Steve Wood, Ph.D. joins Bill Kanasky, Jr., Ph.D. to answer recent podcast viewer and listener mail.
• In voir dire, should defense counsel ask jurors about their AI use and habits?
• The judge has only given both sides, three to five questions, max, in jury selection. What do I do?
• How can you manage judge conducted voir dire?
• How do I counter-anchor in my opening statement if the plaintiff attorney doesn’t give a specific number but they just say that they want a large amount from the jurors?
• What are the updates on how the plaintiffs bar is using social media to change and improve their ambulance chasing stigma?
Full Episode Transcript
[00:15] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Coming at you in the dog days of summer, Dr. Bill Kanasky, Dr. Steve Wood. Dr. Wood, how are you?
[00:29] Steve I am good. And I am also in agreement with you that it’s very hot.
[00:34] Bill What is it? So, you’re in College Station. Um like we’re mid-90s and humidity through the roof here in Orlando. How how horrendous is it uh by you?
[00:44] Steve It’s about the same. Yeah, it’s it’s very hot.
[00:46] Bill It’s It’s horrible.But here’s the thing, and we we can talk in February. You don’t have to shovel it, Steve. You don’t have to shovel it.
[00:54] Steve As as someone who was born and raised in the Midwest, I will take the heat any day over the snow and having to shovel.
[01:00] Bill I’ll take it. And with my haircut, humidity… Oh yeah, I am I am just I am just fine with that. Um this is one of our favorite segments that we do pretty routinely. Uh viewer/listener mail. We got some We got some really good ones. A lot of lot of trial questions. A lot of trial questions. However, before that, um, couple different updates. Um, couple different updates and rants. Geez, where should I start? Uh, a lot of people are asking me about my son Dean and his ACL rehab. You just saw him recently. Uh, going strong. Going strong. Um, he he is being an idiot here and there. We went to the beach and he’s in the water and I’m like, listen, dude. Like, you know, you can go knee deep, but let’s not be getting in—Now, I turn my back and he’s like bouncing in waves. Mom’s yelling at him. I’m yelling at him. I’m good. “I’m just hopping on my good leg.” Hopping over waves after everything we just went through?
[02:01] Steve Yeah.
[02:02] Bill Hopping over waves with one foot. “I’m not using my my bad knee.” I’m going here we—Can you imagine that? Me in the ER because he’s body surfing. I mean, it’s like, so it’s it’s one of those I know he’s young and he’s doing he’s doing well in physical therapy, but I think I may rat him out. Honey, should we rat him out to the physical therapist? Yeah. So, my wife and I we’re going to we’re ratting him out. Um, when does he go back? Tuesday. Yeah. Tuesday morning, he’s getting ratted out and I’m going to let the physical because like we yell at him and he just rolls his eyes. Rolls his eyes. “I know what I’m doing.” Okay. Okay. Well, so I’m going to we’re going to we’re going to rat them out at physical therapy.
That’s one update. Number two, which I brought on the last podcast. You were not on. I did a solo. My dog days of air conditioning goes out upstairs. Just got just got it back on. I think it’s going to snow in my house. It was how long, Kim? How long was it? Eight days, seven days. Six days. It felt like eight. It felt like a month of uh 85 degrees upstairs right here in the podcast studio. Uh every fan we had in the house all upstairs. Air conditioning’s fixed, but it took it took six days cuz they had to order a part. Um I tell you, I got to tell you, Steve, uh there’s many things in this industry that can challenge your mental health. I’m not really sure. I was challenged mentally with six days of no air conditioning.
[03:36] Steve I can imagine.
[03:37] Bill Yeah. I I I just wanted to like go on a shooting rampage. It was I was really It was ter—has this happened to you in the summer in in in Texas?
[03:45] Steve It happened one time that I can think of and we had to call like an emergency 24-hour person to come cuz we were not going to deal with it.
[03:52] Bill Yeah. I got my checkbook out. I’m like, I don’t care what it costs. Just just effing fix it. Oh, there we go. And then finally and then so let let me let me tell you this other um this other uh rant. So, so, so speaking of the beach, so, uh, we live about 40 minutes, uh, from the beach and, um, so, so my son Dean and I are driving out to the beach. This is the, you know, the drive before he starts body surfing and we’re on I4 and I was talk, we we’re talking, yeah, trying to talk to a 17-year-old’s like, right, like almost a complete waste of time, but hey, you know, I’m dad. I’m trying. And I’m talking about like one of the, you know, group texts. Oh yeah, I talked to Steve, you know, in the in the group the group chat and he looks at me, I [__] you not. He looks at me and he goes, “You do group chats?” I go, “Yeah, I got like seven of them on go between work, friends, family, my cousin. I mean, of course I do.” Yeah, I do group chats. He looks right at me and he says, “I wasn’t aware that someone in your generation was capable of that.”
[05:01] Steve Wow.
[05:02] Bill Whoa. Whoa. Whoa. Whoa. Whoa. The dis—the disrespect.
[05:13] Steve It’s funny how our kids think that we were born in like the 1950s and TV was black and white when we were kids.
[05:19] Bill I I it’s it’s this is just unbelievable. He was serious. He wasn’t like making fun of me. He’s like, “Wow, boy. Some of your generation that’s pretty impressive.” I’m going, “You’ve got to be kidding me.”
[05:33] Steve I’d like to think we’re pretty we’re pretty tech-savvy, which we will get to today on the questions, too.
[05:37] Bill Yeah, we’re going to get to the questions, but let’s let’s get an update. Uh you came right here locally uh a couple weeks ago. Uh tell tell the audience about uh your son’s performance with with the baseball team and and the ultimate outcome there. Uh that was a pretty good trip for you.
[05:49] Bill Yeah, they did uh they did really well. They lost a few tough games to they went to a a tournament that was an invite only with the top teams in the country and—
[05:59] Bill They were good. I went, they were good.
[06:01] Steve Yeah, they they lost a couple close ones. Um but then ended up basically in the the bracket. They ended up running the running the bracket and and winning the championship. So, they did really well and then of course uh Luke was in a hitting slump for a little bit but then in one game hit two home runs you were not there at.
[06:20] Bill Of course. Yeah cuz when I went there you know he couldn’t find a strike zone. The umpire the umpire was like I was like come on that called third strike remember I was like really it was clearly a called strike three and they ball I’m going here we go. Yeah. But yeah neither neither of us got ejected. That was nice. That that was good.
[06:38] Steve Yeah. Well, like you said, you got to see how I sit in the outfield just to avoid any sort of…
[06:42] Bill It’s very smart because listen, if you want to see crazy people, I always say if you want to see crazy people, just two places, right? Number one, go to the airport. You’re you’re just going to be surrounded by crazy people. But then number two, any any youth sports event with the parents.
[06:57] Steve Oh, yeah.
[06:58] Bill Yeah. You’re you were like 50 yards away from any other parent. Smart, smart, smart. But you could hear them. It’s like the cackling. It was just awful.
[07:07] Steve Yeah. That was bad. But no, it was good. I’m glad you guys came. Dean came. Uh Billy came. Billy came to every game. Every game. He was there at the championship game.
[07:16] Bill Yeah. So, you know, once once your kid like goes pro, you I I expect to be the whole family invited to like draft party and you know… tickets to to games, you know, things like that. All right. You ready for some uh viewer uh listener mail questions?
[07:37] Steve I’m ready.
[07:38] Bill These are um these are pretty these are pretty damn good. By the way, some of these questions are pretty damn tough that we don’t don’t necessarily have answers for right now. Let’s start with the first one. Okay. In voir dire, should defense counsel ask jurors about their AI use and habits? What could that possibly tell me? I think it’s a really interesting question because um more and more people are using AI. Some people like my wife avoids it like no, she uses it through me. She said, “Hey, ask your friend this.” Right, hun? Yeah. Like, right. She doesn’t use it directly. She uses it through me. Right. But yeah, I use it a lot. And um some people use it in different ways. Um I guess this is very interesting and how telling could that be. I’ve noticed online, particularly if you’re on X and you use Grok. Um a lot of— And I’ve heard a lot of people I’ve done this too. A lot of people use it for like fact-checking, right? You get a story and you copy the link and you feed it in the chat and they’re like, “Okay, is this story bs or is this real like and it’ll kind of tell you, right?” And so what does that say about me? You know, maybe I’m a natural skeptic, right? Well, how would that influence what what are your thought? Because I I do think this may be a very telling uh question particularly into the future that defense council may want to tap into. What are your thoughts?
[08:55] Steve I think this was a great question that I hadn’t even really thought about and until you know we we kind of heard it and then you know it it is very interesting and I think it goes to your point was the idea of what you’re using it for right or a are you using it and then what are you using it for going to your point if you’re using it are you using it for more of like art stuff because you know we and I I passed them along we did our the the baby that’s hilarious by the way I’ve done other ones too where I’ve used it to um you know sync voices and stuff like that. But then there’s the other side that uses it for information gathering. So, I think what I would see is the person who’s using it for more for the entertainment purposes, more for the art purposes is probably going to see it differently. They’re going to be a little bit more into the arts. They’re going to be a little bit more, you know, um artistic in their thought process, aka a little bit more pro-plaintiff versus the one who’s using it for the fact gathering. That’s probably gonna be a little bit more skeptical.
[09:56] Bill Now, I’m gonna blow you away with something here. You ready for this? I bet this has already happened. I just came up with this right now. What do you—Now, jurors are all instructed. Don’t go online and do research. Don’t Google anything about this case. What if a juror just goes home, gets on chat GPT, and says, “Hey, I’m a juror. I just listened to opening statements today.” They don’t put in proper names. This is what the case is about. and they start talking to AI. I mean, there’s no rule against that, is there? I mean, imagine that. And then AI starts contaminating this juror or maybe giving them different perspectives.
[10:38] Steve Yeah, I didn’t even I didn’t even thought about that until you said it, but I just thought of it. Yeah, I could I could see that. And even though you get admonished to not go home and use any sort of social media and internet research, I mean, I would assume internet research. I assume chat GPT— Does that fall into that category of internet research or not?
[10:54] Bill Wow. Scary stuff, right? Scary. I mean there’s there’s bigger questions here, right? As far as you know, do judges start changing their instructions to include that. Yeah, I I don’t know. Um but I do think it’d be interesting to start just open-ended questions asking how they use it, why they use it. Um because I I I do think that would um Well, number one, you’re just going to learn more about your jurors.
[11:20] Steve Yep.
[11:21] Bill Right. But yeah, but I if you got someone that’s like a chronic fact checker using it, I think I think that’s very telling versus, you know, somebody that use like I mean I I use it a lot. I mean, for like exercise and health purposes and uh God, it’s it’s it’s amazing. It’s like my own little personal trainer, right? Well, does that have any impact on juror decision-making? You know, probably not. But how other people use it.
[11:47] Steve Yeah. I mean, let me ask though, Bill, like, are you using it though when you get it? I think this is another kind of bucket of people’s use of AI. Are you using it and just taking what you get as information and using it as gospel or are you kind of using it as your thought process rather than you thinking yourself? You’re kind of using it to make decisions for you because that’s a little bit different, too.
[12:08] Bill Yeah, it’s um it’s definitely I find it very useful because like for example like you know back in the old day it’s like hey my uh my my my TV is not working right I I can’t figure this out so I like I go to YouTube and I put in my TV and then you have all these it take all this time to no and I’d find like some fix so I I I use a lot to like fix problems um whereas I think some people may be using it more for philosophical reasons, right? Or yeah, it’s it’s it’s it’s so wide open. I think the answer right now is we really don’t know. I think it’d be good to ask about and then secondarily to this um I looked this up. Um now back in the day with Voir Dire particularly as supplemental juror questionnaires, we would always ask like where do you get your news from, right? Which newspapers do you read? Stuff like that. Now, are you ready for this? This is 2000 uh this is like from Reuters and all these other polling agencies. Um in 2025, 54% of the general public is saying that they use social media sources for their primary news source often. And 33% essentially say like that’s their primary source. And a lot of these folks are, you know, under 35 years old. And so that’s kind of another thing where from a voir dire standpoint, is is there, you know, are we missing something here? Because, you know, the back in the day again, okay, what news, you know, are you a New York Times person or are you this, are you that or whatever? Um, and then, you know, are you you Fox, MSNBC, CNN? Now do we need to ask like what social media you know between I mean there like there are news stations which aren’t news there’s these influencers that have made themselves into news people right independent new in fact they’re now they have white house seats during the press conferences specifically for independent news people um and I think a lot of people are going to them because they’re sick and tired of mainstream media and what does that and what does that say, should we be collecting that data? That’s I think that’s another kind of Pandora’s box right there. Between that and AI, I don’t think anybody’s really asking jurors about this stuff. I think it I I think AI and use of social media for news purposes. I think maybe we should start asking about that. What do you think?
[14:46] Steve Yeah, I I agree because you and I both know and you have social media, you get essentially into an algorithm and before you know it, it’s showing you kind of the information that you want to see. Before you know it, you’re kind of in an echo chamber of sorts where if you know you’ve been clicking on certain links that have certain bents, whether it’s left leaning, right leaning, and then all what happens then your feed populates with the left leaning or the right leaning. And now that’s that’s where you’re getting all your information. So I do think it’s it’s important to to look into that.
[15:13] Bill Yeah. And and kind of why they’re doing that because I mean, you know, they could have a lot of distrust issues, right? Right. Things like that. So, I I think that is important. There’s no data on this. Um, we could start collecting data on that.
[15:27] Steve Might need to.
[15:28] Bill Yeah, let’s let’s let’s talk about that because that because we could test the predict predictive validity of that. Probably take a year to figure that out and collect enough data. But yeah, let’s put that on our to-do list, right? Got it. All right. Um, very interesting question. Question number question number two. This happened two weeks ago. I was like, here we go. Uh dear Bill, uh the judge the judge uh gave both sides in jury selection three to five questions max. So now it’s a state court, but it’s going to be handled like federal court. All right. Um what if I only have three questions? What do I ask? Boy, uh, if you get that question, Steve, that’s that’s pretty tough cuz it’s like you got to bake a cake and the recipe calls for 12 ingredients, but you only got you can only put three in. What are you going to do? I have some thoughts, but I’d like your thoughts on this.
[16:26] Steve I think it’s going to be obviously case dependent, but I think you’re going to want to stay away. And I know you will have some thoughts as far as whether or not you indoctrinate versus identify jurors. Um but I think for me from our perspectives at least from the the type of work that we do I think one of the first things I’d be looking at is kind of this whole idea of safetyism would be one of the first questions I’m looking at you know the idea of should corporations do what’s required or should they do go above and beyond and I a lot of times we identify a lot of pro plaintiff jurors that have unrealistic expectations of corporations by saying oh no the federal regulations are just the bare minimum you you need to go above you know you have the resources to do it. You’re a multi-million dollar company. You don’t get to say we just did what was required. So, that’s one of them that I think.
[17:13] Bill Yeah. And and we’ve worked on enough cases where like FDA approval or the FAA, no one gives a… right? Yeah. Um I think one of those questions absolutely has to be damages related.
[17:26] Steve Yeah. Absolutely.
[17:28] Bill Um and potentially depending upon what what the rules are some of those anchoring uh you know anchoring counter-anchoring questions exposing that whole process um I I think would be a strong um a strong candidate there right or just how people feel about damages overall I don’t think you can uh skip that if hell that may be two of the three depending on your case right.
[17:51] Steve Yeah I think another another one I would think of is kind of the the the process processing style. Are you more of a logical rational thinker or are you more who kind of thinks with your gut to kind of get that a sense for where are they coming from on emotionality versus logical?
[18:09] Bill Yeah, that’s that’s another big the problem is like you only have three questions. It’s like geeh good god, right? Where you get most bang for your buck. Um my personal favorite as of late and um I’ve had many audience members contact me. Um, so apparently the the that four-part uh I called it the disruptive voir dire series that went over really well. Everybody’s using those questions and going, “Wow, these really work.” Um, a lot of people are saying they love the pre-commitment questions to get people to um publicly commit to not being emotional when they’re making their decisions. And then the follow-up is now not now not only do you commit to do you commit to keeping your fellow jurors in line during deliber— So if you see somebody getting emotional making emotional decisions that do not follow the law, do you promise to reel them in? Now a couple of attorneys have emailed me, and I had a Zoom call with one yesterday. Uh they’ve actually agreed to come on the podcast uh in a couple weeks. This could be very interesting for a case breakdown. They said they use those recently and it worked like a charm and you just like plaintiff attorney is like panicking going what the hell is go what like cuz remember all these new voir dire questions that you know we came up with a lot of these no one’s ever heard of before because again that’s called disruptive voir dire we invented these questions using you know strict psychological approaches because we know that the typical voir dire questions we see pretty much suck. They’ve been recycled year after year and they don’t they don’t really give you the information you actually need. So, we’ve become very surgical with this. I think those pre-commitment questions would be up there. So, if you get stuck in a bind or if you’re going to federal court, right, it’s like yeah, yeah, give us a call. We can we can we can help you help you out. Um, a similar question. Yeah. I have a case where it’s judge conducted voir dire. Boy, that’s if that doesn’t scare you to death. By the way, who asked the very who asked the worst voir dire questions in the world? Judges, can you be fair and impartial? Can you be fair and good? You’re number one. You’re good. It’s like, no. Um, but we can submit questions. Any tips on submitting these questions more effectively. So, I’ve been in several instances where the judge is like, “Okay, plaintiff, you send me the 10 questions you want to ask. Defense, you send me your 10. That’ll be 20. And then I’ll pick the eight to 10 that I think are most appropriate.” And I’ve been involved in cases where the judge picks seven of ours and three of theirs. So, there is a way to do that. What are your thoughts on that?
[20:50] Steve I mean, I thought I think one of the big things that I’m always cognizant of and you and I have had conversations before about some judges kind of thinking what our role is in cases, you know, and sometimes it’s to taint the jury pool or to to really skew the jury pool. Um, which we know is not the truth. No. But I think though to help with that when you’re asking questions to ask them kind of in a neutral, more clear format where you ask questions that are open-ended that kind of help you elicit both sides versus being really tailored to like self-serving questions that you want to ask. Now, you can use those for your uh strike decisions and cause challenges, but write them in such a way though that they’re more open-ended and allows for both sides to have a thought.
[21:34] Bill Yeah. Another um thing that I have done uh which has worked very very well. It’s very subtle but uh so you submit your list of questions have a bullet point underneath each question with a very brief rationale for why the question is important to the court.
[21:52] Steve I like it.
[21:53] Bill Right. So, plaintiff submits their 10 questions. This is 10 qu— you submit your 10 questions with bullet points going hey your honor this is why this is important. Massive advantage right there. Right now, you want to put a paragraph after, but just a bullet point with a one sentence kind of rational of here’s why this is important. I think that’s a good uh idea, too. But boy, that’s a uh I would do some research on your judge and how they ask questions and stuff like that. But yeah, um what I’ve seen from judges and then judges start rehabilitating bad bad jurors. Oh, it’s just a it’s just a it’s just a nightmare.
[22:31] Steve I do like that explanation though because how many times have you heard where a judge doesn’t quite understand why a question asked, right? Yeah. And then they and then they think there’s they think they think one thing but your actual intention is completely different. So, I do like that idea.
[22:45] Bill Exactly. Exactly. So, there’s there’s a good idea. Okay, we’re through uh we’re through half of these making progress. Uh number four, this is uh this is very important. And I go over this uh in the speech I give on this topic. How do I anchor in opening if plaintiff doesn’t give a specific number, but they describe that they want a large amount from the the jurors? Do I still give a number? Uh we had a a recent case um we won’t say where it’s at or who is involved where I think this was misplayed. So what happened in that case which did not end well is uh plaintiff came out and in opening said hey you know in my closing argument I’m going to ask you for a significant amount of money and they they described the large did not give a number and the defense attorney came out and counter anchored with the number but there was no other right so there’s kind of a kind of a miss I’m a big fan of mirroring okay so so here’s the difference here, there’s a difference between a cognitive anchor and a financial anchor. So, when when Plaintiff’s Counsel describes the award using adjectives, right? That’s a cognitive anchor. There’s no number, but they’re they’re tipping you off. Hey, here’s what’s coming. I believe you should mirror that and say, we are going to offer in closing a substantially lower and far more fair— just anything if you even get there and then you mirror that effort right and then if they give a number in opening then you give a number in opening because you don’t want to have this um this this this mismatch but I think some courts and some judges essentially say I don’t want you giving a number in opening save it for your closing other courts particularly in like California God you first sentence out of your mouth in opening can be I want $100 million I’m going to prove to you why. Right. What are your thoughts on that?
[24:52] Steve Well, a couple things and I want to get your thoughts on it because I think it’s it’s going to be interesting. But I think first and foremost to your point about mirroring, uh, I think is a really good idea because the other reason too as you see is once you have thrown your number out there, you are now committed to your number. So, you don’t have any flexibility to go back and say, you know what, based upon kind of the case and case facts and how things are going, you know what…
[25:13] Bill You may change your anchor. You may change your counter-anchor based on what you heard.
[25:17] Steve Exactly. And so I think you don’t want to do that because you’re going to set yourself up to now you can’t go anywhere. You can’t change your and you and you might want to once you hear how high it is. But I do have a question though, Bill, that I think it’s interesting that I want to get your perspectives on though is talking about anchoring and financial anchoring and cognitive anchoring. If though you put out a number, let’s say it’s $500,000. Now you have jurors already thinking it’s okay this is what their counter anchor is going to be and then you’ve already anchored them kind of to what a floor would be so that when plaintiff and says I want $100 million now the jurors are going… because now they’ve already thought okay what we believe it the defense believes is fair and reasonable is $500,000 now plaintiff looks unrealistic because they’re asking for hundred million so I can anticipate kind of the push back probably that someone might give to say this is why I want to give the number rather than mirror it.
[26:11] Bill Yeah. Well, here here’s the thing. Um the golden rule here, which so many people violate, is you got to test these number. Steve, what do we do with jury research? We test the we know where the lowballing line is, right? We know why we test it. And you don’t know where it’s at. You think you know where it’s at. Oh, you don’t know where it’s at. So that $500,000, we’ve seen that. That could be highly offensive in some cases. In other cases, jurors like, “Yeah, I think that’s okay.” Right? The only way you’re going to get there is is testing it. Number one. And then number two, another again, this gets really complex. It’s listen, this is human behavior and decision-making is complicated. Hence why you and I went to college for 10 years to get PhDs to do this. If you’re not asking the right voir dire questions to prime them for your counter-anchoring efforts, what are you doing? Right? Jurors may not, some jurors may not, you know, those whole like, oh yeah, you’re lowballing type of juror. Well, if you don’t figure that out, you see, you see my point? So, this becomes really really complex and without the right word voir dire questions and then you have no data on what number to throw like how you making that decision. I don’t know 1.2 million sounds good to me right and I think and I’d love your thoughts on this um I I’ve become um and the the plaintiff bar has done this a lot and I agree with them. Um, I’m a big fan of the range as opposed to the number because I think some people can be like, “Oh, so you’re putting a value on like, oh, you just like where you getting this number. Why is it just a number?” Whereas, if you come across with a, hey, we trust you to make the right decision. Now, based on our analysis of this case, we think it’s kind of within this range. you decide and you give the jury all the power versus giving that we think it’s worth $500,000. I mean, it’s I think that can that can work to your detriment, right?
[28:28] Steve Yeah. And I think even that in and of itself is a little bit complex too because as we know is we need to you need to make sure your counter-anchor is actually tied to something logically.
[28:38] Bill Yeah.
[28:38] Steve So that’s what I mean I do like the ranges. I do like it but I think you have to be able to tie it back to something tangible because…Yeah, we think it’s three to 400,000. And well, why? I don’t know. Just because.
[28:47] Bill Here’s why this is fair. Here’s why this is reasonable. And here’s why this this is going to make this person whole, right? And I think if you can outduel the other side on that, it’s it’s going to it’s it’s going to make more sense. But again, that discussion has to happen in jury selection. So, when they hear it, there’s no geez, what are these guys doing? Right? They’re they’re well prepared for it. They they know what’s coming. There’s no push.
[29:13] Steve I think I think though that’s one thing that we haven’t seen enough of though is is tying it back and giving a number that’s tied to to logic and reason because if you want to talk about what’s fair and reasonable and you want to talk about being being rational and logical versus the kind of just throw out a big number, you you have to tie it to something so you look rational, you look reasonable. So, you can go back to say look at we’ve given you the numbers, we’ve given you this, we’ve given you the reason why we believe it’s this. um versus just kind of, hey, we think it’s worth, you know, pain and suffering is worth $10 a day for the next 70 years. Where did you come up with $10 a day for the next 70 years?
[29:48] Bill That’s what they do on those uh those commercials. It only cost you 39 cents a day to make a difference in some, right? And then you’re like, “Wow, 39 cents.” Yeah. But then you start doing the math over the year, right? They don’t they don’t go to the the full sum there, right? Yeah. Interesting. All right. Uh, question five of six here. Uh, I think this is an important one. How much does case selection impact nuclear verdicts? No one talks about this. Like you read all these nuclear verdicts. What’s the first thing that goes to your mind, Steve? Why in the world is this case in front of a jury? Right. What were you thinking? What? What? What? You picked the worst case you have and you took that one to trial.
Oh my god. Yeah. It’s like you gotta know again, Kenny Rogers, right? You got to know when to hold them. You got to know when to fold them. You got to know when to walk away. Steve, you got to know when to run. And you see some of these cases and you’re going, why in the world?
Hey, so two questions, right? A number one. Why in the world did you pick the [__] case you have to take to trial? That’s a loser. Number one. And then number two, which it just baffles the mind. You didn’t do any jury research. That’s that’s potentially the worst combination. In fact, and and then and then you get on then you get on LinkedIn. Now, I’m going on my rant right now. Here we go, Steve. Then you go on LinkedIn and go, “These jurors are crazy. This is out of control. We need tort reform.” And I’m thinking, “Well, look what you just did.” Okay, I’m going to stop there because I I’m going to lose my damn mind. Blame the jury. Yeah blame the jury. Oh, these jurors are crazy. They’ve lost their mind. Have they? Have they? I’m not so sure.
[31:51] Steve You have a case with a catastrophic injury to a to a child from and then you go through and let’s say it’s let’s throw a trucking case out there. Then you go through and then you look at the history and training of the driver. You look at all these…
[32:05] Bill And he was on meth at the time.
[32:09] Steve Yeah. But I mean it’s okay though. I mean it was just a little get around that one. Yeah.
I think that’s the value. That’s the value of the jury research too. I think is is you go and you test it and you’re like this is a nuclear verdict waiting to happen. How many times have you and I said this is a nuclear verdict waiting to happen.
[32:28] Bill Yeah. This this this is not or or this is one like like you really need to admit liability. Like there’s there’s there’s no way around that. It’s like that’s the whole purpose of the jury research. Now on the other hand, we do lots of jury research where at the end we’re like, “Okay, this is a case we do want to try.”
[32:48] Steve Yeah.
[32:49] Bill Okay. because statistically we know we got a lot of people on our side and or we’re probably going to lose but but we know jurors don’t want to make this one a lottery ticket because the plaintiff has some key— you need to do the research to make those decisions. The problem is a lot of these decisions are being made very hastily and and gut feelings and hunches and it’s just not a it’s just not a good way to do things. Happens all the time though.
[33:20] Steve But I think sometimes you have to be honest with yourself too is after you go through like a focus group or a mock trial and you get really really bad results that you yourself thought the case was really strong and then you hear from jurors that it’s not. You need to step back and then reassess to say, “Okay, maybe we thought this was defensible, but you know what? Now that we think all these things come to life, we hear the plaintiff’s side. We hear the arguments. We hear how that resonates.”
[32:42] Bill Steve what the heck have I always said? The truth is always messy, and they don’t want to hear. And listen, I I get it. attorneys, you you live— You have this case. You’ve been working your ass on it for three years. You have a lot of strong cognitive and emotional thoughts and attachments and emotions into this case and then you do the jury research, and you get your ass handed to you and then you start fighting with the mock jurors. So, so after the nuclear verdicts, oh, these jurors are crazy. Then they’re saying to us, you’re you got the wrong jurors here. This is imp— And they start arguing with us. You’ve seen it. Yeah. They start blaming us cuz you have a bad case. You just don’t just don’t like the results. Wake up call.
[34:39] Steve But I think the other thing too is in in the defense of defense bar that we always talk about is that they need to try more cases. But I think it still goes back to you need to be realistic of what you should try. And absolutely you and I are strong proponents of hey, let’s go to trial on this. Let’s not settle. Yeah. Um but but there’s also the flip side of it, too. So, I think just being realistic of yes, there’s we we think you should try and we we fully appreciate and want you to try these cases, but then there’s a subset that you just need to stay away from.
[35:09] Bill Yeah. And you got to do the homework. But again, if you don’t want to spend the money and put in the time and do this the right way, you’re just you’re going to make terrible decisions. That’s what it is. Thankfully, we have clients that have figured this out.
[35:23] Steve We have great clients. Yes.
[35:26] Bill Yeah. But then we still get some phone calls and I don’t I don’t know if I really want to. I’m like, the demand is $75 million and we’re we’re arguing about jury research whether or not to are you crazy? That’s insane. That’s insane. Oh god, I think my heart rate just went up. I’m getting a workout during this freaking podcast. Speaking of workout, I think you’re going to go on a rant on this last one. Question number six. This is, and man, this gets updated like by the day because I follow all this on social media. Um, what are the updates on I did a podcast on this. Um, what are the updates on how the plaintiffs’ bar is using social media to change and improve their ambulance chasing stigma? Now again, historically, two areas here, right? Billboards and TV commercials that are beyond cheesy. I just beyond cheese. I mean, the billboards I still laugh at them. Some of them are pretty creative, right? Like the whole Morgan and Morgan size matters. I’m like, hey, very well played Morgan and Morgan. But most of these, right, it’s a picture of this attorney, right? His teeth are painted bright white. Call Joe at you. 1 800, you know, right? And then the the stupid number they have that spells out something idiotic, right? And you see these up and down the interstate. Like that’s the traditional way. And then the god the the TV commercials, Steve, are so they have them. They have them here in Orlando. I’m not going to tell you a law firm. It’s not Morgan Morgan. It’s different guy. And it’s the same commercial. And but Steve, it’s so bad. It’s so bad. They have some like—So they put on this couple, right? One of them like she has three teeth. He has a mullet and they’re like, “Joe, the attorney got us $300,000 after a truck, you know, plowed in the back of us.” And and you’re just sitting there going, “Oh my god.” You know, she’s wearing a mumu. He’s he look he’s wearing a NASCAR shirt and you’re going, “Oh my god.” Right? But that’s historically been how it is.
However, and I I look at this stuff daily, speaking of the algorithm, particularly on TikTok, a lot. There’s a lot on X, but TikTok’s so visual is like every plaintiff’s firm in the world has gone TikTok and they’re putting out videos to completely change their image for them to come across. We’re not ambulance chasers. Like, we’re here to help you. And I got to tell you, and I’m going to get a lot of hate. The hate mail is going to come in after it. I think they’ve done an exceptional job at um changing public perception. I think many of the TikToks I’ve seen that have come from plaintiff firms have been highly educational. I think they’re coming across as good human beings. I think they’re getting rid of those stigmas from the billboards and the TV commercials that are cheesy as hell. Um I think many of these um some of them are very educational, right? Like here’s how the legal process works, right? They explain discovery or they explain like here’s what not to do if you get like here’s what not to do. It’s very educational and I’m like damn and and they come across really really well. The other ones I’ve sent several of the I sent you the some of these are hilarious. I mean absolutely like I’m belly laughing at these things. Oh god, that was damn good. And if you’re in the public and you’re watching these, right, it it I think it’s naturally going to change the perception. What are your thoughts on the plaintiffs’ bar using social media to change their image with the general public?
[39:26] Steve Well, first they’ve done a really good job. I’ll say that they have because you can see you can see the reactions that people have um to it because if you go to the comments section and you look, you’ll see like best lawyer I’ve ever had. If I ever got sued or if I ever had to sue, I’d want to hire him. Uh, so I think they’ve done a really good job of kind of normalizing what they do, normalizing the roles, normalizing litigation. You know, the whole idea of the tort reform going back where all these frivolous lawsuits and that people will sue over anything, that’s kind of gone out the window where people now say, “Okay, there’s a lot like there’s a lot of merit to a lot of these cases.” And I think one of the other things I’ve seen that’s really frustrated me that I told you about is they’ll call out certain either it’s the insurance industry.
[40:15] Bill Oh, it’s they are crushing—ready for this? Not just the industry, Steve. Now, many of these videos they’ll say now here’s what the insurance company does and we’re going to we’re going to make sure you don’t get screwed by them. That’s a big theme. Some of these guys are like pointing like All State, Progressive, State Farm and just wailing on these specific insurance companies over and over and over again and you know, so you combine that uh with kind of the general frustrations that society has with insurance companies. Ouch.
[40:48] Steve Yeah. And the one you sent me, I won’t name the client or the name the the the company, but they call them out specifically in the video, right? Um and just dump on them in the video. So once again, you’re getting it out there. So, you’re starting to create these negative perceptions of very specific defendants uh when you’re when you’re doing it as well. And all of it is really one-sided, of course. You know, if you if you they all sound like complaints, right? We all know when we read complaints, you hear all the nasty bad things, and you don’t have an opportunity to hear the defense side. So now you’re just inundating with this very like look at this company, they’re really, really bad. Look how they treat their employees, you know, bad, bad, bad, bad, bad bad without the ability for the those companies to kind to put out a different message to say look, there’s two sides to both stories. So really all you’re getting is the one side. And the defense bar or the insurance companies or the trucking companies haven’t really done a lot to counteract that.
[41:40] Bill Almost zero. Now, I did send you the picture. I could not figure out which state that was in. I think it was Louisiana. There was a billboard I sent you that he said sends the message was about lawsuit abuse, right, by by plaintiffs. Um, other than that, I mean, there’s no like counter message here. This it’s a massive PR problem for not just the defense bar. It’s more of the insurance industry.
[42:10] Steve Yeah.
[42:10] Bill Not now. I I know um I can’t say anything um because I’m taking part in some of this that’ll probably come out in the fall. There are some efforts by some but very new and they’re very slow efforts um from more of a PR uh campaign to educate the general public. So, so, so again, so the stigma that the plaintiff’s bar face faces is the whole ambulance chasing thing, right? And they’re trying to get away from that, right? Is a greedy ambulance chases blah blah. That’s kind of the stigma, right? And they don’t they don’t want that. So, they’re working through it. The problem is the insurance industry. It’s not the defense. The defense bar doesn’t have a stigma. The insurance industry has a stigma, and we all know what that is, right? Is that they screw everybody over. You pay these high premiums and then when something bad happens, they don’t they don’t cover you or they cover half of it. Oh, trust me, I’ve been through that, right? And there’s no work being done to address that stigma. And so, you know, time goes by and then you you get you get jurors showing up for jury duty. Do you blame them for feeling the way they feel?
[43:21] Steve Yeah. No. And I think when you and I talked the other day about I’m curious about how all of this beating up on the insurance industry isn’t somehow circumventing the whole idea is when you get to trial you can’t talk about insurance. You and I talk with jurors on a daily basis. How often do they bring up insurance all the time and we have to be like you can’t consider that. You can’t consider that. But they they all know about insurance. They all know that there’s probably an insurance company tied to that. And I got to think some of it comes from these advertisements that it’s just dumping on the insurance companies. So, I’m curious about how that’s and maybe it’s a coordinated effort that that’s been done to do that to circumvent bringing up insurance. So, you bring it up in the social media space. By that time you’ve harped on it. You don’t need to say anything at trial, and you don’t have to worry about it. But it’s already in jurors’s minds that they know that there’s probably an insurance company tied to it. So, then everybody is upset with the insurance company. So why not give a big verdict because ultimately, it’s not the company’s money. It’s going to be from the insurance company.
[44:18] Bill Yeah. And then you have this, you know, this CEO that got murdered in Manhattan earlier in the year. And then, um, you know, when data comes out about, oh, wow, that the CEO of this insurance company makes $35 million a year. That rubs people the wrong way, dude.
[44:36] Steve Yeah.
[44:37] Bill You know, or look at their profits, look at their stock price, and then, you know, your your roof leaks and they go, “Nah, we’re not covering that.” Well, yeah. I mean, what do you expect people to… So, I this a big problem. This a big problem.
[44:53] Steve It all goes back to smart advertising on the plaintiff’s side. One other thing we didn’t even talk about that you and I are uh addicted to is watching depositions online.
[45:06] Bill Oh, yeah. Yeah. Let’s finish with this because um it’s a it’s a treasure trove of uh yeah just go to what YouTube and just type in deposition bad deposition medmal dep trucking deposition construction deposition police brutality deposition, just pick your deposition and it’s going to be an endless stream which you know you know unless something’s sealed I I guess it’s public record um many people are shocked to know that. Um I know that during speeches and witness training a lot of witness a lot of people in the like like well do you have permission to show that dep? I’m like screw you. No, this is on this is on YouTube. I don’t need permission for anybody to show. No, I mean you just go look it up right now. Um, and people like, “Wait, wait, that’s on the internet and there are many plaintiff’s firms that not only do they have their YouTube channel where they’re putting this on, they put it on their own uh website of, hey, you know, here’s three minutes of me beating up a corporate rep. That’s why you want to hire me as your plaintiff attorney.” And they put the deposition on the website. Now, is this ethical? I think that’s probably debatable. Is it legal? Obviously, right? Um, but this is something that uh yeah, tell us tell tell us your thoughts about that.
[26:34] Steve Well, I think you know it’s it’s a little bit of solicitation as well, I think, to what what you just said. That’s why I don’t know how ethical it is, but that’s what it is is watch how I dismantle this witness in a deposition. And then once again, go to the comments. This attorney is great. I would love to have them. Always a professional. And then what you always see on the flip side is the witness always gets dumped on. So, like it’s going up there and nobody ever really sees.
[47:00] Bill It’s not the good ones.
[47:01] Steve Yeah. Maybe it’s because the depositions suck. There’s no good ones. So, they always are like, “Yeah, this this person is terrible. What a what a terrible physician. Oh, this guy gives me the creeps.” So once again, just inundating and having all these people interact on social media just further putting in that in their minds about the perceptions of plaintiff attorneys are doing a good job. They’re fighters for injustice for the little guy and all these people that are on the other side are the bad guys.
[47:31] Bill Yeah. Now, funny enough, when and then we’ll end on this. So, if you go to YouTube and you’re looking up, you know, these types of dep what inevitably comes up and you’re gonna laugh your ass off when when I say this is these uh deposition training videos. Oh, these are hilarious. How to be a good deponent. Oh my god. Oh my god. Are they so bad? So bad. Oh, they’re so bad. They’re just so bad and just flat out wrong. You ever watch a couple of those?
[48:07] Steve Oh, it’s I usually get through I usually get through a little bit just because I’m curious and then I have to shut it off because I get frustrated.
[48:12] Bill It’s really really frustrating because the advice is so bad. It’s so bad. So, I do tell and I know that you tell your witnesses during witness training. I’m like don’t be don’t be go because some witnesses will say okay because they’re invested. We work with a lot of witnesses that want to be better, and they say what can I do? because we’ll be like, “Okay, now you know your job in between, you know, review the documents given to you by by counsel, whatever.” Like, “Well, is there any other materials? Is there a book I could read? Are there videos online?” And you and I are like, “No, no, no, no, no, no, no.” Because number one, that’s discoverable. But could you imagine if the witnesses went to one of these sites and oh, disaster, train wreck, absolute disaster. So, okay, this is a really good episode. Really good questions. Uh, Steve, thanks for coming on. Dog days of summer. Um, and then I think we all just desperately need college football is the way I pretty much am seeing it.
[49:12] Steve Yeah, I think that that can’t come soon enough. The days of just blocking out all of a Saturday and watching from roughly 10 a.m. to 10 p.m. Sounds like a good good distraction from work.
[49:23] Bill Yeah. Okay, before we leave, how about this? How about this? Now, this will post this will probably post in August, right? Um, so we’re we’re going to be pushing towards um October here in in the blink of an eye. Um, let’s let’s let’s get our World Series picks in right now because we’re right about the midway point, right? Um, all-star game uh break. Got trade deadline coming up. Give me give me give me your two World Series teams right now at the break. I know it’s completely unfair, but this is this is this is kind of tough. This is kind of tough.
I can tell you who’s not going to be there is gonna be is which is the New York Yankees. I probably can’t use the Yankees. No, they can’t. They’re not going to get it together. Somehow, they did it last year. I I just I just don’t see it. Theoretically, they can, but from the American League, I I just I just my faith in the Yankees is just is just not there. Who do you think American League?
[50:23] Steve I I mean, as much as I hate to say it, the Astros have tend to always look good.
[50:27] Bill I gotta I gotta agree.
[50:30] Steve It pains me to say that.
[50:31] Bill I was gonna get I say that, too, but I think the Astros, who by the way should should be a National League team. Um, whole different debate. Uh, because they were a National League team. Um, but I that’s where I’d be leaning right now based on the organization uh the talent um and just the consistency of of that organization. I think in the National League it’s interesting and I think the key question is can my Cubs or even the Mets or…Yeah. Do the Padres’s… Can somebody knock off the Dodgers? The Dodgers are just a powerhouse.
[51:06] Steve Yeah. I just I just I don’t see it. I mean, I’d like to see the Cubs. The Cubs are playing well, but the…
[51:11] Bill They’re young and on fire. They could give them a run. I think if they get a pitcher before the trade deadline to load up for the for the second half of the year here. But I love love to see the Cubs sneak in there and upset the Dodgers just like they did back in 2016. Um but I I I think I I think right now what do you think? Dodgers Astros.
[51:36] Steve Yeah. Unfortunately.
[51:37] Bill That’s where my that’s where my head says. That’s what my head says. My heart would be Cubs Yankees.
[51:46] Steve Yeah. Well, are you are you a type of person, Dr. Kanasky, who thinks with your head or your gut? Going back to our voir dire questions.
[51:54] Bill Well, lately I’ve been thinking with my my brain, not my heart.
[51:59] Steve Well, then it’s Astros Dodgers.
[52:03] Bill It’s probably going to be Astros Dodgers. But you know what? Everybody likes a good upset, Steve. Everybody likes a good upset. But you never know. Met the Mets have looked great this year. Mets could sneak in there. We’ll see.
Hey, the Cubs have been very successful this year so far against the Dodgers head-to-head. So, they’ve shown they can they can play. Um I have a little bit more faith in the Cubs than the the Mets, but ehh we’ll see.
[52:29] Steve Yeah, I I’ve actually been kind of upset that I haven’t been able to send you uh anti-Cub memes uh this year because…
[52:38] Bill Yeah, there’s nothing to make fun of yet. Yeah, save that for the Bears. Save that for the Bears.
[52:43] Steve Oh, I got them. I got them loaded up for the Bears. Don’t worry.
[52:45] Bill We will talk about that. We’ll we’ll we’ll do an NFL uh preseason show like we usually do and we’ll we’ll talk about that. Um but Bears’s got a better coach, so I’ll save it for that. But hey to our audience uh thank you for uh listening in. Please leave us a review on whatever platform you are listening to or watching. We like reviews. If you hate us, that’s fine. That’s fine. Uh but if you love us, we want to hear about it as well. Uh any feedback is good feedback. Uh so yeah, thank you to our audience and uh thank you for participating in this edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. We’ll see you next time.
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