Episode #282 – Win More by Using All the Pieces of the Litigation Puzzle

Bill Kanasky, Jr., Ph.D. discusses setting proper expectations when it comes to managing litigation and the relationship between each element in litigation. For example, Bill highlights that success in trial depends on a constellation of factors, not just one element like jury selection, and that defense teams often place too much weight on a single component while neglecting others. He explains that having a consultant present for jury selection without supporting jury research is ineffective, comparing it to a surgeon operating without diagnostic scans. Meaningful jury selection requires data to build juror profiles and well-structured, insightful questions and follow-ups to extract useful responses to identify safe and risky jurors.

Bill stresses that winning cases demands balance across all stages of litigation: witness training for both deposition and trial, early and iterative jury research, scientifically-based voir dire, and tested and compelling opening statements. He notes that even a perfect jury selection is useless if the attorney is delivering a poor opening statement or putting up unprepared witnesses, and that cutting corners in these areas leads to predictable losses. Instead, he urges defense teams to invest in comprehensive preparation and ongoing training to strengthen performance across the board.

Lastly, Bill shares a recent example of a defense verdict that came down to witness credibility and preparation. He outlines the techniques that led to success including the witness controlling the pace, avoiding argumentative “pivoting,” and keeping testimony clear, concise, and authentic. He closes by encouraging law firms to adopt structured, science-based training for attorneys to move the needle toward more consistent defense wins.

Full Episode Transcript

[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky, rocking and rolling. How is everybody doing? Everybody breathe. Every everybody needs to take a step back and breathe. Man, you’ve all been sucked into the matrix been doing some doom scrolling. Have you? All right. Okay. Deep breath. It’s what I tell the witnesses to do, you know, during the breaks. It works. Four seconds in, hold it for two, about six seconds out. Little box breathing action. Okay, everybody chill. I know times are tough. World is crazy, but we’re all going to make it. But you got to chill, breathe, communicate, take a chill pill, and listen to the Litigation Psychology Podcast. See, so anytime you’re about to lose your mind because you’re doom scrolling, you’re mad at society, mad at the world, just flip on the Litigation Psychology Podcast. You’re going to you’re going to learn two things that are always going to happen on the Litigation Psychology Podcast every single time. Number one, you’re going to learn something new. And number two, you’re going to laugh. Those are my two jobs. And I got to do both. The education part alone is just, is just boring. It’s just boring.

[02:19] Bill So, do I have a rant today? I may. That was kind of a rant. I was kind of preaching there a little bit. I may get a rant by the end of by the end of this episode. I I I’ll try to come up with a rant. Uh nothing nothing comes up to mind right now, which is kind of unusual. However, I do want to talk about expectations. Expectations. So, defense counsel, clients’ expectations. Now, I had an interesting client Zoom meeting the other day in which I kind of had to point something out because this client was going berserk over jury selection. The importance of jury selection, always need a CSI consultant at jury selection. Okay. However, they were ignoring a lot of important things. Remember, this is a constellation of factors, folks. All right? Constellation of factors. And my point is, by the way, we cannot work on every jury select. We’re too damn busy. And none of you none of there’s my rant. None of you call on the time. Not none of you. Let’s say 80% of you I just like nobody listens. You’re you’re calling you’re calling me demanding all this stuff and your trial’s in three weeks. Are you are you kidding me? How many times are we going to say this? I don’t understand. I don’t understand. What is the deal with that? That’s my Jerry Seinfeld. Are you kidding me? I I mean I I just don’t understand. Right. You you you know, yeah, my trial’s next week. What? Oh, God. What do you want? What do you want? We book up We book up a solid 45 days, sometimes 60 days ahead of time.

[04:42] Bill And so, this client is going crazy because we’re not available to be on every single jury selection. And here is my response. There’s a couple things I want to talk about here that in my experience of doing this for 24 years now I I think is absolutely true. Uh, number one, having having a jury consultant next to you to pick the jury without any corresponding jury research for that consultant to use is pretty much useless. Blasphemy? Perhaps. But you know we don’t have crystal balls. Getting phone calls, just show up and pick just show up and pick this jury well based on what? Do you send do you send a surgeon into the OR with the scalpel going do surgery okay well I need an MRI and an X-ray and a CT scan to know no we don’t we don’t need all that you’re a doctor you’re a surgeon here’s a scalpel. Go do—No. This is not how it works. No. So, the way the jury consultant functions the best is they need data. Like the surgeon needs the MRI, the X-ray, the CT scan. The jury consultant needs the data from your focus group, mock trial, whatever. Otherwise, what are you really doing? If any jury consulting—If any jury consultant told you, yeah, I I’ll show up and I’ll I will I will pick your jury. And they and they don’t demand any data. They’re just going to show up and do it. I I have no earthly idea what they’re doing except for following a bunch of stereotypes. That doesn’t really work. “Strike all the poor people. They hate corporations.”

[07:03] Bill Okay, now getting back to the main point. The way to succeed in jury selection is you have to ask the right guy. Turn this damn phone. See I I got my alerts. Okay. I need to there vibrate. Okay. The way to succeed. That was my bad. My bad folks. My bad. That was a major major foul right there. Always put your always put your phone on mute before the podcast. So, I I fumbled first quarter of the game. I fumbled. Okay, the point being you need to ask the right questions. Number one, consultant or not, that’s really really important. But here’s but it’s it’s a kind of a three-phase model here in jury selection. And again, most tri—I mean 999.999% of trials don’t have a jury consultant there and the defense still wins. Okay, number one, you got to ask the right questions, but there’s that’s kind of the meat of the of the sandwich, right? The two pieces of bread are you got to set up the right questions and then you got to ask the right follow-up questions. Two things that rarely happen. Go back and listen. I had breakfast with an attorney client and I I would call him a friend. We’ve we’ve been working together and known each other about the same age here in Florida and we just had breakfast. I just got back and um he’s a he’s a really good guy. We we’re we’re talking uh about this and talking about he has a lot of trial experience and he’s talking about particularly how younger attorneys um during the jury selection, you know, the voir dire process, um they kind of jump right like right to that question. They don’t set it up and they don’t follow they don’t ask the right follow-up questions.

[09:23] Bill So, younger attorneys, keep that in mind. What he also said, which was really the point, is he said he’s a he’s a podcast listener and he said, “Hey, I he he’s like that four-part series on the disruptive voir dire. Oh my god, I listened to that multiple times. So useful.” I’ve been—So if you listen if you have not listened to the four-part series just which was this year probably two or three months ago on the disruptive voir dire, it’s going to blow you away. Disruptive disruptive disruptive that’s my job disrupt and move the needle move the needle that’s my job that’s what I want to do it’s kind of what I always have been doing but I never really talked about it like that but that’s my goal I I want to help you move the needle. Okay, so back to the story. So, I’m talking to this client and she’s just, “Well, if we don’t have you there for jury selection, oh my god, blah, blah.” No. I’m like, “No, it’s it’s okay. If you’ve done your focus group or mock, you’ve done your mock jury stuff and you have the right questions and know how to ask them, you’ll be fine. They’ve done their jury research. They’ve got the data. We are going to help the legal team with descriptive questions in the right order to prepare them for jury selection and they’re going to be fine.”

[11:06] Bill Okay. I had to tell her, I’m like, “Listen, stop flipping out. We’re not going to be able to be there every time. The best thing to do is to have defense council ramp up their voir dire game. And I would argue and boom, my new p—new new jury selection. I got two new jury selection papers coming out. First one’s coming out here right before the end of the year in CLA magazine. Okay, attorneys, you got to study the science of jury selection followed by it’s the art of jury selection. Two different things. Okay. The science is the questions, the orders of the questions. The art is the setup of the question. The art is the follow-up questions. Okay, you got to combine both of those. Got to combine both of those. Okay. So, then the client on this call finally settled down. But then I went on my rant because that’s what I do. I do it well, too. I I’m a good ranter. And I said to this person, I said, “Hey, let’s let let’s make some assumptions here.” And let me tell you a little story. I go, you could have perfect jury selection and perfect jurors, 12, 8, 6, whatever your your number of jurors. You could have a perfect jury, and if your opening statement sucks, you’re going to lose. And everybody on the Zoom just silence.

[13:04] Bill So, one of the biggest skills I teach in opening statement is the use of repetition, how to use that wisely and combine it with silence, which is what I’m going to do with you right now. And I said, let me repeat that again. Perfect jury selection. Perfect jury. [__] opening statement. You will lose. Mhm. Then I ramped it up. I ramped it up one more notch. I go, “Perfect jury selection, perfect jury, fantastic opening statement, and your top two witnesses implode on the stand. You’re going to lose.” Okay, it’s a—we we have to cover all these bases. We have to cover all of these bases and talk about expectations. So, what I see clients doing and and listen sometimes, you remember every every blind squirrel finds a nut once in a while is I see this corners cutting, right? Is they call and they’re like, “Well, yeah, help me on the opening statement, but don’t worry about the voir dire. Don’t worry about the witnesses and we don’t need jury research, right?” It’s risky. They go, “Yeah, let’s do a focus group.” Do the focus group and like it’s pretty clear these witnesses need help. No, no, no. We got the witnesses. It’s like painting half of your house. I I I don’t, right? God, my phone is lighting up. Lighting up.

[14:48] Bill Okay, so that’s kind of how that story worked is I was kind of trying to educate the client like you can’t put all your eggs in one basket. It’s not all about jury selection. Is it important? Absolutely. It’s it’s it’s one step. It’s a pro—this whole thing is a process, folks. Then very interesting, let me tell you. So, this whole podcast is going to be about two stories. That’s I’m just I’m just kind of out here talking. It’s my podcast. I can do what I want. Then, uh I got a I got a another random LinkedIn message in my in my DM. The the main partner, founding partner at a at a law firm said sent me a message and said, “Hey, I listen to the podcast.” And by the way, I’ve gotten this now I’ve gotten this message and phone call multiple times now in the last two years. And this multiple paragraph DM essentially said, “Our attorneys need training. We need to be better, and we need more training and education and we want you to do it cuz you’ve got your [ __ ] together. We listen to we all listen to the podcast. We read your papers and can you help us?” So, we set up a call. This attorney was very proactive, very cool, by the way. Had another partner on and said, “We’ve we’re losing ground. We’ve got to keep up to speed with the plaintiff’s bar. Can you help us? Here’s where our plan.” They already had a plan. They’re like, “We have this partners meeting, which is supposed to be educational once a month. Can you come multiple months in a row and and and present on these topics that you’re podcasting about?”

[16:57] Bill Yeah. I said, “Yeah, abs—Absolutely I can. Absolutely I can.” So, I think we set it up for six six months, one hour a piece, and I’m going to cover various topics on, you know, witness performance. Have to break up the see the voir dire part’s kind of long. We’re going have to break that up into probably two parts. Opening statement two, that’s going to have to be two parts. Jury research I can handle in one. I can handle that in one part. Okay. And what they want, which is the whole, it’s called Courtroom Sciences for a reason. Sciences. Again, not to bash anybody, but yeah, a lot of my competitors are at they’re they’re attorneys that don’t practice anymore, and they’re quote unquote consultants. I I have no idea what they bring to the table. I really don’t know how they they go about things. No idea. So, kind of the second part of this podcast here, the point being is attorneys, defense attorneys, there if you think you’re if you if you think you’re going to develop your young attorneys and middle-aged attorneys by sending them the DRI conferences to get better, you’re missing the boat. Mm-m. We’re happy to do that for you and work with you to be better and more proactive and more aggressive in discovery, pre-trial, and peri-trial during trial.

[18:58] Bill Okay. And again, we we we I I have data and science behind everything that we do. And we and we we we want to we want to move the needle. So, if you’re interested in moving the needle, please reach out. If you’re not and you’ve got it all figured out, hey, good for you. Leave me alone. You got to if you if you’ve got it figured out, really, hats off to you. Best wishes. Um, congratulations. There’s there’s many out there that many out there that that have not figured it out. Moving the needle. That’s what we’re doing. Boy, this podcast episode’s like I don’t even have an outline. This is like a potpourri. It’s like a potpourri. Okay, final note. Got a nice, really nice defense verdict yesterday in in South Florida, which is no easy venue. And the key to this case was going to be witness credibility. Uh I spent two and a half days with the defendant, a driver who completely uh bombed his dep, got very emotional, annoyed, aggravated. I mean, really, you know, fight or flight. Oh, he was not flight. He was he was fight. All right. And um I got called in late, but I’d never worked with these attorneys before, very good attorneys, and um put him through two and a half days of training to prepare him for trial. And he rocked it.

[20:43] Bill And you want to know why he rocked it? I’m going to tell you why right now. Number one, because this is the system. Number one, he controlled the pace of the interaction between him and the cross-examiner. See, in the dep, it was boom, boom, boom, boom. Question, answer, question. Boom, boom, boom. It was going to 85 miles per hour. At trial, oh no, no, no, no, no. Ball control offense. We slowed it down. Slowing it down increase cognition, decrease errors, increase emotional stability, decrease anxiety, and allows the jurors to keep up with the interaction, control the pace. He was going at school zone speed during that cross-examination. Plaintiff attorney flipping out trying to, you know, fire questions at him back and forth. Hi. Sorry. Saying hi to my wife. Um, so number one, control the pace. Number two, and boy did I drill this into his head because we know that jurors hate it. Why? Because we collected data on this. I just released it on LinkedIn. Jurors hate pivoting. They hate pivoting. Yeah, but yeah, but yeah, but yeah, but you got to own your [ __ ] No, because. No, because. No, because. No, because. That’s argumentative and defensive. Credibility killers. Listen to me. I have the data to prove this. I just put on LinkedIn. Jurors can’t stand it. They don’t like evasive witnesses. And the people out there that continue to teach these, “Yeah, but yeah, but yeah, but,” telling witnesses to stick it to the plaintiff attorney, are you out of your mind? Not happening.

[22:42] Bill Jurors don’t like it. It kills credibility. And during this examination, this witness kept his head high, never pivoted once. Importantly, which is what the jurors want to see. We know this, too. We have the data. Jurors want witnesses to own their conduct. Good, bad, or indifferent. Own it. You’re speeding. You own it. Not, “Yeah, but yeah, but yeah, but,” you own it. Yes, I was. Okay. There’s an incredible amount of respect jurors have for that. But when you’re dancing around it and then the plaintiff attorney, this is the—the plaintiff attorney has to ask the same question four times because your witness is not answering it. Credibility killer. Listen to me. Many still don’t get this. Pivoting kills credibility and I have data to prove it, but nobody listens. Third, during rehabilitation, I worked with the trial attorney. Number one, we kept it short and simple. No long crazy answers. Short, concise, tight, on target answers while being authentic. Okay? Well, being authent—authenticity leads to believability and trustworthiness and that’s what we want. Okay? Now, during some of the training sessions, this witness went off. Tell me what happened next. And he starts talking for two minutes. It’s like, whoa, whoa, whoa. Hey, hey. Number one, you look desperate. You look desperate talking like that. Number two, no juror is going to be able to follow that long answer. Number three, like you’re answering six questions at once.

[24:59] Bill One question at a time. Wrote a good paper on that. Chunking versus streaming of information. Juror short-term memory and attention span is 5 seconds. Five. It’s all you got. 5 seconds is plenty. That’s one long sentence or two short sentences. It’s the perfect delivery mechanism for the juror brain. Anything more than that, the jury, they cannot pay attention and they cannot follow it neurologically. It’s just it’s just it’s impossible. So, defense attorneys, break up your questions. We want this to go nice back and forth balance. Information comes out chunk by chunk by chunk. It’s why it’s called chunking. 5-second chunks. Maximize juror cognition and comprehension streaming of information does not work. Those are the long rambling answers. Puts the jury in a terrible position. Terrible position. So, but really good news to get a defense verdict. It’s always nice. Always good. All right. So, this podcast was kind of a I was kind of all over the place. Um, but I think some good stories, some lessons to learn here. Uh, if if you’re interested in kind of private CLEs/training for your attorneys, reach out. We’ll tell you what that looks like, how much it costs, okay? What that syllabus looks like because I know there are many of you because trust me, you contact me. You want you want to get ahead. You want to get ahead and you want to be able to move the needle. Well, we can help with a lot of that. Help with a lot of that. All right, enough for today. Litigation Psychology podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky. We will see you next time.