every case is different, is you’re going to want to test the issues of your case. Sometimes it’s causation, right? And you’re kind of giving them little hypotheticals. What if he had this situation, right? Could be uh causation, could be pre-existing conditions, could be contributory negligence. Okay? And you get into more of the case specifics of your case, right? So, if the case is about trucking, you’re going to bring up some trucking questions here in this section and kind of bounce those things off, right? Because you want their attitudes about trucks, the trucking industry, their personal experiences. Are they scared of trucks? Right? All the case specific stuff that you’re—now those questions obviously you’d never ask in a med mal case. See on med mal, it’s going to be their experiences and their attitudes and their beliefs towards the medical industry, right? You’re going to ask those. So those questions have to be really specifically designed on a case-by-case basis.

[26:31] Bill Construction, same way. Medical device, same way. Employment, same way. So that section of your script is going to be fresh every time. because it has to really align with the facts and the situation of your case, right? Are you admitting liability? Are you not admitting liability? All right? So, what you see here, um, and again, this is my belief, but again, no one like Tony Batista says, no one no one listens. Um, you should have uh a large percentage of your voir dire script tapping into these psychological variables that I’ve discussed in these four episodes. These are key cuz not only are you getting people to open up, right, to detect this, you know, the bias that you’re looking for, but the key here is preloading, pre-programming the brain to deal with the issues they’re going to deal with in deliberations. Because this is where the wheels come off, folks. People get into deliberations and their brains go crazy and you get these crazy verdicts, right? Why does that happen? Their brain, that’s the first time they’ve been exposed to the problems. They don’t know what’s the problem. Okay. How do you prevent that? Expose the problem. Expose the problem in jury selection which forces them to digest that problem right there and then you got recency on your side right a week later two weeks later 3 weeks later that same problem’s going to come up and you have just uploaded the software to their brain on exactly how to deal with it that’s the missing link here this often gets skipped.

[28:37] Bill So then when this problem happens in the deliberation the brain just defaults to the previous software which has been installed by society by the way. That’s not good for you. You need to install your own software. But you see it’s a delicate balance. The setup to all these questions is is really important. A conversational, open, vulnerable tone to get these folks to open up. Make sure, remember, tell your stories, your stories from childhood or marriage or with your kids, how you’ve made some of these cognitive errors and emotional errors. I mean, just think about how many times have you met somebody and you went with your gut and you really liked them and they turn out to be a jerk and then the opposite. You meet somebody, your gut feeling is they’re a jerk, but then when you get more information, you’re like, “Wow, this person’s not so bad. I kind of like them.” We all go through that as human beings. That’s what happens in cases. You get all this plaintiff information up front. Well, do you lock in there or do you know in the back of your mind? Yeah, I’ve got to wait till I get all the information because I’ve I’ve been through this. Well, if you pre-program them to do that in jury selection, they’ll do it. But what do you do? No, you ask the question. Are you willing to keep an open mind? Yeah, the plaintiff always gets to go first. I got to go second. That’s just the way it works, ladies and gentlemen. Who here is willing? Raise raise your hand if you’re willing to keep an open mind and listen to my case—that’s that’s that’s a dumb question. Everybody’s going to say yes. That that’s not the that’s not the way to do that. You have to set up that question by talking about the human experience of how that issue can be problematic and lead to faulty conclusions. Then you ask that question afterwards. Why? You’ve pre-programmed them. You’ve preloaded the software.

[31:00] Bill All right? So, all right. Uh, that’s it. I hope—you know four-part series on this. And, um, again, you know, maybe it’s for you, maybe it’s not for you, but this is, I mean, jurors are humans and, you know, this is psychology, folks. This is psychology. So, um, contact me if you have questions. Um, I’ve got two papers coming out on this. Uh, two papers coming out on this. So, those will be uh available shortly. And as a reminder, I’ve been told by our producer to uh say this at the end of every podcast. Um please—So, guess what? Okay, so our YouTube channel, if you’re watching on YouTube, okay, we just hit we’re at uh over 10,000 subscribers. Do you know how many YouTube channels have 10,000 subscribers or more? About 3%. Okay. And on the other platforms, we have over 100,000 downloads of our episodes. It’s much much harder to track that. But so, whether you’re on YouTube or you’re on Spotify or you’re on Apple, whatever, okay? Um give us a rating, leave us a review. And if you love the podcast, give us a rating. And please put down some comments on why you love the podcast. If you hate the podcast, give us a rating and tell us, you know, tell me how much you don’t like me. That’s fine. I’m okay. I’m about to turn 52. I I can take it now. 10 years ago, not so much. I’d hunt you down. No, I’m not going to do that. No, no. We we we want we want more subscribers. We want this to be beneficial. We’ve done a serious uh kind of search out there for other podcasts that are doing anything like this and um you’re just not I just don’t think you’re going to find it. There’s a couple out there and they have like under 100 episodes. I think they have under 50 episodes actually. We’re pushing 300 in five years, and we want to keep it rocking and rolling. We get great feedback. Um, and if you want to be a guest, okay, I love having guests. You want to be a guest on the podcast, shoot me an email bkanasky@courtroomsciences.com, and we’d love to have you on. I’d like to do more panels, right? Get a couple people on, maybe debate something. All right, but this is this this podcast has been so fun. Um, we’ve gotten so like overwhelming feedback uh from just hundreds and hundreds of of attorneys and some claims people uh that listen to us. So, if it’s working uh we’re not going to stop. We’re going to keep we’re going to keep doing it. So, thank you for all the support. Again, this is uh part four of voir dire. I hope you enjoyed this Litigation Psychology Podcast brought to you by Courtroom Sciences. This is Dr. Bill Kanasky. We will see you next time.