Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. take a look back at some cases the CSI team worked on during 2025 and share stories, takeaways, and lessons learned. Bill and Steve talk about what causes witness deposition failures and why leveraging neurocognitive witness training leads to improve deposition testimony. They talk about why the work attorneys do to prep witnesses are often inadequate and why its not the attorney’s fault.
Bill and Steve also provide updates on recent changes in how CSI conducts jury research and how focus group research has transformed case development and strategy for attorneys. They describe the importance of validity and reliability in jury research and how conducting exploratory research like focus groups vs. confirmatory research like mock trials can significantly improve litigation management decisions.
Lastly, they discuss alternatives to traditional jury selection and why a focus on voir dire questioning strategy (disruptive voir dire) and opening statement construction is much more useful than having a jury consultant sitting next to the legal team during jury selection.
Full Episode Transcript
[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky, Dr. Steve Wood uh coming at you not live but recorded from the Hampton Inn and Suites in Chapel Hill, North Carolina. Going to a basketball game tonight. Uh Steve, it is absolutely freezing outside.
[00:38] Steve It’s brutally painfully cold.
[00:41] Bill Yes.
[00:42] Steve And we won’t be walking anywhere today.
[00:44] Bill We’re mid 20s tonight. Yeah. We’re going to Uber. We’re busing. We’re doing all that stuff. Um Happy New Year.
[00:51] Steve Happy New Year.
[00:52] Bill Yeah. Uh, this episode, we’re going to call this the, uh, year in review. The year in review. Uh, Steve, you have been, this is going to be more of me interviewing you because you’ve been on the front lines, uh, all year in 2025. Uh, you’ve seen plenty. You’ve probably lost count on how many cases you have worked on uh this calendar year, but I thought it’d be a good idea to kind of tell the audience kind of what you’ve seen at the various uh you know uh areas and various levels um of litigation. I know many of the cases you’re working on, you’re getting in early, which is always nice. Uh there’s some cases where you’re getting calls last minute, which I mean um we’ve preached on this podcast that if you want to get on our bad side, yeah, call us two weeks before your trial and that’s that’s not going to be a very fun phone call. And you’ve had some chances to do some uh things in uh voir dire, jury selection, opening statement, uh stuff like that. So, let’s go through this, but let’s start with um the great controversy from last night at dinner. Okay. Now, we have made it very clear, and I have made it very clear in this podcast. Um, pineapple on pizza should be illegal in all 50 states with a very harsh penalty. Um, last night, uh, we both ordered, uh, pizza, uh, 12-inch, uh, personal pizzas. Steve, you ordered, now, now I think you’re arguing that you did not violate uh, because this was a a pico mix, right?
[02:25] Steve Exactly.
[02:26] Bill That had pineapple in it, right? Okay.
[02:28] Steve They couldn’t take off the pineapple because it that was in the pico. So, I had to either not get the pico that had all the other things I wanted in it or—
[02:37] Bill Okay. Cuz I think what I’m mostly referring to is like cuz most— it’s like called the Hawaiian pizza, right? And it has like usually like ham and pineapple. Absolutely. 100% disgusting. Should be banned from society. Illegal. You on the other hand, I think you had the what it was like the spicy sausage, right? And it it had this pico mix. So I’m trying to I’m try I’m just I’m trying to figure out whether you’ve committed a crime or not.
[03:03] Steve I will I will I will say though that I thought it was a good idea at the time, but after I had it.
[03:12] Bill Yeah. What was the verdict on this?
[03:14] Steve It didn’t. The pineapple I could have done without the pineapple.
[03:17] Bill That’s why I can’t believe you ordered it. Um but yeah, I’d like to hear from the audience more about about this. Several people have reached. I remember the whole Ritz versus Triscuit debate. Yeah. Right. Ritz was just like, “Yeah, those are for 5-year-old lunch boxes.” You know, Triscuit is the superior cracker. I had a ton of people reach out to me, by the way, in agreement uh that Triscuit’s superior. But I’d like to hear from the audience about this whole pineapple on pizza thing. It’s just it’s very very bad. And plus, yeah, I lived in Chicago for 15 years. Yeah. Tryy to find pineapple on a pizza in Chicago. Let me know how that works out for you. Order. Go to go to Chicago. sit down, go to any of the pizza joints downtown, right? Italian joints, and say, “Oh, yeah, by the way, can you add pineapple to my pizza?” They’re going to like beat you up.
[04:00] Steve I think we need to do that as a research show.
[04:02] Bill I think that would be a good one of those hidden camera things. Yeah. What would you like on your pizza? Well, add like sausage, onions. By the way, can you add pineapple and just and just record the reaction you get? I think there’d be a very violent response to that.
[04:16] Steve I like it. Let’s do it.
[04:17] Bill Okay, before I think I— What are some other things I wanted to cover with you? Cuz um, oh, um let’s see. I’m going I’m going through my I’m going through my list here. Going through my list. Oh, so you’re a social psychologist. So, I’m at the airport yesterday. Okay. So, you got the food court at Orlando International Airport now. Okay. So, there’s like five different places. Okay. You got your um Mike’s Mike Subs. Is that what it’s called?
[04:49] Steve Jersey Mike’s. Yeah.
[04:50] Bill Yeah. So, you got Jersey Mike Subs, right? Then right next to it, you have the Italian. They have mostly pizza, but some Italian food, right? So, this is like in a food court. Then you have uh the uh Asian, you know, place, right? And then next down the line, you have uh Chipotle. And then next to that, in the final slot is uh McDonald’s. Okay. Now, let me this let me tell you, you’re a social psychologist. Okay. So, I walk in and the Chipotle line is like down the hallway. It’s a mile long. The McDonald’s line is two miles long. There’s nobody in the Asian food line. There’s nobody in the Italian line. By the way, the other pizza, it looks like great pizza. No pineapple, by the way, at the— you can’t find no, there’s no pineapple there. Uh, and Jersey Mike’s like there’s like five people in line. What does that tell you about our society? The McDonald’s alone. It’s like the worst food on the planet. The mile it’s it’s it’s two miles long.
[05:54] Steve Yeah. And it’s the same thing at the Chicago airport, too. If you go to O’Hare, McDonald’s out the door. Everything else.
[05:59] Bill The Chipotle line was— And I like but the problem I have with Chipotle is um the burritos have gone from like football, like NFL football side down to like Nerf football size. And they’ve and they’ve increased their prices by 25%. It’s very disturbing. It’s good though. But but if I like if I’m the owner of the Asian place or the Italian place, man, losing money. Losing money.
Here’s my theory. I think I think it’s too messy. I think, you know, because you’re getting rice and noodles and beef and broccoli and stuff and then pizza, you know, that can be really messy. It’s not airport friendly. Chipotle airport friendly. McDonald’s airport friendly.
[06:42] Steve Very true. Good point.
[06:43] Bill So, I’m just thinking maybe like are you going to take—Have you ever ordered Chinese food at a airport and then taken that on the plane with you to eat in the plane?
[06:51] Steve No.
[06:52] Bill And why not?
[06:53] Steve Too messy.
[06:54] Bill It’s too damn messy.
[06:55] Steve And because you stink up the whole plane.
[06:56] Bill Stink up the whole plane, too. Uh if you got two slices of uh pizza again without without pineapples or mushrooms, by the way, would you take that and carry it on plane with you?
[07:07] Steve No.
[07:08] Bill See? I think that so I’m just thinking from a business perspective, these may not be the best two locations for that. You’d want you’d want something else. See, Chipotle, they wrap that thing up. Boom, put it in the bag. You take on a plane.
[07:20] Steve That’s for that’s for a whole another rant though, eating on a plane. Especially something like—
[07:22] Bill That’s the other thing. I don’t like doing this. I get there early. I do not want to be taking food on planes. Uh, planes are disgusting. Germfest. Okay. Should we actually talk about work? Talk about litigation psychology, friends. Okay. Well, I got a lot of feedback uh today on the podcast and many people reach out and they say how entertaining it is because it has to be. If we just talk about psychology all day, no one’s gonna no one’s going to listen to that. Okay, so let’s start with uh let’s start with let’s start with witnesses. I know that you’ve prepped um I mean probably over a hundred witnesses this year. I mean at the rate that you’re going uh many of them for uh for deposition. Um you you had you had the recent uh which I want you to tell this story uh obviously maintaining confidentiality but um witnesses are tricky. You think you know your witness, everybody thinks they know their witness and you may not know your witness and then um some some negative things can happen in the prep. So, kind of globally tell me um how witness training’s been going um as far as deposition preparation, how attorneys are uh I mean are you getting any attitudes anymore with it? Are people pretty open with it? And then maybe some of the unique challenges you’ve run into this year with particularly this recent case.
[08:40] Steve Yeah, I think globally attorneys have been really open to to us being there. I think before it was a lot of push back of like, well, I prep my own witnesses. What do I need you guys for? But I think on the whole our clients have been really really good in understanding kind of how our job is to do the psychology, their job is to do the legal aspects and that we kind of leave them to do that. And I think they start to realize, okay, we bring a different skill set to the the training session that’s a little bit different than theirs. Not because one’s better than the other, but they just realize that both of them help to make for a better witness. So, I’ve seen a lot of positives on that. Uh, as far as the witnesses go, I mean, yeah, it’s been a big variation of personality types and taking time to understand what works for a certain witness may not work for another witness.
[09:28] Bill And I think that’s a key variable. I think that’s a key variable because I think if you’re in a if you’re a defense or a plaintiff attorney where I mean witnesses are witnesses. They’re all human beings. They’re people. If you’re doing some cookie cutter approach for every witness, that’s not going to work, is it?
[09:43] Steve No. And I think a lot what ends up happening is that as you’re going through the training, you’re starting to get a feel for how the witness is and realizing, all right, what I would do for a corporate rep is going to be a little bit different than what I would do for a truck driver. And then even still within truck driver, some truck drivers are going to be better than others or more comfortable than others. So even still, you can’t say, “All right, this is how I’m going to operate for a truck driver.” It’s going to be this is how I operate for this truck driver in this case. And you have to adapt the approach for every witness across the board. I mean, obviously the training of how we’re doing is consistent, but how you approach and how you work with the witness is going to differ depending on the witness.
[10:21] Bill Yeah, absolutely. Um, talk a little bit about about this story because um, this is important because I think that well, a couple things. Number one, we know after going through my career, I mean thousands and thousands and thousands of deposition transcripts, deposition videos, the vast majority of mistakes that are made are psychologically based.
[10:43] Steve Yep.
[10:44] Bill They’re not effort-based. They’re not strategically based. I continually tell attorneys all over the country because they tell me how their witnesses bomb and I’m like, “It’s not your fault.” You can, you know, “I prepped this witness for five days. They still bombed.” I’m like, that’s not the point. It’s not your fault. It’s that you have these psychology issues that aren’t being addressed and those are, you know, cognitive issues, behavioral issues, emotional issues especially. And then those things will surface during the deposition. And um the deposition can implode. And I think uh you know, again, everybody says this, but like you say in passing, uh there’s a massive mental health problem in this country. Um, and it’s it’s it’s never been addressed. Um, but you have to understand is these witnesses are part of the general population. And uh, many of them have issues, some mild, you know, some moderate, you know, some actually severe that if you don’t know about, right, um, you put them into a stressful situation like a deposition, um, these things can become, uh, exacerbated. So, why don’t you kind of tell this story? And something that popped up that was pretty significant. Uh how you dealt with it and what the outcome was.
[12:02] Steve Yeah. I think one of I don’t even know if I told you about this either is that I was I was prepping four witnesses on this case and I got brought in was because the focus was on a few of the witnesses and one of them specifically and interestingly enough the one that had this issue that came up was not the one they were actually worried about. It was not the person that they had brought me in to say this is a this is the problematic witness.
[12:27] Bill Now, this happens all the time. We come in, we’ll prep multiple witnesses, and I I do like to ask ahead of time like, okay, of these five witnesses or four witnesses, which ones do you think are the most like rank order them? And they give it to me. It’s rarely accurate by the end of the day.
[12:41] Steve Yes. In this one though, the one who we had the most concern about was probably the one that was the easiest as far as from the psychological perspective. But what happened was with this one witness was that we’re in the middle of the training session and as I was kind of going through some things, the kind of the gravity of the whole thing hit him and right in the middle of the training session, he started to have a panic attack. His his his heart started racing. He said, you know, I’m starting to sweat. I’m starting to have kind of like a chest tightness and stuff. I almost thought—
[13:12] Bill Now, what was the attorney doing when this starts happening?
[13:16] Steve Panicking.
[13:18] Bill So, so now you have two people having a panic attack.
[13:19] Steve Yeah. and and I and I we almost thought we were going to have to to call the medical professionals, but I mean I I kind of knew where he was coming from that he was having a panic attack. So, right in the middle of the training, we just stopped and and helped him breathe and helped him go through that to kind of calm himself calm himself down. And after about 10 minutes, he got calm. He, you know, he got more grounded and and it kind of passed. And interestingly enough, after kind of went through that, did the breathing, I found out later when he went through his deposition that he did really, really well because he put the breathing techniques, he he did all these different things and put him in place and actually did really well in the deposition. So, but it was interesting and a little bit scary, right, to to be in the middle of it and then all of a sudden just kind of see him start to have a panic attack.
[14:07] Bill Yeah. Now, some witnesses come in and uh we know this too. Uh I just did a podcast uh on this a couple weeks ago is they may have personal things going on in their life that’s causing a lot of stress and anxiety and that’s all going to come out. And so it’s important to really get to know your witness, ask about how things are going uh on their lives and then others they can have issues strictly due to the due to the litigation. So, the litigation’s the negative stimulus causing you know extraordinary uh levels of anxiety but then sometimes you have a witness they have all this baggage that they’re coming in and the stress of litigation is like the straw that breaks the camel’s back. Was this did did you were you able to talk to this witness about kind of what the source of this anxiety was or was a combination of things?
[14:57] Steve It was a combination of it and and really the truth of the matter it was it was the fact of just an overall uh nervousness about having to answer questions under oath and you know kind of this worry about what if they ask me a question I don’t know the answer to. I’m not as cognitively sophisticated as you guys are which obviously I always say doesn’t really matter. Um but a lot of witnesses get kind of nervous about that who may not have you know graduated even high school. They get worried about these attorneys are going to be so much smarter than me. Everybody else in the room is so much smarter than me. When I got asked these questions under duress, my brain’s going to lock up. So, we worked with them through that just to realize none of that what you’re thinking matters. Kind of like when you and I talked about catastrophizing. Remember those when we did a podcast and a paper on that? That’s what he was doing.
[15:47] Bill Yeah.
[15:48] Steve And then getting him over that was what allowed him to say, “Oh, okay. I don’t need to be the smartest person in the room. If I answer the question the way I answer the question in my own words, that that’s enough. I don’t have to sound super smart or like I’m educated when I’m giving an answer. So once we got over that, that was the root of it. It helped him to to be a better witness.
[16:08] Bill I had one where u it was a surgeon. He was foreign born first deposition. He during the prep he’s sweating like sweating bullets. Sweating bullets. He’s talking a mile a minute and he had all the it’s catastrophizing. Yeah. And he’s like, I’m going to if I don’t do well in this dep, I’m losing my medical license. He thought he could possibly be incarcerated. Like he didn’t know the difference between civil and criminal because he’s foreign born, which by the way, it’s like 44% of health care professionals are foreign born. So I I did the relaxation, took, you know, I identified all of the illogical thought patterns, right? That’s how you do it catastrophizing. And laid this all out. Got him to calm down. It took like 45 minutes. He stopped sweating and he was like so relieved. Okay. And then he goes, “Can we take a break?” I’m like, “Yeah, of course you—It’s been a rough 45 minutes.” He goes, “I want to go call my wife to let her know I’m not going to jail because of this.” He had been dragging this around for months with him. and his wife like none neither of them are sleeping because he thinks I could go to jail if I don’t do well in this deposition on a medmal case. So yeah, your witnesses may come into this with a lot and we’ve wrote a paper on this on the what the 13 cognitive distortions and they can come in with these very illogical assumptions and thoughts that can completely blow up your prep. And the only way to the only way to get to the bottom of this is to ask the right questions, do the proper assessment. That’s what you and I and our team do. And if you don’t have a degree in psychology, it’s really really hard to do that. Now, talk maybe about some experiences you’ve had because there’s an other side of this coin. The witness that comes in, they’ve been deposed a couple times before. They think this is a waste of time. They keep looking at their watch and they don’t think it’s a big deal. How have you had a couple of those this year? And how have those gone? Because different approach. They’re too relaxed
[18:08] Steve Yeah, I’ve had a couple I’ve had a couple of those. And what I typically do in those situations is then I say, all right, you know, you can kind of tell, right? They’re, “I’ve done this before. This is a waste of my time.” You’re not going to tell me anything new. And then usually what I do is I say, “All right, well, let’s let’s just play some cross exam game then, you know?” And I’m going through and asking them questions and I can trip them up usually by the fifth or the sixth question. And then I’m like, “See, you just coughed up the case.”
[18:37] Bill does of reality.
[18:38] Steve Exactly. Yes. And and I will say that almost always after they do that, you you get a change in their attitude and they’re like, “Okay, well, I guess I didn’t realize I knew as much.” And then they’re fully they’re fully bought in to to the system once they realize, “Okay, the tough love approach.”
[18:55] Bill Yeah. But this just goes to show how two different witnesses, how we in our team handle these types of people completely differently. Right. And it changes from case to case to case to case. So, um, but I know that you’ve gotten a lot of follow-up emails and phone calls from witnesses that, uh, were shakier, there are concerns and ended up, you know, doing really well. Um, and that’s and that’s what our role is is to handle all the, um, the psychological issues. So um from a strategic standpoint where so where the attorney benefits is that uh all the strategy and the prep that they want you on the case strategy all that’s going to stick and that’s what you want but all these emotional or psychological issues come in like it’s really really difficult for any of the strategy to stick.
[19:44] Steve So, but I think there’s one other important point too that I think a lot of attorneys get, but I think it’s worth mentioning is that when we get brought in that sometimes when we realize these attorneys are having the or excuse me, these witnesses are having these emotional problems that it’s okay to kind of deviate from the training. It’s okay to deviate from the case discussion and handle these things because we’ve had it before, right, where someone says, “Hey, let’s go. We need to get going with this training. We don’t got all this time for all this touchy-feely stuff. We need to get going and talking about the case facts.” But I think there’s a time and a place for that. But if you don’t address the other portions, then trying to get them to talk about the case facts is not going to be helpful. So I think it goes to just an understanding of, hey, it’s okay to set aside 45 minutes to address these psychological things. It’s not going to be the end of the world. And in fact, it’s actually going to help the case, which may seem like tangential to the in the moment is is not at all.
[20:39] Bill Absolutely. Let’s uh transition into jury research. You’ve done a ton. I mean, you’ve really been on the front lines of this. And you’re the Director of Jury Research. Um which means that you just pretty much yell at everybody on on the team, right?
[20:55] Steve Plead the fifth.
[20:56] Bill Yeah. There you go. Um there you go. Talk to talk about uh well number one talk about how jury research well at Courtroom Sciences uh we’ve really really uh evolved um I think we’re on the cutting edge of things I I know a lot of competitors are doing doing it the same way now that they did it in 2002 um talk about um how we’ve um we’ve definitely evolved uh shifted uh with our approach uh and we’ve always preached a lot of things that it’s like like our friend our good friend Tony Batista says nobody effing listens right uh but now people are starting to actually listen and we know um virtually we can do some things that we weren’t able to do uh in the past talk about the benefit to to our clients and you’ve done a ton of these uh doing uh a specifically the focus group model as opposed to mock trial but b getting these answers early on in the case and the type of things the type of benefits that our our clients get from that as opposed to the hey we get a trial in 45 days can we throw something together right that’s not the best position to be in.
[22:10] Steve No I think one of the things that’s been interesting for sure in 2025 was the number of mock trials that we were doing has significantly decreased from what we normally did. It’s a lot of issues focus groups and it’s a lot of these online case assessment panels because I’m thinking a lot of the the clients are seeing the value in a less of kind of let’s just talk at the jurors versus let’s hear from the jurors
[22:35] Bill Completely. Listen that’s I think that’s the key here is because listen with your standard mock trial it’s like a real trial you talk to them all day you don’t talk with them and if you do it’s at the very end they’re exhausted they want to get the hell out of there and it’s it’s not really uh valuable by essentially using your entire session and interacting with them. Talk about the the the benefits of that.
[23:00] Steve Yeah, I mean you get a lot of honest, brutal feedback because the way we do it, right? Rather than being very adversarial, it’s more kind of professorial as you like to always say, you know, you’re the law professor presenting the case to your class on both sides, right? And and getting their feedback. So, you get a lot of raw feedback from jurors where they’ll tell you things they really don’t like or things that are unclear to them or things they do like, you know, and you hear it from their words formulated the way they like to hear it, right? They might not say it exactly the way you think that they’re going to say it, but they’re going to say it in the voice of the jurors, which then helps you to realize, okay, what are they seeing? What are they picking up on? And then, how do I formulate my arguments? Okay, this argument didn’t stick, but if I change it and and tailor it this way, then it’ll be more persuasive. Uh, so I think that’s been a big benefit to our clients, especially too, we’re doing a lot of the test retest, I think, which will have been massive.
[23:54] Bill The number one I think the number one tell tell the I’ve talked about this before on podcast, but again, redundancy is a great thing. Tell them about the benefits of this uh uh a two or even a three session test retest because here’s the key with jury research and the old way of doing it. If you do and let’s just talk scientific method. If you test anything anything in any industry at one once one at one time point you’re only testing one set of scenarios right and we know in litigation you know do I admit liability do I not admit liability? What if this motion in limine gets shut down or not like what is maybe this evidence comes in and maybe it doesn’t come in right there’s all sorts of maybe our codefendant settles before and we’re we’re up there alone versus they’re in the all kind and you you it’s impossible. Well, you can do it. You could just do it very poorly, right? But it’s really impossible in a valid reliable way to test multiple scenarios in one setting. You need testing at multiple time points. Talk to us about the test retest and the types of answers you can get versus the traditional way of just doing it once and taking what you get.
[25:12] Steve Yeah, I think there’s a lot of value in the test retesting. It goes back to what you’re saying is I guess it just depends on whether it’s a motion in limine or whether or not it’s a piece of evidence coming in or not coming in. You know, the whole idea like you said you can do it poorly of, hey, what if I told you what what if I told you that they said this? How would that change your thought process? I I think you and I have said this before multiple times that jurors are really really bad at telling you how they would integrate a piece of information after they’ve been thinking a certain way for the whole time doesn’t work. So that’s one way is is if you have different things to test, testing it with, testing it without. But then going back to the other thing of just I mean how many times have we used it where it’s literally they present the same information in the morning then they present the same information in the afternoon but it’s being presented to different jurors and then getting a sense for okay we did it twice with two different groups. Do we find consistent answers? Do we find discrepancies? Do we find differences? You know, and if you test it twice and you get similar answers and you get consistency, reliability, reliability by definition.
[26:15] Bill Yeah.
[26:16] Steve Then you have a better sense of, okay, we know now this is a consistent answer across different groups.
[26:21] Bill And most again, attorneys, clients, they’re not trained like us. They don’t understand this. Validity and reliability are the key to science. I don’t care what area of science is. If you don’t if you’re missing one of those, you’re you’re you’re in big trouble. And you can do a single project and have validity, but you cannot by definition do a single project and have reliability.
[26:48] Steve Correct.
[26:49] Bill That requires multiple, you know, at least more than at least more than one. And so, yeah, I see um we get we can get very creative with these because listen, a lot of our clients are like, listen, here’s another great example for test retest. How hard can I come at the plaintiff? Right. Okay. Like like so we can set this up where in test one we’re pretty much saying yeah the plaintiff is mostly to blame here and test two maybe you back off a little bit and you focus on causation. Um uh very very effective in getting those answers because you know as well as I do sometimes you do that first test it just blows up in your face. Just blows up in your face. Or another, you know, we do a lot of um damages only projects and you do test retest to test different counter-anchors, right? We did the the one a couple weeks ago where uh I think the plaintiff we set the plaintiff demand for $100 million and the counter-anchor was 15. Guess what? All the verdicts came out at $100 million. They did not like they were very highly offended at the 15. Now, before the project, you know, client, yeah, 15 sounds good, right? Well, you just don’t know. You don’t know. And we’ve done several of them where sometimes you got to do it three times to figure out, okay, what counter-anchor is palatable? Doesn’t seem like lowballing. And a jury goes, you know, that’s that’s reasonable. That’s going to change from case to case. And I think where a lot of mistakes get made and these lead to nuclear verdicts is you don’t either you don’t test your counter-anchor appropriately or this is what really happens. You don’t test it at all and then you’re you’re guessing and you’re going to the real jury with your best guess at a counter-anchor that’s untested. I mean that’s disaster written alert, right?
[28:40] Steve Yeah. And I think I mean let’s be honest. Do you think the the numbers that the plaintiffs are throwing out they’re just kind of willy-nilly and throwing them at dart boards?
[28:45] Bill No, they’ve been and they they get out and trust me, the plaintiffs have, by the way, plaintiffs have what, like there’s like 10 like we’ve got I mean, name another defense civil litigation podcast out there. I I can think of one. They don’t put out a whole lot of content. There’s like nine or 10 really good plaintiff podcasts uh for plaintiff attorneys and they openly discuss this stuff and they’re like I find my damage like by I do multiple focus groups and I test you know sometimes they throw out a hundred and sometimes the jurors are like that’s it like I would have I would have given you 135 it’s like oh okay and you learn that and sometimes you throw out 100 and they go 100 are you out of your mind and they use that to titrate kind of where they need to be. The defense can easily do this themselves. On the counter-anchor.
[29:35] Steve And I think it obviously you don’t want to, you know, always the concern is is what if we anchor too high and we end up paying more than we should, but once again you anchor too low. How many times have we seen it? I mean, I think we see it more often than not when when we’re doing a counter anchor that jurors are like, “That’s it. That’s all the defense is going to offer.” I mean, I think that was offensive. If you had offered, you know, a million versus 250,000, I would have said, “Okay, you know what? You’re a little bit more reasonable.” But the fact that you offered 250,000, now I’m just irritated at you and now I’m going to give them more. So once again, just just testing where’s that breaking point? And you know, yeah, you might pay a little bit more, but I guess the question is, do you want to pay a little bit more or do you want to lowball, piss the jurors off, and then pay even more?
[30:17] Bill And then you’re gonna pay even more. So what so in 2025 and throw a ballpark percentage what percentage of the jury projects you worked on for the year of 2025. What percentage of those were completed prior to mediation with the motivation is the client wanted to be armed and ready for mediation purposes versus what was the percentage of hair on fire, you know, trials imminent and and it was kind of an emergency jury research project. What’s the what’s the what’s the rough breakdown?
[30:56] Steve Rough breakdown. I would say probably 30% that were probably pre-mediation and then—
[31:04] Bill See that’s not good. See that number that yeah that needs to be flipped around right. It should be it should be 70% pre you know and then 30% pre-trial and the the problem is and correct me if I’m wrong the the pre-trial when I mean pre-trial it’s typically 90 days—
[31:21] Steve Yeah
[31:22] Bill Before trial and it’s the first time they’re testing anything. Whereas, you know, our our smart clients get in early and uh they call us and yeah, we got that case resolved. Thank you. Because the jury research really it did a couple things. Number one, it woke us up. Number two, we were able to explain we we we could we had a good position with the mediator, and we could rationalize why we were we we were what our stance was and we had the jury researched up. But most importantly, no one wants to talk about this. A lot of cases get settled. I had a phone call uh yesterday on this where um the whole motivation was like listen for me to get authority to sell this case like from the board of directors the ones are going to be writing this check I need to go to these people with some data I can’t just be like yeah give me $20 million to sell they’re going to be like why 20 well if I don’t have any data right so that data and having that early um you can really I just think I think it helps you position cases for resolution a lot better. But how many times— Okay, so when you’re doing this 90 days before trial, some of the most painful things I see is um discovery’s closed and and like they’re showing video clips of our witnesses. They’re just getting they got murdered at dep. The jury doesn’t like the witnesses and you’re 90 days before trial and there’s not a whole lot you can you can do with that.
[32:55] Steve Yeah. I think one of the things that stresses me out probably the most is when I hear jurors say hey I really like to see this or I really like to see that and then I find out well discovery’s closed. It, you know, it makes it difficult to to try to defend the case or you just have to use what you have and then how do we tailor what we have to fit the theme that we want to develop. But yeah, I mean I that for me, like I said, stresses me out from at least from trying to help the defense perspective.
[33:21] Bill Because you’re locked into an angle that’s that we have now figured out doesn’t work. And so now if you want to settle, it’s probably going to cost a lot more. Yeah. So, it’s uh I I would say um and again many of our clients um I would think you tell me I think our core clients, our repeat customers, the ones I think they’re the ones doing it early. I think the the one-offs where hey, I got your name from some other attorney. I’m in deep trouble. I need X, Y, or Z. That I think is that mostly when the late stuff comes in?
[33:53] Steve Yes. Yeah. A lot of our core clients have been really good and even sometimes when our core clients get late, they know they’re like, “Sorry, guys. I’m so sorry. Yeah, you’re gonna hate me.” Yeah. They at least they they preempt it by saying, “I know you guys are going to hate.”
[34:04] Bill I had one email the other day. He goes he goes, “Hey, I’m an avid podcast listener and I’m violating your number one rule, but yeah, I got to draw.” And it’s like, oh god.
[34:14] Steve No, it happens. But I would say, like I said, our core core clients are very very good at it and are starting to get to a point where they’re doing it really really early. And so when I say that 30%, that’s probably more of the 30% that I’m referring to of yeah, doing it before before mediation. So it it’s been it’s been good.
[34:32] Bill Now, um I’m going to hit you with a curveball question. When doing research, uh jury research, um we’ve made this very clear to our audience and our everybody everybody knows this now. Um we do in fact do plaintiff work and we do it in a very specific circumstance and that is um corporate you know right um commercial litigation uh where the the plaintiff is a is a entity it’s a it’s a it’s usually a defendant but in whatever you know one company suing another company we’re on the plaintiff side um describe to our audience um and be and be be nice but be honest right um the difference when we’re working with uh plaintiff attorneys on a uh corporate/commercial matter versus working with um defense attorneys because this they are wired differently in my mind.
[35:30] Steve Yeah, definitely definitely wired differently. Uh very very good, very prepared, very—
[35:38] Bill The level of preparation, organization is unlike anything I’ve ever seen.
[35:41] Steve Yeah. Very methodical. Everything is buttoned up, you know, every it’s very very good, very prepared, I guess, is is really very proactive.
[35:52] Bill Yeah, very very proactive. Um, and unfortunately, I think um the defense model traditionally has always been one of reaction and that’s why we, you know, we’re trying to we have a very different philosophy at CSI and we tell all of our core clients is you want to be proactive. Here’s why. Uh but reason number one being the your adversary is being proactive so you need to be doing too but um yeah working on those cases um it’s definitely an eye openener um I like working on those cases um it’s very intense it’s very it’s very very intense and those cases are generally uh a lot of like contract disputes and stuff like that usually complete blood bath two companies fighting over money and one company alleging the other company screwed them, right? Essentially screwed them over. Um, it’s it’s pretty interesting to to because it’s not because we work on so many catastrophic injury and death cases. It’s it’s a very different ball game working on the corporate stuff.
[36:52] Steve I think what what else also interesting on that side is you have the client very very interactive with the client, right? How many times have we had the client who is the plaintiff in the case sitting in the room with us either during discussions or during the focus groups and stuff and offering up that feedback which we don’t always necessarily see on the defense side too which I think adds another layer layer of you better have your stuff together and be prepared because you have now the paying client in the room watching and making sure that you’re doing the things that are right in order to make sure that they are successful in the litigation.
[37:25] Bill Yeah. All right, let’s go to the final chapter here. Um it’s a real true um trial/jury selection stuff. What did you learn this year when it came to that? Uh I know that’s probably the most stressful thing that that you do. I know that um um it’s uh you know jury selection and we mean so this is a combination of us helping prepare a more psychologically angled voir dire script, consulting on opening statement construction and then um providing uh juror profiles for jury selection and then sometimes um actually going to the courtroom uh to assist. First question is um and again we’re not bragging here but we’re we’re we’re it’s a good problem to have. We are extraordinarily busy and so how many calls do we get in 2025 like hey can you help pick a jury next week?
[38:26] Steve A lot.
[38:27] Bill And what’s the answer?
[38:28] Steve No. No. No we can’t.
[38:31] Bill You can’t do that. But talk about before we talk about your experience with juror—talk about what we can. So if that was the case, you have a trial in a week or two weeks, you can now we don’t just say no, goodbye and hang up. There are other things that we can do particularly um with the voir dire design and opening statement. Talk a little bit about how we can still help on jury selection without necessarily being there and about how that that has a lot of value.
[38:59] Steve Yeah, I mean ultim— what we what we do is take whatever information that you may have, whether it’s any sort of, you know, prior jury research if you’ve done it or any documents that you have, you know, and kind of use that to help build the shell of a voir dire script. Plus, we kind of have the one that, you know, talking about the disruptive voir dire.
[39:21] Bill Disruptive, very disruptive.
[39:22] Steve Yeah. Adding those in there. The other thing we can do is assist with a little bit, you know, with with kind of the juror psychology. What jurors to be looking for and then also helping from the opening statements perspective too of of how to frame your narrative to to give you a better chance at making sure that the ideas and your arguments are sticking with the jurors. So, those are the things that we can do. We can also do uh social media research. I know that’s one of the things we’ve been doing too, even when we can’t be—
[39:50] Bill That’s tricky.
[39:51] Steve On site is getting the list of the jurors and then being able to do some social media research to kind of help fill those gaps about, you know, what we’re seeing on social media to give you a better idea of who’s pro-plaintiff and who may be pro-defense jurors.
[40:05] Bill Yeah. So, okay. So, if you’re a jury consultant and you go and you go into the courtroom and the voir dire is poor, the opening statement does not have the right organization construction narrative regardless of your talent as a jury consultant. Like how much can you really do in that circumstance?
[40:32] Steve Not much.
[40:33] Bill Not much. And everybody, that’s why everybody’s always I want one there. First, I I think and I have no problem saying this on the podcast. I’m gonna say it, Steve. I’m dropping the bomb.
[40:41] Steve I know it’s coming.
[40:42] Bill You want me to be your scapegoat? Yeah, because you know you’re going to lose. You’re like, “Oh, if I get a jury consultant, I can blame them.” Yeah. Nice try. Nice try. No, we’re not doing that. Um, unfortunately I think I think that does represent some of the people that call us is I want a jury consultant there so if I do get my ass handed to me I I can defer some of the blame and we’re we’re not playing that game. I’m sorry. That’s why we only do jury selection in certain scenarios. Uh, usually being you have to do some jury research because you have to do jury research to get the valid and reliable juror profile. Right? So, you’re looking for a—So if you’re a defense attorney, you want to know who pro-plaintiff jurors are, who high damages jurors are. There’s only one way to get that, right? There’s no generic, right? How many cases have we worked on where we knew we knew from the research minorities actually helped us, right? Whereas if you asked anybody generically, well, what do we oh just stay away from minorities? That’s not true, right? Or it’s a public Republican Democrat thing. It’s all it’s all BS and it’s stupid. Um, but we’re not just going to go show up, hey, we don’t have the time, but not just showing up picking juries for the sake of it. You have to have some foundational um data uh to make some those decisions on because otherwise you’re just blindly throwing darts at a wall, right?
[42:07] Steve Yeah. I think some of the the most success that we’ve had, well, I mean, a large portion of the success that we’ve had when we pick juries has been cases that we’ve worked on, whether we mocked them or we did a focus group on them, we did a case assessment panel on them because it helps because the voir dire questions, if you just sent me the information versus what I know jurors are going to say that it resonates, it’s going to be two different ways I’m going to write the questions because I know pro-plaintiff jurors are going to say certain things based upon the case facts. Pro-defense jurors are going to say certain things based upon the case facts. Well, then I can write a question in a way that elicits one of those responses. And when I hear that response, I know, all right, based upon the research, this person’s going to probably go this way versus that way versus just like you said, cold trying to say, well, give me the questions that you use normally in a case. We build our voir dire case specific. It’s not just here’s here’s my script for said case. It’s it’s different. It’s going to vary dependent on the case facts and the venue and all of a lot of different factors that you can’t just all of a sudden say here’s your here’s your script.
[43:07] Bill Yeah. So, um as we wrap this up in this uh year end uh review, what I guess what advice would you give if if trial is imminent? What advice uh would would would you give attorneys? I I I know the one thing I would say is if you’re if you’re writing your opening statement and you’re starting that process a week before a trial, that ain’t that ain’t that ain’t going to cut it. That’s got to be done way earlier because it’s going to to get a really good opening, it’s got to go through multiple iterations.
[43:44] Steve Yeah. Uh one of the things we haven’t even talked about really and I don’t know how much you we’ve talked about it on the podcast is these opening statement voir dire.
[43:51] Bill Yeah. Let’s let’s let’s talk about that because that has come up on the podcast but not to the extent it needs to because we’ve been so busy with everything else but this is a new service that we have. Steve, why don’t you talk about it because this is exactly we know the plaintiff bar is doing this and they’re very wise um to do this but so many um there’s a lot of assumptions on opening statements that they that they’re going to work. They’re understandable. They’re not too long. They have the right narrative. And this whole like, you know, practicing in front of your office mates or your your admin staff or even worse like yet you get all your family members together and do your opening and they’re all like, “Yeah, great job.” Um, we have a more empirical way to test that when you talk about that.
[44:34] Steve Yeah, we we do the research and and you know, that’s much like we would do with with the online panel where we get, you know, jurors from the venire on there and we kind of lift the veil, right? Hey, we’re we’re on the defense side. We’re going to be providing and presenting you with the opening statements and then going through the opening statements and then talking to the jurors afterwards and say, you know, what what did you understand? What didn’t you understand? How was the length? How was the pace?
[44:56] Bill Yeah, the demonstrative we used is too complicated and you’d be shocked how much they they don’t understand and then you can make you can make the the changes and the edits you need to make. So when you get to the real jury, in other words, it’s similar—it’s it’s kind of like witness. You want the witness to make all the mistakes in the training. So when they go to dep or trial, they’re going to shine, right? Isn’t this the same thing here?
[45:22] Steve Yeah. I mean, you you want you want the jurors to say, “I don’t understand it. I don’t get that.” And then you can even ask them—
[45:26] Bill Why not? What What is it about it? Oh, well, you’re you know, your your timeline’s too busy. I can’t I can’t follow it. Or your color scheme sucks, right? Or the way you explain something, I I it just it went way over my head.
[45:38] Steve Yeah. And that’s one of the other values too of having that interactive dialogue with them and say, “What if I did it this way? What if I did it that way?” “No, I wouldn’t do it that way. I would do it this way.” And then just taking all that feedback from—
[45:48] Bill They’ll tell you.
[45:49] Steve Yeah. They’ll be brutally honest with you and and tell you about it.
[45:55] Bill Yeah.
[45:56] Steve So that’s one. And then from the voir dire perspective, you know, we have we I think it’s important to bring up is the way we we write questions. The setup. We’ve talked before on the podcast.
[46:04] Bill That’s the key. The setup and no one knows the damn setup.
[46:08] Steve Yeah. And they need to practice that.
[46:11] Bill Yes.
[46:12] Steve So that’s another thing too. How is the setup? Are they nailing the setup? Does it make sense? And then talking to the jurors, did that question make sense? Because how many times you and I have seen where we sit in court and the question gets asked and then you just see blank stares across the jurors.
[46:24] Bill Yeah. No one raised their hand, no one said anything. It’s because because it’s a [__] question and you didn’t set it up the right way. So no one’s getting into it. There’s certain things I’ I’ve done how many podcasts on that topic?
[46:35] Steve Yeah.
[46:36] Bill But you could, but the these kind of mini these are like two hours, right? Where you can practice some of these voir dire techniques. Then we explain to the jury like here’s what the case is about and you kind of give them a summary of the plaintiff side of the case. Now you’re going to hear the defense response to that and then practice your opening. I mean, imagine if you were in trial and you could give your opening statement and then right afterwards look at the jury and be like, “What do you you know, what do you think? Did you understand?” Right? You can’t do that at a real trial, but in mock jury research, you can. I think that’s something I think this is gonna explode in popularity. In fact, if if you could only do one thing, right? You could only—So, you’re okay. So, you’re an attorney, plaintiff or defense, right? And your client said like, I’ll give you $15,000. That’s all you can spend for, you know, whatever. You have a cheap client and you could do one thing before your trial that may be the thing that you pick. I mean that that’s pretty close, right?
[47:38] Steve I mean we know that opening statements the importance of opening statements.
[47:42] Bill Massive. Massive. And if you had if you if you had to do if you you practice from the voir dire to the opening I think uh now I don’t think that’s nearly enough because if your case sucks well and you don’t have your juror profile but I think that um so many uh opening statements would be better when actually practiced with a group of mock jurors as opposed to the admin staff at the uh at the law firm.
[48:10] Steve Agree 100%.
[48:11] Bill All right. Well, happy uh 2026 everybody. Uh thank you. So—Oh, we have to they I’ll let you give the speech. I gave it during the last podcast. They have to—No one No one—We need more reviews. We’ve got some but not nearly enough. Even if they just give us a one through five. I don’t know how these reviews work. Yeah, leave a review.
[48:32] Steve Make sure like and subscribe on YouTube.
[48:33] Bill Like and subscribe. There you go.
[48:34] Steve And then also leave five star reviews um on Spotify, Apple.
[48:39] Bill Unless you hate us and then you can leave your [__] review. That happens.
[48:43] Steve Yeah, preferably five stars. But if you’re going to give us less, blame it on Bill, make sure you—
[48:48] Bill Yeah. Make it make sure like who’s getting the five star and who’s getting the the one star. You can you can’t split your stars. I I guess in your commentary you could.
[48:58] Steve Yeah. Well, make sure you do that. Um I’m looking forward to 2026. You know, we kind of talked about how all of the things that we saw this year made it sound like it was doom and gloom, but I think 2025 was was a really good year as far as what we’ve seen out of clients, what we’ve seen out of the defense bar, what we’ve seen, how things have moved to earlier research and that. So, I think it’s all good. I’m looking forward to 2026 continuing that and moving the goalpost a little bit further back so that people are getting involved sooner. But, I think it’s it’s it’s trending in the right direction that I feel good about it.
[49:28] Bill And you are very close to uh presenting part two of our uh anger data. We’re going to save that for—that may take a couple podcasts.
[49:38] Steve Yeah.
[48:38] Bill Uh it’s really really complicated, but um um I mean how many jurors do we have data points on at this point?
[49:47] Steve I got to remember—it’s in the several hundred. I think we’re pushing, you know, up into the thousands.
[49:53] Bill Into the thousands. Yeah, it’s a couple thousand. So we have a lot of data that that has been uh analyzed. It’s really really complicated, but we uh this whole juror anger thing is kind of out of control. Uh obviously it does play its role, but I think there’s a lot of misconceptions there. We want to give every—you need to people need to understand the role of juror anger and uh they don’t uh they’re making a lot of assumptions. We have those answers. We will bring you that and a and a new paper uh on this um in 2026. So, all right, appreciate everybody.
[50:28] Steve Appreciate the listeners. As always, reach out to Bill or myself if you have any questions. Uh we will see you on the next edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences.
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