Episode #283 – Comparing the Outdated Food Pyramid to Jury Research

Bill Kanasky, Jr., Ph.D. talks about what attorneys and defendants get wrong about jury research. Defense teams that follow the traditional jury research model and only conduct mock trials ignore the scientific method. If you want results you can have confidence in, you have to follow the proven scientific method. Bill describes the two biggest issues with mock trials:

– conducting a mock trial as the first, and often only, research project invites a significant amount of error into your results, risking false positives and false negatives

– mock trials are built on argument and persuasion and when presentations are not balanced and when the presenters for both sides are not equal in their communication skills, their persuasion skills, and their appeal to jurors, significant bias can skew the results

The solution is to follow the scientific method and conduct focus groups before the mock trial. Focus groups allow the defense team to find hidden vulnerabilities and juror comprehension issues and avoid false positives and false negatives well before conducting the confirmatory research step that is the mock trial. The focus group is the necessary screening tool for litigation.

Full Episode Transcript

[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky coming at you aligned with the universe and very happy coming off a fresh defense verdict in South Florida. Let’s go. Those don’t happen by accident. By the way, in this podcast, I’m eating breakfast at the same time. My green—the green apple, by the way, this whole red versus green apple thing. Red apples are terrible. I don’t know why you—no, the green, the Granny Smith green apple is a superior apple. Anybody tells you otherwise, dead wrong on that one. The green apple, and it’s got to be like sour, right? Throw some peanut butter on. My grandmother used to have these. She used to salt on the apple. She cut them into slices and then put salt on the apple. Try that. That’s very, very old school.

[01:27] Bill All right. Had to go on my little red apple rant talking with food in my mouth. I don’t care cuz number one, I got to get this podcast done. Number two, I’m starving. That was a long week. So, let’s kind of delve into the whole, um, well, a couple things today. I’m giving a speech in a couple weeks to a major corporation and we’re talking jury research cuz everybody’s got this screwed up. Nobody really understands the scientific method. And when you do things backwards or wrong for decades, it’s kind of hard to, you know, get out of that, right? So, it’s kind—it’s kind of like—it’s kind—jury research is the food pyramid is what it is. Okay. The food pyramid drilled in our brains. Your diet should be 70 to 80% carbohydrates. Yeah, right. [Laughter] Yeah, go try that and then jump on a scale after six months. Let me know how that goes for you. Okay.

[02:40] Bill And now after decades, physicians, experts, you know, yeah, this high protein thing is the real deal, right? Because how society’s changed, right? A lot more sedentary jobs. This food, this food pyramid thing is way off. There’s no science behind the food pyramid, right? So, like trying to get the mindset of people to flip that food pyramid upside down and get a more protein-based diet. Many, many struggle with this. Many, many, because they weren’t raised like that, right? And so, with jury research, you got the same thing. Mock trial, mock trial, mock trial, clopening versus clopening. No, no, no, no. Like the food pyramid, we got to flip that thing upside down. By the way, plaintiffs’ bar, they don’t do a lot of mock trials because they know what I know. Number one, they’re not really necessary. You can do the research without a full-blown mock trial. Number one.

[03:53] Bill But here—here’s the problem with the mock trial, right? So, two—you get two major problems that throw just this insurmountable amount of error into your results. Number one, if the mock trial is the first test you’re doing, now you know we’ve talked about this before. It’s like doing the MRI before the X-ray. Nobody does that, by the way. Any injury, even professional athletes, X-rays come first. They’re looking for fractures. They’re looking for hairline fractures. They’re looking for the basics. Then you’re going to go to your MRI or CT scan or whatever. Okay? And when you jump right to that mock trial, you’re going to invite and bring a ton, ton of error with you. And there’s two types of error. Type one error, type two error. False positives, false negatives. Very, very dangerous. Number one. Okay, completely preventable. Okay, this is why the focus group methodology is so powerful because focus groups are a deep dive.

[05:17] Bill You find your hidden vulnerabilities, juror comprehension problems. In other words, the focus group is the screening tool like the X-ray so that you find the basic fundamental problems at the jury level with your case. Once you get through that noise, you go, “Aha.” Now then, if you want to go do a mock trial, your MRI, now you’re set. Because when you do that mock trial, you’re not dragging all the error with you because you found it in the focus group. I have seen this so many times, unfortunately, because I’m going back to the green apple, by the way, cuz I parachute in a lot of cases. Excuse me. I parachute down a lot of cases and they’re like, “We’re going to send you—we did this mock trial. We’re ready. I’m going to send you the mock.” And they send me the mock trial video and the report. It’s usually a disaster and so much error. I don’t like error. I’m a scientist. Type one and type two error.

[06:40] Bill I see to—see to—to you folks in the—in the general population, nobody knows what type one and type two errors are. To a behavioral scientist or a medical scientist, that’ll scare the [ __ ] out of you. These are false negatives or false positives. What that means is you have error in your methodology and data collection and your results come back false negative. And what false negative means is your results come back and you’re like, “Hey, we got a great case. We’re going to win.” It’s a false negative. Not the result was negative. Meaning you didn’t find anything bad. You’re like, “Oh, hey, we’re good. We’re going to win. It’s a cakewalk.” Not good. Okay. False positive. Just as bad. You get your results and you’re like, “Oh my god, we’re going to get killed. All these jurors hate us. Everything’s terrible.” But it’s a false positive. Meaning there’s error in that data that’s showing up as a positive that’s really not there because you did the study wrong. Right?

[08:12] Bill These things give me headaches, folks. So, number one source of error in a mock trial is you do the mock trial as step one. You do the MRI before the X-ray and you miss all the fractures. You’re looking for soft tissue injuries, ACL tears, Achilles ruptures, but you—you got a—you got a hairline fracture in your femur, and you don’t know it. Why? Because you skip that test. Now, why does this happen? Because you don’t know. It’s the food pyramid. It’s the food pyramid. You got to flip that upside down. I mean, you know, in the last 10 years, like the high protein diet is kind of finally here. But, you know, like say 20 years ago, 2005, I remember this. 2005, you had, you know, the paleo diet, the keto, it started coming out. People like you—wait, wait, hold on. Eating bacon and eggs and steak three times. Like, are you—you’re—are you nuts? You’re crazy. You’re crazy. You’re going to have a heart attack and get killed.

[09:27] Bill And then all the data came back showing that those people had less heart attacks. And the ones following the food pyramid became obese, had diabetes, had high blood pressure. Jury researchers’ food pyramid, you gotta flip it upside down. So that’s the top cause of error. The second cause of error and why the mock trial—got be really, really careful with this. So even if you do the focus group, you do this the right way. You do your x-rays, you find the hairline fractures. Now you’re going into your mock, you can still screw this up. Now let me say something here. It’s going to rub some people the wrong way. Persuasion has a high impact on your data in a mock trial. And what this means now, the next part, the part I’m about to say, you’re—you already know this, but it happens to way too often. You must—and it’s not going to be perfect, but you got to be close. You need to have, if you’re doing mock trial, you better have two presenters that have equal persuasion skills, equal communication skills, and equal weaponry or your data is going to suck.

[11:00] Bill And what’s going to happen? False negative, false positive. Here we go again. Type one error, type two error. Got to be careful. I’ve again—I parachute on a lot of cases which by the way I hate. I—I—there’s no worse situation and attorneys if you’ve been stuck at that sucks because you’re just getting just, uh, dragged into a big mess, right? And I just—I review these mock trial videos and it’s like, you know, you get your fifth year, fourth year associate putting on the plaintiff’s case and then the named partner’s doing the defense. Oh, and you get three defense verdicts. Wow. Wow. We got a great case. No, you don’t. It’s a mis—you can’t—you can’t have a mismatch like that. Or the other way. Okay, if you want to get a false—that’s a—that’s a false negative. False positive is the named partner takes the plaintiff’s case and does a really, really good job and then the fourth-year associate does the defense and they crash and burn.

[12:20] Bill Okay, you have to have equal persuasion, equal persuasion skill, equal equal weaponry. Okay. Otherwise, false positives, false negatives, type one error, type two error. Okay. So, whoever’s playing these roles in these mocks, that decision cannot be taken lightly. So, I—I get a video of this mock trial and the defense attorney who’s going to try the case is role playing plaintiff’s. Okay? They come out and I mean they do this like case summary which is another mistake I’ll—because there’s a cognitive load issue with the clopening. I’ll end with that. She—she goes—she goes for like 45 to 50 minutes and just hammers away and she’s good. Boy, she’s good. You can tell. Then she recruited somebody from her firm to play the defense attorney to defend the case. He gets up and goes about 12 minutes and sits down. He didn’t quite do the My Cousin Vinny opening, but it was—it was—it was really close.

[13:45] Bill He gets—so she goes for like 45, 50 minutes just hammers away. He gets up and goes, “Yeah, this stance—I just don’t agree with that. None of this is making sense. No, no, no, no, no, no. We really disagree. We think the evidence is going to show otherwise, ladies and gentleman.” And just sits down, right? So, so after the two presentations, this—the score is 35 to nothing. And then the next mistake was they played an hour to an hour and 15 minutes of each witness. Jurors are falling asleep. Jurors are taking, you know, like jurors have notepads and stuff to take notes. Like they’re—there are jurors watching video after video, hour, hour and 15 minutes. They all want to stab themselves with their—with their pens in the side of the head to—to get out of there. Horrible mistake. You go 30 minutes on a video, but anything after that. Now, if you have a long video, okay, you need to divide it up into sections that are digestible, but you’re not—you don’t just go sit there running 75 minutes of a deposition video.

[15:02] Bill No one’s going to pay attention. Everybody’s gonna fall asleep and you may have some suicidal ideation amongst—amongst your group. Okay. Avoid these mistakes. Now, the counter to the—well, they got to hear all the testimony. It was an 8-hour deposition. No, they don’t. You—you think jurors listen to all the testimony at trial? They make very quick decisions on witness credibility. Very, very quick decisions. You play 10, 15 minutes of a dep, you’re good. You fill in the blanks in your—in your presentation. All right. So then—so back to this video. So, two sides. Then they play all these videos. Then they do these like closings which pretty much mimic the opening. And then they cut off these people to go deliberate. They had 36 people into three groups. Way too much. That means you got three groups of 12. Okay? Only five or six people are going to talk. Okay? Your groups need to be 8 to 10 max because then everybody talks. Remember, you only—you only have an hour or two or whatever for deliberations at the end of the day. Can’t have 12 people in there. Okay.

[16:32] Bill Then another mistake. They give them a verdict form that has 17 questions on it and they have an hour and 10 minutes to deliberate. What are you doing? What are you doing? So, the project ends. None of the groups have even finished the verdict form. Most of the jurors don’t even know who the plaintiff is versus the defendant. That’s how confused they are. They’re getting the witnesses mixed up. Total shitshow. And probably for about $90,000. Come on, folks. Stop following the food pyramid. It’s a horrible way to do things. So, let’s end on the clopening. I’ve done this before. Major rant. The clopening—meaning you put on your summary of the case, right? Plaintiff goes first, then defense. And you go like somewhere between 45 minutes and an hour and a half. And essentially, you put on everything. Well, number one, that’s not how a trial works. They hear openings, they get a break. Witness, witness, break, witness, witness, break, blah, blah. Right? Closing, closing, break.

[17:56] Bill What the cognitive load—meaning the weight of the information on the juror brain—it’s the cognitive load—cannot handle an hour, an hour 15 minutes, even 45 minutes is pushing it of the whole case. Oh, and then you’re—then you’re going to embed—This is another good—this is another just terrible idea is like you put on this one hour and a half clopening and you embed witness clips within the presentation. It’s neurologically impossible for jurors to comprehend, follow along and—and digest that information. And then they get into the deliberations. They’re all over the place. They’re confused and you wonder why. Okay. Set your presentations up like a trial. Opening. Opening. Show some witnesses. Closing. Closing. Decrease cognitive load. Increase juror comprehension.

[19:13] Bill Now, here’s the problem with all this, and I will quote my friend who I’m doing a mock trial with next week. Tony Batista from New York City, who has been on the show, did a two-part series with him. It’s his quote. I can’t take credit for it—here’s his quote: “Nobody listens.” Nobody—nobody listens. Cuz when you’ve been exposed to this food pyramid so long, you’re like, “Well, I grew up eating fruit and cereal. I grew up eating cornflakes. I grew up, you know, eating a—a banana with a muffin.” Nobody listens. All right. There’s a better thing—there’s a better way to do this stuff, but you got to listen. And many attorneys, you know who you are, you’ve been in the industry for a couple decades or more, and you’ve—you’ve kind of been following the food pyramid the whole time, and you’re comfortable with the food pyramid. Um, you got—you got to kind of open up—open up your mindset here. Take a step back. Say, “Is that really—is that really, you know, the best way to do things? Is that really the best way to do things? Or is there a better, better way to do things?”

[20:40] Bill And anybody that tells you what to do, and this—this is, you know, I’ll take the Pepsi—Pepsi challenge on this all day. Anybody that tells you what to do with jury research or most importantly too with a witness, they better have some scientific training in psychology and some data to back it up. There’s another rant. I am so tired of this. You’re getting advice from people that—that have never studied psychology. What do you think we’re doing? It’s jury psychology. It’s jury behavior. It’s jury decision-making. That’s all psychology. Do this. Do that. Like, where is this coming from? So, attorneys, when you’re—and listen, I know you can’t hire Courtroom Sciences on every case. And I know some of your clients just force you to use other people. It is what it is. What I’m saying is demand—demand a foundational scientific rationale for why things are being done the way they’re done. This happens in witness training all the time when I instruct a witness to say, “Yes, period.” Yes, that’s true. Period. Not, “Yeah, but—yeah, but—yeah, but—yeah, but—yeah, but.”

[22:13] Bill And the defense attorney says, “Well, wh—why—why the period? Like, why do we want to use the period?” And I scientifically break it down neuropsychologically with the witness brain, the plaintiff attorney brain, and the juror brain. And they go, “Oh my, oh wow. Oh, okay. Oh, now I get it. Now I get it.” So, attorneys, be—be demanding. Be demanding. Ask important questions, and you’re going to figure out who knows what they’re talking about. Okay, for—you go out in society right now and somebody’s on the street corner with the sign going, “The food pyramid is great. Follow the food pyramid. It’s the healthiest way to eat.” You’d look at that person right now and go, “What in the world is wrong with you?” Right? Be demanding. When you get recommendations for jury research or witnesses, ask why. Like, where is this coming from? What foundational knowledge? What training? What—what data do you have that shows why I should be doing this?

[23:25] Bill And I think that—I—I think that’ll be really important. Um, all right. That’s—I have—I have like two really more important things I want to tell. I’m going to save that for a different episode. I know you’re on the edge of your seat, but I’m gonna save that for a different episode. Couple more things about voir dire. Okay, because listen, we’re busy. We can’t help pick every juror, you know, you guys have got to learn some new skills. You guys got to up your voir dire game. And I have termed this our new techniques: disruptive voir dire. Oh, it’s very disruptive. You’ll hear some of these questions and follow-ups and the techniques and you’ll be like, “Oh, wow. I never thought of that.” Just used them on this South Florida defense verdict. Plaintiff’s attorney started flipping out, objecting, and judge is like, “What the hell is wrong with you?”

[24:34] Bill Okay, got new powerful stuff out there. But it’s all scientifically based. Specifically, neuroscientifically, right? This is all brain. This is all brain stuff. All brain stuff. Okay. Uh, that’s going to end this episode, folks. Do not follow the food pyramid. Oh my gosh. And if you are going to have, uh, any apples in your house, make sure it’s the Granny Smith green ones. Green, green ones. Uh, you know, throw a little peanut butter on there or salt them down a little bit like my grandmother used to. I’m telling you, you’re—you’re—you’re not going to be sorry with the green apples. Um, all right, everybody. Have a great day. Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky. I’m out.