Episode #289 – Rewiring Juror Thinking with Disruptive Voir Dire

Bill Kanasky, Jr., Ph.D. expands on the “disruptive voir dire” approach, focusing on how to neutralize juror confirmation bias, which is one of the most dangerous psychological forces in the courtroom, and in life. Bill explains why all humans are hardwired to make rapid, belief-driven judgments and how those cognitive shortcuts can lock jurors into the plaintiff’s narrative before the defense even begins its case.

He outlines a structured voir dire method that exposes confirmation bias directly. Bill emphasizes the importance of normalizing confirmation bias through the sharing of personal examples and guiding jurors to reflect on times when they changed their minds after learning more. By forcing jurors to engage cognitively rather than reactively, attorneys can dramatically reduce the likelihood of premature, biased conclusions. Bill closes with specific question structures and strategic sequencing that reprogram juror thinking and prevent snap judgments during trial.

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 Monday morning. Hopefully everybody had a great weekend. Maybe you cashed in on a couple of these uh college football upsets. Upset city, baby. That was my very weak Dick Vitale impression. Um yeah, hope everybody had a good weekend. Got a big big week coming up. I know I have a big week coming up, but I want to jump on the podcast to talk a little bit more. We like I have to keep jumping into things as things develop because you know things change really fast and um if you recall we I did a four-part disrupt. So that’s the new term here. It’s disruptive voir dire. This guy in Texas called me. He’s like it’s voir dire. Get out of here with this voir dire stuff. It’s vire boy. He actually said that during a during a meeting, “It’s voir dire.” Tomato tomato, come on folks. But um this is really complicated stuff. So we did the four-part disruptive voir dire series um that got incredible uh feedback uh from the audience. And um I just uh this morning um actually really last night um Dr. Wood and I uh finished our paper on this. So, this will be submitted. I’m I’m thinking this is going to be published in like January, February edition of CLM magazine.

[02:05] Bill Now, why why do we why do we publish in CLM magazine but we don’t do any presentations there or attend any of their conferences? Pretty interesting, right? Uh it’s kind of weird. So, let me walk you through this. Number one, CLM magazine does a really, really good job. Um, their articles just physically look fantastic. Um, they look really, really good. Um, they have a very wide network of attorneys and, uh, corporate and insurance professionals and, uh, I’ve, excuse me, I got a really good relationship with them. Um, I’ve been writing for them, um, for a couple years now. Published several articles. Um, all that’s going going really really well. Now, that’s CLM magazine. The the problem with the CLM conferences is they follow the what what I what was called the pay-to-play model of conferences. They called me one day. They’re like, “Hey, you got really good stuff.” I’m like, “Well, thank you very much.” They’re like, “We’d love for you to speak at our meeting.” I said, “Okay.” And they went, “How does $8,000 sound?” I went, “8, well, you know, I’d prefer 10, but you know, eight, I think I could work with you with eight.” And they went, “Oh, no, no, no, no, no. You’re gonna pay us eight to come speak.” I’m paying you eight? I don’t think so.

[03:59] Bill So, my response to that was go bleep yourself. Uh yeah, we I don’t do that. Sorry. It’s the other way around. Um and they but that’s their system. Uh DRI has mostly moved to the system too which is why we’re not playing in the sandbox together. So, what we did instead of doing all these those types of conferences I don’t do that stuff anymore. I did that stuff for 15, 16, 17 years. Uh, all the speeches I give, I tend to go right to the corporation or the insurance company or the law firm. Why do I need this middleman? Why do I need CLM, DRI in in the middle here screwing things up charging me $8,000 to speak? Are you kidding me? But if you go to a conference and the the speaker is paying the conference entity to speak. How do you think that speech is going to be? You think that’s going to be a good speech? You think that’s going to be worth your while? No. No. It’s going to suck. And that’s all the feedback I get from those conferences. So, no, I don’t need we don’t don’t do those conferences. I like seminars that are very industry specific that have serious people involved.

[05:34] Bill And so going directly to the corporation and their legal department, going directly to insurance company, their claims people, and then this is this has been big the last two years. This has been big going right to serious defense firms. Done a number of seminars for defense firms the last two years and they all called I didn’t call one of them not zero% they called me and said hey enough is enough I want my attorneys, the managing partner calls me, I want my attorneys to be armed with the best weaponry and we want to we we want to work with you and we want to learn how to use you so we can combine forces I said let’s go so this law firm recently good law firm. Um, they signed up for eight sessions. It’s like we do two sessions a month for like an hour and 90 minutes. And we’ve already done two of the eight. And they had 75 to 80 attorneys on the Zoom while I’m lecturing. Get some interaction at the end.

[06:57] Bill So, a couple things. If you if you’re a law, you’re you’re a attorney and you want to train and and then some attorneys call me. They’re like, “Can you like can you train me one-on-one?” I’m like, “No, I no I I can’t do that. I don’t have time for that. Maybe in my future life, you know, semi-retirement, I can start doing that.” But if you’re if you’re a law firm and you want training, okay, give me a call. Give me a call. No, it’s not free. I may do a talk for your firm for free, right? But if you want actual tra—like the nuts and bolts of this stuff, that’s going to take some time and it’s going to take a lot of effort. But that’s what I’m doing now. So, I got several law firms that I’ve signed up and we’re doing a lot of and now I’m working with those law firms and uh they have the edge. They have the edge. I’m a big proponent of training. The problem is a lot of the training out there kind of sucks. It kind of sucks. I I’ve been getting emails from younger attorneys that say your podcast and your articles like are 100 times better than any seminar I’ve been to, so I just keep coming to you. I’m like okay good happy to do that.

[08:22] Bill But today I want to dive into this paper a little bit um on this disruptive voir dire. Now, again, go dig up the four-part series I did about two and a half, three months ago, probably late summer. That’s what I’m thinking. Four-part series where I kind of walk you through um all these things. And it’s a four-part series because it’s it’s hard to teach this stuff, you know, like when I talk about opening statements, it’s fun and it’s easy to teach that stuff. But man, voir dire this is like dark deep psychology. It’s it’s it’s really complicated. It’s it’s really hard. But we just finished this paper uh be looking for it early 2026. But I wanted to read you a little bit uh from this paper because one of the key issues here with this paper and this is something I’ve already written one two three I’ve already written three papers on this topic and the reason and now this is going to be number well this is going to be a portion of number four um is the whole concept of confirmation bias. It’s the number one most dangerous, most powerful psychological concept out there in your personal life and your professional life. Okay? And we’ve talked about this on how one of the main victims of confirmation bias is you, the attorney, right? And that’s why you want to do focus groups, so you can actually see your case objectively and you’re not falling into cognitive traps and cognitive shortcuts because that’s what that’s where a lot of mistakes get made. You look at your case, they’re like, “This is there’s nothing here.” And then two years later, you’re cha-ching, paying out, right? Plaintiff’s Bar knows this. Oh, they know. They know it’s dangerous, right?

[10:32] Bill And so, and clients, insurance claims people, in-house legal team. I mean, it’s really really again, it’s it’s that’s that’s why you can’t be you can’t be the judge at a beauty pageant where your daughter is one of the you can’t do it. You can’t see it clearly, right? So confirmation bias really has this really negative assessment on your case assessment. But let’s talk about jurors. Okay. Because this affects everybody. Why? Evolution. Well, evolutionary psychology lecture today. Okay. Why is this? Why is confirmation bias the most powerful the most dangerous psychological concept? It affects all of us at every moment of every single day. Plaintiff attorney, defense attorney, claims manager, homemakers, bankers, construction workers, all of us. Okay. So there, so let’s kind of talk about how this started. Let’s go back to cave people, right?

[11:50] Bill What’s the survival benefit of confirmation bias thousands and thousands and thousands and thousands of years ago? Well, let’s back up. What is confirmation bias? Confirmation bias is making cognitive shortcuts that align with your belief system, your pre-existing belief system. Right? So, if we put ourselves in the shoes of cave people, there’s a major and positive survival benefit to confirmation bias, right? You’re out there gathering, right? You’re gathering, right? Hunters, gatherers, right? And you know, you’re ca—you’re out there, you’re gathering. Maybe you’re picking some fruit for your family to take back to the cave. Fruit’s important. You’re picking fruit and then you hear something in the bushes rustling around. Well, the cognitive shortcut is, uh oh, that’s probably a predator. Let’s not f around here. Let’s not overthink this. Let’s grab this fruit and get back to the cave where it’s safe.

[13:12] Bill So rather than fully investigating the environment, gathering and assessing all of the information to determine whether or not it’s a predator or just some annoying squirrel. You haul ass back to the cave. That’s confirmation bias. It’s a cognitive shortcut that was originally designed to protect you. Has a great um survival advantage there. Now, let’s fast forward thousands and thousands and thousands of years. Well, that circuit is hardwired and very deeply wired in the brain. So, we all do this. Jurors do it. We take everybody. We all do it is we tend to make these cognitive shortcut quick judgments. And here’s the key. It aligns with the pre-existing belief system. That’s the core of it. And this is where we have a problem with jurors. This is where we have a problem with jurors because we don’t want on the defense side, you don’t want them taking cognitive shortcuts. Oh my god, it’s a nightmare.

[14:44] Bill Okay, because if a juror has a belief system and then they hear the plaintiff’s opening, they can make that cognitive shortcut and kind of go all in very very quickly. They will not wait. They will not go out into the bushes to see is this a predator or is this a squirrel? They’re not going to do that. And then you, the defense, gets up there and they’ve already made their cognitive shortcut based on their belief system. And here’s the worst part about confirmation bias is going forward, we have something called selective attention. Meaning they will only pay attention to things that align with their pre-existing belief system. Mhm. Very, very dangerous. Very, very dangerous. So, I’m kind of scrolling through the paper here. You guys are going to love this paper. Love this paper. Right. By the way, if you hear all this banging in the background, that’s my I got construction guys here trying to finish this damn house all year, every day. Workers in here, drywall, just pounding power drills, you name it. Right.

[16:12] Bill So, confirmation bias with jurors, right? So did it starts early cuz jurors are like, “Well, god, if we’re all the way here, I mean, if we’re all the way here in the courtroom, somebody some the defense must have done something wrong. I mean, hell, I mean, they dragged me out of work and they’re paying me $1,750 to be here. Something must be wrong.” So, they must have done something wrong, right? So, that’s kind of how it how it how it starts. So what do we do in disruptive voir dire for you Texas attorneys voir dire what do we do? So remember the number one rule of disruptive voir dire there’s this the number one rule number one rule everybody write this down it’s the number one rule everybody’s scared of it it’s the number one rule of disruptive voir dire. Okay, I’ve said this a million times on the podcast. I’m going to say it again because that’s the number one rule. If you—Okay, if you want to solve a problem, right, if you have a problem and you want to solve this problem, expose the problem. If you want to solve a problem, expose the problem because that forces attention and cognition. And if you’re forcing attention and cognition, it’s impossible to make a cognitive shortcut.

[17:58] Bill A crap. I got a meeting in 15 minutes. Let’s go. Okay. So, this we’re going to wrap this up here quickly. All right. So, how do we expose this problem? We have to ask the right questions. You have to ask the right questions, right? Here are just a couple couple of them, right? That you can you can work with. Okay. So, one of the questions would be so remember there’s a whole process with you have to set up the question. You have to show that you’re vulnerable. You talk about confirmation bias. You bring this up. You hey, this happens to us all. You normalize the problem. Expose it. We in society tend to make quick decisions. Let me tell you a story about when I made a quick decision, I was dead wrong. And then once I gathered the rest of the information, I took a cognitive shortcut. Me, defense guy. I took a cognitive shortcut and I was dead wrong. I fell for confirmation bias. That’s step number two. Okay? Show your own vulnerability. Normalize this. Step number three. Can you think of a time, ladies and gentlemen, where you felt you felt really strongly about something, but you ended up changing your mind after you learn more. Let’s let’s talk about that. I just told you my story where I made a cognitive shortcut and boy, I was wrong. I changed my mind once I got more information. Let’s talk about your experiences.

[19:36] Bill Okay? So, you see where we’re just dark psychology, folks. Okay? We’re exposing the problem. We are forcing cognition and attention towards the problem that you want to prevent, which is a cognitive shortcut, which prevents by definition the cognitive shortcut because you’re forcing cognition and attention. You’re exposing the problem. Okay? The thing you don’t want them to do. You’re exposing that. You’re saying, “Hey, we’re all susceptible to this, even me. Let’s talk about times in your life where it’s happened to you. It’s okay.” And they’ll start telling you about their experiences. Okay? You’re priming them for your case to stay open-minded by exposing the problem. And then here’s the great part, teaching them what to do to not make the cognitive shortcut. And that is waiting and gathering information. You’re telling them, “Yes, go into the bushes. See if it’s a squirrel or not.” versus making this quick decision.

[21:03] Bill Okay, another kind of different version of this question. Have you ever realized that your first impression of a person or perhaps a situation was wrong? At first glance, you thought you had it all figured out and then it turned out, yeah, you didn’t have it figured out and then you figured out a little bit later after what? Waiting for more information. Tell me about that experience. Okay. Now by doing this you’re programming programming strong word programming all the juror’s brains to not fall into confirmation bias and taking the cognitive shortcut. But you have to put this effort in right by exposing the problem and get them talking about it. Because what you’re saying is, boy, isn’t that kind of stupid? It’s kind of silly to make quick decisions, isn’t it? Because we’re wrong a lot of the time is what you’re saying. Now, you’re not going to say that.

[22:29] Bill Now, here’s the best one. Here’s your closer. Here’s your closer out of the bullpen, bring it out of the bring it out of the bull—Here’s your closer coming in to finish this. After you do this, right? So, you’ve set it up, you’ve defined it, you’ve you’ve talked about your personal experience with confirmation, but you get the jurors to talk about them. Here’s the closer after all this is done. This is the last question on this topic. You say, you ready for this? What do you think the consequences are to this cognitive shortcut confirmation bias everything we just talked about? If jurors did that during a trial and during this trial or during any trial, what do you think the consequences would be to the the legal system and the parties involved? Uh-huh, right. Uh-huh. See, and then the first hand’s going to pop up and you’re going like, “Juror number seven, what what do you think the consequences of are going to be here?” And juror number seven’s going to say, “Well, well, jurors could make decisions too quickly and they could be wrong, just like those other things we just talked about.” Exactamundo. Exactamundo. Had to go a little Pulp Fiction there, Jules. Look at the big brain on juror number seven. It’s a very tasty burger. If you don’t know Pulp Fiction, you’re not going to understand any of this.

[24:12] Bill Okay, that’s so everything I just laid out, that’s how you handle confirmation bias. But yeah, you you can’t be dilly-dally. You can’t be sloppy with this. It’s a system. It’s a system. You got to start and go through these various steps to get through the end of you can’t just jump to the last step. Okay? You have a problem. Here’s a problem. Expose the problem. Show how you personally are vulnerable to the problem. Tell your story. Trust me, we’ve all done it. We’ve all met somebody and then immediately said, “God, what an [__].” Right? And then a couple hours or a couple days later, you’re like, “Oh, wow. This person ain’t so bad. I I learned more about them. More more information became available and now you’ve changed your mind about that person, right? Or a situation. You walk into a restaurant and you kind of get that feeling. God, I don’t know about this. And then 20 minutes later, you’re like, “Wow, this is the best damn food I’ve ever had.” Right? That cognitive shortcut gets you in trouble. And so, you point that out.

[25:44] Bill Then next step, get the jurors talking about how they’ve done the exact same thing. And it’s human. It’s normal. Now you’ve exposed this problem. You’re forcing cognition and attention and then that final your closer out of the bullpen. What do you think the consequences are if jurors if jurors did that on an important lawsuit? What would be the consequences of that? Okay. Now, the statistical odds of them jumping to conclusions and taking cognitive shortcuts during the trial have drastically decreased. Drastically decreased because you reprogrammed their brain. God, I love this job. I love it. All right. So, again, I’m going to get this paper out. Email me with questions. Call me uh or whatever. But like like you’re crazy not to ask these questions because that it’s one of the top issues you get from the defense. It’s this confirmation bias in these quick decisions, right? Kills you. It kills you.

[27:08] Bill This is all psychology. There’s no nothing legal about this is all this 100% psychology, right? So, confirmation bias. Okay, think about that. Think about what I just said. Okay? And you can word things in your own way, but I just walked you through the steps on how to do this. Now, what we can do for you if you if you’re going to trial, trust me, we have a laundry list. Confirmation bias is one of like the 13 areas that we cover and every area has certain questions and the setup. We can help you along with this. You don’t need a jury consultant sitting there in the courtroom with you. You need the right questions. You need the right plan of voir dire. Okay, that’s what you need. So, next to the opening statement stuff I talk about all the time, this is area number two, consulting on constantly because this is where the needle moves.

[28:10] Bill Okay? Do this the right way. Set yourself up for success, but then don’t go giving an hour and a half opening statement because then then you just shot yourself in the foot. We talked about that a lot. Okay. All right. I got to jump on this. I got a new new case intake I got to do. But listen, confirmation bias, perilous, but fully preventable if you handle it the right way. All right. Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky. See you next time.