Bill Kanasky, Jr., Ph.D. discusses a recurring problem in wrongful death cases: jurors’ tendency to mistakenly believe their job is to assign a monetary value to a life. Bill explains how this cognitive shortcut often leads to inflated damage awards because jurors default to emotional reasoning rather than following the legal instructions.
To prevent this, Bill emphasizes that the issue must be addressed proactively during voir dire. He outlines a process that begins with exposing the problem – acknowledging that jurors will naturally think, “How do we put a value on a life?” – and then clearly explaining that the law does not ask them to do that. Instead, jurors are asked to compensate surviving family members for measurable economic and emotional losses.
Bill walks through a step-by-step strategy for correcting this misconception: expose and normalize the cognitive shortcut, redefine the juror’s task in line with the law, and secure public, verbal pre-commitments from jurors to follow the court’s instructions. He also recommends going a step further by asking jurors to commit to keeping one another on track during deliberations.
Bill concludes by noting that this structured approach not only prevents confusion and emotional decision-making by jurors but also strengthens the defense’s position by grounding jurors in rational, law-based reasoning right from the start.
Full Episode Transcript
[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast. Dr. Bill Kanasky coming at you. I’m… It’s a rough morning, guys. I got to tell you. Had one of those like deep sleep nights. A lot of REM, a lot of dreams. Wake up. I’m on coffee number two. Like, oh my god. Gosh. Still trying to wake up, folks.
[0:46] Bill So, I’m a little little hazy here on the podcast this morning, but I hope everybody’s doing well. I got to tell you a story. So, I’m I’m out to breakfast with my son. Now, my son is 24 years old. He goes to community college. Um he’s figured… Now, if you’ve been, you know, listening to the podcast, I share with you, you know, personal things and, you know, raising kids is tough. And then they get to the college age, that’s tough, too. And let’s just say he’s taken some time to kind of get where he’s at. Taken some time to figure it out. Uh I was a little bit of a slow starter myself in that regard. Um but he’s in community college. I’m really proud of him. And we go to breakfast and he orders chicken and waffles.
Now personally that’s just not my thing. I’ve never had… I just I’m not a chicken and waffles guy. Okay. But he’s like, “Hey, chicken and waffles. This looks fantastic.” So, he orders the chicken and waffles and he just devours it. And so I look at him. I said, “Hey, son. You know, how how were your chicken and waffles?” And he looks right at me and he goes, “They were mid.” Now, keep in mind this is a Gen Z. Yeah, he’s he’s jury eligible. Okay, he’s jury eligible. So, I said, he goes, “It’s mid.” And I looked at him, I’m like, “What?” He goes, “Mid.”
What? What in the world does mid… what are you what are you talking about? And he rolls his eyes and goes, “That means it’s okay.” What? I go explain this to me like what is this some like Gen Z slang? He’s like yeah that’s what everybody says. So, if something’s okay it’s mid. He goes… Yeah. What is mid what does that what does it stand for? What? Middle… middle of the road. He’s like, “Yeah, mid mid.” Okay. All right.
[03:02] Bill By the way, my idea for my idea for an upcoming podcast is I’m going to do a Gen Z focus group with him and his friends so we can all learn about Gen Z a little bit more. I think it’s going to be fascinating and hilarious at the same time. It’s probably going to scare the [ __ ] out of all of us. But him and his friends that listen, they’re in their mid-20s. They’re jury eligible. I’m going to have one from Atlanta, I think, one from Chicago. And him and we’re going to do like a focus group with them. Do a little voir dire… guy from te… during my speech yesterday. Guy from Texas jokingly said, “It’s voir dire down here in Texas. It’s voir dire. Don’t call it no voir dire boy.” It’s like, okay. Geez. Sorry. He was joking though. He was joking.
So, yeah. So, I’m gonna set up this Gen Z focus group and just ask them voir dire questions and I just want you to listen what comes out of their mouth. It’s going to scare you to death because they’re jur… they’re jury eligible. I think that’s going to be pretty cool. Now, problem is like most focus groups, they’re going to expect to be compensated for their time. I know these kids, they they grew up with they grew up in my house playing video games. I I’m going to have to throw them my 50 spot or something. I don’t know.
[04:31] Bill Okay, so let’s get this show on the road. What are we doing here today? What we are doing is the first thing I’m doing is I’m slamming this coffee. So, I’m still in kind of La La Land. I’ll tell you why the… I did uh it was leg day. I… It was a just a brutal brutal leg day. Yeah, that really… You’re going to sleep after leg day. Boy, I’m sore too. Uh today we need to talk about the issue which comes up a lot in um our mock trials.
So, let’s kind of break this down. So the issue is you have a death case and you do a mock trial, you do a focus group. Um, inevitably what happens every single time is multiple jurors will struggle on damages on a death case and the quote that comes up every single time is, “God, like how do we put a value on a life?” Verbatim. “How do we like how do we how do we put money value on a life? God, this is this is so hard. This is so hard. This is so hard.”
Now, you know as well as I do, okay, the fact that they’re asking that question is the problem. This happens in multiple cases across the country. So, you… that’s not what the verdict form says. “Hey, what was the value of Mr. Jones’ life before he got run over by a truck?” That’s that’s not the that’s not the question, right? The question is going to be very different about what the typically the family members, the plaintiffs are losing in the form of financial or emotional support and things like that.
[06:19] Bill All right. So, how do we prevent? Because this is this is one of the ways where damages go high because jurors will throw, you know, they’ll throw some crazy number go, “Well, it’s a how am I supposed to value a life?” And they tend to go higher, right? So, how do we reprogram jurors’ brains to do the right thing? Well, I got my I got my notes here. I got my notes here. Okay. So, like everything else, like everything else, but nobody listens. Remember, nobody listens. I just got to keep saying until somebody listens. It all starts in voir dire. That’s where it starts.
Now, you have to remember what’s the rule. What’s the rule of voir dire disrupt? Remember we call it disruptive. We have to really put a trademark on that. Disruptive voir dire. What’s the rule? What’s our number one rule in disruptive voir dire? The rule is if you want to prevent a problem, expose the problem. Right? Okay. So, how are we going to do it here? So, we have to expose what’s going on and you have to essentially in jury selection get this topic out and you got to correct the cognitive error.
[07:50] Bill So, you have to say something like, “Okay, ladies and gentlemen, as you’ve heard um you know, this is a tragic case and and someone was killed, their family or the plaintiffs.” And um as jurors, you may be thinking, you know, “Boy, what’s this person’s life worth? It’s a civil case, not criminal. God, what’s his life worth?” And you know, and me, I I’ve heard jurors, you ask that question, you know, “God, what’s this per…” and jurors oftentimes struggle in voir dire, ladies, I’m sorry, struggle in deliberations, ladies and gentlemen.
Jurors sometimes struggle because the first question that pops in your mind is, “Well, yeah, this person’s gone, and our job as jurors is to like we have to like financially replace this person. We have to put a value on a life. And boy that’s so difficult.” Okay, and say, “Well ladies and gentlemen that is difficult. In fact, that’s an impossible task. You can’t put a monetary value on a life. And guess what? That’s not what the law and the court’s going to ask you to do anyway.”
So, let’s clear something up. So, does everybody understand? And you raise your hands. Yeah. “Do you understand that the law is going to ask you to do something actually very different? Okay, it’s going to ask you to compensate based on the surviving family and what they lose financially, emotionally, okay? And these are measurable things. The law is not going to ask you how much the decedent’s life was worth. Now raise your hand if you if you understand that concept, right?”
And what’s going to happen is many hands are going to go up. Some aren’t going to go up because people are going to be confused. And here’s the point. That’s the whole point of this. They are confused. So, you got to spend some time here.
[09:49] Bill Now, if you’re in federal court, it’s a completely different ballgame. I got a federal court story for you because I got one coming up. Oh my god. We got we got 20 minutes for voir dire. I got three questions. But let’s assume state court where you have some time. You have got to dig deep on this. Okay. And get the… and the question is as long as you’re pretty you’re pretty much just indoctrinating them and programming them to understand this. And then the only the only question you’re asking is, “Do do you raise your hand if you understand what I’m saying? Okay. Now some of you didn’t raise your hand. Are are you confused? Juror number five. You didn’t are… juror number five. You didn’t raise your hand. Do you understand the difference?”
And you’re going to hammer away over and over. So, finding people that don’t raise their hands, that’s actually a good thing because psychologically what you’re doing is you’re pounding this theme over and over and over that the juror’s jobs is not to put a monetary value on life. Okay? So that’s where you start. Okay? Here’s where your brain wants to go. Remember, if you want to prevent a problem, expose the problem. Here’s where your brain wants to go. But here’s actually what the law is going to ask you to do. Now, does everybody understand the difference between these two things because they’re very, very different. And you get this discussion going and you clear everything up. If there’s questions, great. And you hammer this over and over. Like, if you do this, it’s impossible them for them to screw this up in deliberations.
[11:27] Bill If you don’t do it, they will absolutely screw this up in deliberations. And you’ll have multiple… we see it in our mock trials. Multiple jurors. “God there. Yeah. Putting a value on the life. I mean gosh. That’s a hard task. It’s never enough, right?” We don’t want that in deliberations. So, we have to… excuse me. We have to expose this problem in voir dire and get a discussion going about it and make sure everybody’s on the same page. All right, everybody’s on the same page.
Now, many are uncomfortable with this, okay? But that’s the whole purpose of disruptive voir dire. The the reason why we call it disrupt… well there’s two reasons why I call it disruptive. Number one, it disrupts the whole process to what typically happens. So just philosophically it’s it’s disruptive. But what you’re really doing is you’re disrupting the juror’s cognitive patterns that are pre-existing. That’s what you’re disrupting. And then when you get good at this, then you can redefine them.
[12:49] Bill So you disrupt by exposing the problem. “Hey, here’s where your head’s going to go. I know it’s going to go there because you’re human. But here’s where the law and the court’s going to point you. So, let’s talk about this very important difference and make sure you understand it.” That has to be done in voir dire, folks. If you skip that, they’re going to the jurors are going to bring in those pre-existing thoughts and beliefs into the deliberation room. Okay? So, we want to expose it and talk about it and get everybody on the same page.
Okay? So, what we would call this in psychology, what I would call it is jurors really like to take what I would call cognitive shortcuts. And when it comes to damages, okay? And particularly like a wrongful death case, jurors make these cognitive shortcuts, they go from someone died to, okay, I’m being asked to give money. So, they connect those two dots and think, well, the money is to value the life that was lost. That by definition is a cognitive shortcut.
[14:09] Bill So what do you do? Expose the cognitive shortcut. Now here’s the key to everything. Voir dire is hard, guys. Like the setup to these like it’s all about the setup, right? You’ve got to tell them because you don’t want to be cross-examining these people. You’ve got to tell them, hey, essentially what you’re going to say, you’re going to you’re not going to use the phrase cognitive shortcut, okay? But you’re going to describe it. You’re essentially going to say in so many words, cognitive shortcuts are normal. We all do it. You see A and your mind goes right to B. That that’s just kind of how the brain works, right?
This can be a positive discussion with jurors. And you go, “Now in this case like those shortcuts. Okay, that those can be bad because that shortcut’s actually going to go against what the court’s asking you to do. So, let’s be crystal clear on what the court’s asking you to do versus what your brain may be telling you to do because these are two very different things. And let me lay it out for you.” You lay it out and you go, “Now raise your hand if you if you understand the difference between these two things. Okay, very very important.”
[15:24] Bill Once that don’t raise their hand, you pick on them. You call them. “Yeah. Why? Why are do you not get it? Do I need to explain it more?” You’ve got to hammer and hammer and hammer and hammer because then you get when you get to deliberations, you’re going to prevent the cognitive shortcut. This is going to stick. Trust me. You just got to trust me on this. It’s going to stick. Okay? Because you’re almost having the the deliberation on this issue in voir dire. That’s the trick.
Okay? You correct all these cognitive shortcuts in voir dire. Then they get to deliberations. The statistical odds of that happening are very, very low. Right now, let’s really pile on our psychological weaponry here. Once you do this, okay, once you do this, now let’s hammer away with pre-commitment.
[16:19] Bill Okay, “Now that I’ve got all of your agreements that you understand what your job is and you understand the difference between kind of your brain shortcut and what the law… Okay, it seems like we’re all on the same page now. I need you” and remember you gotta do this publicly, “I need you to be able to commit to following what the law says on damages and what the court instructs you. Now, if you have time, I go one… but juror number one, can will you please raise your hand and can you verbally commit to staying on track with this based on what we just discussed?” And juror number one go, “Yes, I commit.”
Remember pre-commitment is a very very public commitment is a very very powerful psychological variable. We’ve talked about it. We’ve talked about this. I do speeches on this. I write papers on this to get a… so much research behind pre-commitment. Let’s talk about this again. In case you’re just jumping in on this episode, you haven’t listened. You could be a new listener by the way. We got a lot of new new listeners. Fantastic. Welcome. Welcome to the Litigation Psychology Podcast.
[17:34] Bill Let’s talk about pre-commitment. Massive psychological power here. Okay. So, what the research says when it comes to exercise adherence, sticking to a diet, stopping smoking, saving money, decreasing spending, any type of like big time human behavior like that. Ton of research on this. When people commit to the plan publicly in a group setting… so for example, you have an exercise group and and they meet every week, right? And at the start of this exercise group, say it’s going to be an 8-week program, the instructor goes one by one and gets people’s commitment. “Yes, I’m I’m finishing this exercise program. Yes, I’m going to be adherent to it. Yes, I’m going to do the three days a week.” Okay.
And then you have a different group where that part’s skipped. Okay. The group, the people that raise their hand and publicly announce to their peers, “Yes, I am in. I am in on this.” That group like blows the other group away every single time. Every single time. Dietary behavior sticking to, “Hey, we’re going to start the Paleo diet.” You got two groups. The instructor, the educator in both groups shares the diet, passes everything out, but the one instructor in group A says, “Okay, now I want your commitment. Now, you know, participant number one, are you in?” Participant number one’s like, “Yes.” Right. But the other group, they don’t do that. They just do the education. Group one blows group two, group two away on adherence.
[19:36] Bill So what I’m trying to say here is when you get people to publicly so it’s got to be like a raise of a hand and a yes I’m in that’s what you want to do in voir dire. An incredible amount of mental psychological influence using this tactic and guess what? The ones that refuse to say yeah right well well guess what? That’s a real problem. Could be a cause challenge, particularly if it’s on the law. “Your honor, juror number five will not raise his hand and commit to following the law. I think that’s a cause challenge, right?” But regardless, even if you lost that, that’s obviously going to be a peremptory strike.
[20:31] Bill Okay? So, that’s what you want to do on this topic. Get the pre-commitment to not making the cognitive shortcut and to sticking to exactly what they’re supposed to do. Now, here’s where the mistake gets made. You just go to the group and you’re like, “Okay, hey, the law says this. You may want to do this. Everybody okay with following the law?” Okay? And like you just get a raise of hands. Next question. That’s not enough for pre-commitment.
Pre-commitment is not only you got to get that hand raised. They ha… they must verbally commit. And you can do it quick. It’s going to take some time, but if you’re in state court, easily do this. Juror number one, you commit to this. Okay. Do I get verbal? Yeah. Okay, good. That’s all it takes. Boom. Boom. Boom. Boom. Boom. Boom. Boom. And you get everybody, right? And you’re going to have some people that are kind of uh hand, you know, alligator hand, alligator arm. “Ehh, I think I can.” Whoa. That’s a that’s a big… you just identified a big red flag. A big red flag.
[21:48] Bill All right. So, we got to get all those commitments and you’re going to see the ones that are going to struggle. Okay. So, what you’re gonna… you’re going to program the entire venire’s brain to to to do what you want to do by doing this. But the mistake is to say, “Does everybody have, you know, does everybody agree? Raise your hand. Thank you.” You move on. Or you do the opposite. “Does anybody have a problem with following the law here? Oh, no hands. Okay, next question.” Doesn’t work, folks. Now you’re taking the cognitive shortcut.
Can’t do shortcuts. So, if you really want the power pre-commitment on this damages issue, you’ve got to set it up the right way, you’ve got to set it up the right way. Meaning, expose the problem. That’s the first thing you do. Number one, expose the problem to prevent the problem. Number two, normalize the problem. It’s okay. We all do this. We’re human. This is what this is kind of where our brains go. You normalize the problem. Number three, you redefine what’s going on, right? You make this, okay, well, here’s what the law is going to say in the court versus your brain and you’re here to follow the law in the court and then you hit him with the the pre-commitment question. It’s got to be public. It’s got to be verbal.
[23:11] Bill Right? Now, if you really want to take it to the next level, the final step would be the pre-commitment. I love this question. I came up with this long ago. Nobody uses it enough because nobody listens. But the final step here to really really hammer this would be getting the pre-commitment to keeping fellow jurors in line. Okay.
Now, how that works is you go, “Okay, now let’s assume you’re in deliberations, ladies and gentlemen, and one of the jurors completely violates everything we just talked about. And they start saying, ‘Oh god, we got a we’ve got to award crazy money because I mean a you can’t like there is no value you could put on a life and blah.’ And they start making this error that we just talked about five minutes ago. How are you going to handle that? Are you going to be able to keep them in line?” And then get that discussion going.
[24:30] Bill Okay. So, where you’d really want to… like if you have an admitted liability case in particular, it’s a damages only case, you put the time into this. You put the time into this. All right? Because not only you going to get the pre-commitment, then you’re going to get a commitment to the jurors keeping each other accountable.
I’ve seen this done and boy is it is it’s so effective. We see it in a mock trial. Some some mock juror will start going nuts and then three other jurors would be like, “No, no, we can’t do that. Remember, we can’t we can’t do that. No, you’re wrong. We can’t do that. Remember what he said before? That’s that’s not our job. We can’t do that.” And the other jurors start to reel him in. It’s a beautiful thing to see psychology in action.
[25:32] Bill Now gosh, sorry. It’s the fall allergies, man. So, here’s the here’s the problem for you, defense attorney. This is a multiple-step process in which you have… you can’t skip any steps. You have to be very patient and you got to know what you’re doing. Okay, this is why it’s called disruptive voir dire. These are powerful psychological principles at your disposal, but you’re not psychologists.
So, you’re going to need a little help with this. Could be listening to the podcast. Maybe that’s all you need. Or you have to pick up the phone and call… give us a call. Or maybe we need to be retained on your case and we will help you. We will design, we’ll blueprint the whole thing out for you. This stuff works.
Now, funny enough, an attorney just did this recently and he he called me afterwards and they won the case. He said plaintiff’s counsel was flipping out objecting and the judge was like, “Well, what’s what’s the basis of your objection?” And like the plaintiff attorney is like blah blah blah blah blah because the plaintiff attorney figured out what the defense attorney was doing and realizes the power of these tactics. And the great news is that if there’s an objection, you can look right at the judge and say, “Your honor, I’m I’m just getting commitment that the jurors follow your instructions.” How is that objectionable? Just getting their commitment to to follow the law and what the court says. Yeah, pretty uh you’re you’re in pretty good shape there unless you have a really nutty judge.
[27:26] Bill Okay, so doing this takes time. It takes the right sequence of steps. You cannot rush through this you do… now depending on your jury selection setup. Okay. I’m telling you, if you have a damages only case, you abs… like it’s legal malpractice not to do this and you’re like, “God, I gotta go get I got to get commitment from 50 people.” Yeah. Yeah.
Now, maybe they only put 12 in the box or 14 in the box and you’re just going to question. Well, then it’s easier. But you’re you’re you’re goddamn right. You better get the commitment from them. Otherwise, this will happen in deliberations. We see it all the time when this is skipped. We see in deliberations all the time and jurors start making that cognitive shortcut and they start attaching dollar signs to, you know, replace a life which is not what they’re being asked to do. That’s not the question. And you tell that question will not be on the verdict form. And there’s a reason for that, right? There’s a reason for that.
[28:38] Bill Now, if you want to take a deeper dive, you can also point out differences in like for example, you know, what if we were here on a case where a 5-year-old was killed versus a 90-year-old? Are there is is the five-year-old’s life worth more or less than the 90-year-old? And people really start boy, they really start to struggle. And that’s what you want because a life is a life is a life, right?
And again, you say a court would never ask you to make that valuation difference. They’re going to ask you to value what’s been lost from the plaintiffs economically, non-economically. Okay. Things things that are measurable. You’re going to hear testimony. All right. And get their brains programmed in jury selection on what’s about to come. And then that will keep the jurors on track to answer the right questions to stay adherent to, you know, what what the court wants and what the law says. And it prevents jurors from, you know, going off the rails on this issue.
[30:07] Bill Now, I can assure you if you don’t touch on these topics, it will happen. It will happen. Let’s see. Is there anything else I want to tell you? No, I think that’s it. I think that’s I think that’s I think that’s it for today. Um because that that’s a very important topic and even if you have a case where you’re fighting on liability, I think I think you can uh absolutely um bring that up, you know, and obviously you want to use the precursor of now you may not not even get to those issues if you side with the defense, but hey, you you may you may get to this question and then start that discussion. Okay, start that start start that discussion to talk about damages.
Now again, most times damages are discussed in voir dire and I’m not saying this is wrong, but it’s more of the like, “What do you think? Yeah. What do you think about these nuclear verdicts, right? This Starbucks just got hit for $75 million because dude spilled a couple a cup of tea on his crotch. Everybody remember that? Yeah. Do you think that’s crazy? You think that’s…” Yeah, you can ask those questions, okay, on what jurors think about damages, right?
[31:29] Bill However, those questions really aren’t addressing the mental process on how they get there. Okay. So, the reason I wanted to talk to you about this today is on death cases in in particular, this this comes up all the time, this kind of cognitive shortcut uh from jurors. So, you got to figure out a way to get around that. I just gave you the formula. You can kind of use your own words, but I kind of just walked you through the steps of how you need to do that.
So, if you have a case, you need help with that, reach out. We’re happy to help you because there’s some other topics that you’re going to have to cover as well. But, I thought that’d be a pretty cool topic for today. If I talk to my son and “Hey, how was this podcast?” “Oh, it was mid.” It was mid. I don’t want a mid podcast, ladies and gentlemen. No, no, no, no. We don’t we don’t want a mid uh podcast.
[32:32] Bill All right. Uh everybody have a wonderful week. Uh send in your… We’re going to do another uh viewer listener uh mail session coming up. Dr. Wood and I that’s going to be coming up. So, send in your questions. Again, if you’re an avid listener and and I don’t know you, reach out. bkanasky@courtroomsciences.com. Shoot me a message or set a call… I’d love to I’d love to meet you all, talk about the types of cases you handle, stuff like that. Um, podcast is going well, and we really like to interact uh with our listeners and uh and viewers. That’s a really that’s a really good thing. So, all right everybody have a great week. Litigation Psychology Podcast brought to you by Courtroom Sciences. This is Dr. Bill Kanasky. I will see you next time.
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