Mike Bassett, Trial Lawyer and Managing Partner at The Bassett Firm, joins Steve Wood, Ph.D. and Bill Kanasky, Jr., Ph.D. to commemorate the 300th episode of The Litigation Psychology Podcast and discuss a wide range of topics about managing litigation and how things have evolved over the years. Mike shares the benefits he and his firm realize from conducting early jury research and how these early focus groups guide discovery and influence mediation. Steve, Bill, and Mike talk about the importance of validity in how jury research is conducted, the impact of confirmation bias on the legal team, and how clients need to view jury research as an investment, not simply an expense. The group also talk about attorney recruitment, attorney retention and the benefits of using Culture Index for hiring and team management. Lastly, they discuss the use of AI in legal and the criticality of briefer and tighter opening statements in today’s world of short attention spans.
Full Episode Transcript
[0:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky with my co-host Dr. Steve Wood, and this is episode number 300. Steve, what do you think? It’s been a lot of work over 5 years.
[0:34] Steve Yeah, I’m I’m happy and surprised we made it to 300, but here we are.
[0:43] Bill Here we are. Uh I checked the YouTube channel subscriptions this morning. 22,000.
[0:48] Steve Wow, that’s awesome.
[0:49] Bill Yeah. So, first I think I want to um first of all, I want to thank you um for all the work that you’ve put into the podcast. I want to thank um uh the people on our side kind of behind the curtain uh that have that have helped us. Uh they they know who they are um by making uh uh making this uh the real deal. Uh I want to thank uh what a great audience, right? This podcast is not for everybody, Steve, right?
We we we get a little hate mail here and there. Um but we’ve had uh you know really wonderful feedback uh some fantastic guests, right? And so, um, uh, I think we’re just going to keep plowing forward, pushing, uh, pushing the podcast with with a mix of, uh, neuroscience, social psychology, um, my ranting about everyday life, and, uh, maybe some moaning about our sports teams. I I think I think we’ve found the formula.
[1:49] Steve Yeah, definitely going to be after the recent basketball game, there’s definitely going to be about our sports teams.
[1:56] Bill Yeah. Well, we may have to cover that at the at the end in in a rant. Um, ouch. Right. But episode number 300. Yeah. Audience, thank you. Uh we appreciate it. Um um having a lot of fun with this. Going to keep it rolling. Episode 300, we thought about, you know, who should we bring on for episode 300 and uh it was a pretty we made that decision in in under 10 seconds. And that’s our guest today who’s been on the podcast uh a few times. uh work with this uh phenomenal trial attorney um very very often. Uh I find him to be a very gifted trial attorney. Uh he’s also a very dear friend and a wonderful human being. Mr. Mike Bassett. Mike, thanks for being on episode number 300.
[2:40] Mike Gentlemen, thank you. And let the truth be told, there were seven other people you asked. They all said no and I said yes.
[2:45] Bill Well, there was, there was nine. But uh thankfully uh you were available now. For those listening on Apple and Spotify and iHeart Radio. You can’t see this people on YouTube going to get like you got to run to YouTube right now if you’re listening on Spotify. Um and I’m not going to get any credit for this. Uh but but Mike, we have to describe your uh your physical um appearance. You your head is as smooth and shiny as mine. How is this how is this working out for you? I’m sure like you’re probably it’s like like women are probably all over you. People are complimenting you. You’re probably people probably think you look like me. They’re probably mistaking if you and I are at a conference together. They may mistake us.
[3:35] Mike So that’ll never happen. And I love your self-confidence.
[3:41] Bill You like that?
[3:42] Mike But you know what? I got to the point where I’m trying to be as minimalist and everything that I can in my life and I’m trying to eliminate friction and going bald helps. The fact that people say, “Oh, Kanasky is bald, too.” Sort of pisses me off, but it’s something I live with. It’s a cross that I bear, Bill.
[3:55] Bill I’m just going to share a secret, right? Okay. I’m going to share a couple secrets with you, Mike, with with that. Number one, you need really good shaving cream. You can’t go cheap on shaving cream. Not with your head. Because, as you probably have figured this out, if you cut your head while shaving, you’re you’re going to bleed like a pig for the rest of the day. It’s not good. Number one. Number two, the Gillette Mach 3 is the only way to go. I’m just throwing that out there.
[4:26] Mike See, I I use Harry’s razors. Love them.
[4:30] Bill Okay. Glad that you put in—See, there’s two potential sponsors, Steve. Now, Steve, when are you gonna—Now, here’s the key. When is Dr. Wood going to join the club? I don’t think he’s joining
[4:38] Mike I would not keep it, bro.
[4:39] Bill He’s got too much.
[4:40] Steve I’m not joining the club anytime soon.
[4:42] Bill He’s got too much going for him. Geez. Gosh. Okay. Well, we got the uh I guess that counts as one of the rants uh today as far as haircuts. So, Mike, several things to talk about. Boy. Um you know, since we have since we met Mike, which we we met um kind of like right as like right as the COVID thing, you know, was going on. And um you know we’ve uh become good friends. We have worked together uh your group and our group have worked uh together a ton. My how things have have changed right in in in the last five years now I want to discuss your philosophy on things because um things things have changed and I know that something you always talked about that um I think at a time maybe wasn’t practical or realistic or there were some philosophical um issues but about assessing your cases um at assessing them at the jury level. That’s key. Early by doing things like early case assessments, early focus groups as opposed to kind of you, you know, the traditional model that’s been there forever is the oh my gosh, um you know, mediation has failed. So now we need to start figuring out what jurors think about our our case. Now, let’s be honest, the plaintiff bar has been way ahead on this. They figured out, wait a sec, why why am I waiting until 90 days before trial to figure out what a jury—if I figure out what a jury thinks well before mediation that puts me in a pretty uh good position. So can you describe your experience particularly with us um you know doing early case assessment what type of what types of so you’re talking to an audience they’re saying many of them have have not done this yet right the types of information uh that you get how it maybe uh impacts the way you see your case importantly how it impacts the way you explain to your client what your true strengths and weaknesses.
[6:42] Mike Sure. So, at an outset, I think that the plaintiff’s bar, no, I know that the plaintiff’s bar has done exactly what you said, and they are light years ahead of us. And that’s something I’m going to come back and talk about. Information is power. And I think the more information we have, the more power we have and the ability to make better decisions. So, I’m a huge fan of early focus groups, jury research. Call them what you like. And here’s why.
First, they tell us what other folks think about our cases. Folks, that may be representative of a jury panel. Because frankly, Bill, what I think about a case and what an adjuster thinks about a case and what a client thinks about a case may be a data point, but those people will not be sitting on a jury. They simply will not. Next, they tell us what evidence that they, the focus group participants, thinks are important that we may dismiss. Oh, I’ve done truck—I’ve done 150 of these trucking cases and this issue is never an issue. I’m not going to even talk about it. Well, you do that at your own peril.
Next, they tell us the things that the focus group finds irrelevant that we think are just so critical to the case. We believe that the plaintiff speeding is just what is going to win us this case. And a focus group says, “Anybody that travels that stretch of highway knows if you’re not going 85 miles an hour, you’re going to get run over.” Well, you know what? I would rather learn that now than when I take a big verdict.
Next to last, they tell us the themes, the themes that are going to resonate when we start prepping our driver, when I depose the plaintiff, when I’m hiring experts, when I pick a jury, and when I try the case. It starts there and weaves its way all the way through.
And finally, it tells us where as a defense team we need to focus our energies because frankly, Bill, sometimes we breathe our own exhaust and I may get super heated on an issue and go down a rabbit hole that not only doesn’t move the case forward, Bill, but really just wastes a lot of money.
[8:51] Bill Yeah, it could be a very expensive uh rabbit hole. So, let me ask you some follow-up questions on that. And Steve, I have a couple questions for you. Um, so getting information early now again, Steve and I have been screaming about this for a long time. Uh, today it’s a little bit different. The messages coming like so we give speeches and talk to clients, they’re starting to kind of get it. But like if you had this discussion seven or eight years ago with the client, they’d look at you very, very funny because what they would say is, “Well, we’re going to learn about this case through the depositions.” And the depositions, ready for this, are the assessment tool of the case. And then I had to be saying like that’s idiotic because once you figure it out, it’s in the can. And now you can’t—there’s no reverse here. So, can you follow up a just a little bit more uh information on by getting this jury level information early? Here’s the key before depositions of not just your people but of plaintiffs of experts how that how that’s a really that’s that’s a real game changer.
[10:03] Mike You know, it really is. So, we have worked with you guys on cases where we believed that something our client did in blowing a stop sign was really going to be bad, was just not going to be good. We learned from doing the focus group, however, that that stretch of intersection could be very confusing because there were streets that had stop signs, streets that didn’t. Streets that had stop signs and streets that didn’t. So, while we thought something was going to just be the death of us, we were able to work that into our direct examination, not only of our driver, but also the plaintiff who lived there. But had I not focus grouped the case, Bill, I wouldn’t know that. And so, I agree with you. It helps shape discovery. Where do we want to focus? What do we want to uncover? And just as important, where are we going to take a hit? And we need to be ready to message that well.
[10:59] Bill Yeah. And and most now again, figuring out what jurors think has always I think always kind of been important to clients, but it’s about the timing, right? So, in other words, you could get the same information two months before trial, but your power to use it is a lot different two months before trial as opposed to maybe two months before depositions start. And then we’ll throw something else in there two months before the mediation where you can and I want you to talk about that because I know you’re also a mediator. Um how how this information can be used going into mediation to essentially make a case to a mediator.
[11:39] Mike Often times on the defense side, this is what you will hear. Oh, the plaintiffs did a focus group. You know what? It’s BS. They got a bunch of their friends together. They drank beer. They talked about the case, and they filled out a verdict form, and it was $111 million. That’s what you’ll hear from a lot of folks on the defense side which I think is shortsighted. So, as a defense lawyer, as a defense lawyer, one of the things I’m always asking a mediator is, hey, where am I missing this? This is what I’m seeing. Where am I missing this? And if a mediator is empowered to say, listen, they did a focus group on this and here are some of the clips. That’s information that helps me protect my client. Got it? My client.
If I’m the defense lawyer and I have focus grouped a case and the plaintiff’s actions were found to be a lot more significant than I thought, I’m going to let the mediator know that. So, he or she can go in the other room and say, “Listen, this is not Bassett talking.” They focus grouped this case and I, the mediator, want you to see how valid it was. How valid it was because as a mediator on catastrophic cases, Bill, which is what I deal with, the good plaintiff’s bar, 95% plus have focus grouped that case multiple times before mediation.
[13:01] Bill And let’s talk about validity, Steve. Um, and and we and we’ve—Yeah, you’re a scientist. If you—Yeah. No validity, no nothing, right? Um, can you talk about the importance of recruiting the right people for these projects? Because there are, now listen, there are some um, and we’ve heard these stories and I get it, but I think it’s overblown. We’ve heard about maybe some lazy, for lack of a better term, plaintiff attorneys that will say, you know, they’ll get all their legal secretaries together or get family members and kind of do a focus group with them. That’s scientifically lazy, but we know that the really good plaintiff attorneys do it uh the right way. Okay, let’s talk about the importance of having the right group and how that impacts your validity of your results.
[13:52] Steve Yeah, I think one of the things we definitely do is obviously we recruit to the venue. Um, and we go through a lot of steps and take a lot of time to vet jurors to make sure that we’re getting a a good swath of jurors so that we can get good information from them. Because ultimately the goal is, and Mike can speak to this too, is that to be able to look at the jurors when you’re doing these focus groups or mock trials, is to say, “That looks like my jury panel.” That looks like someone that I would have on the jury panel versus this doesn’t look anything close to what I would actually have. That juror would never make it past uh a cause challenge. There’s no way that that person would ever be on the panel because then obviously your data is going to be skewed because you’re getting faulty information. So, information is good, but bad information is going to set you down the wrong path.
[14:41] Bill Yeah. And then also since I mean you’re the social psychologist, let’s talk about confirmation bias. What Mike talked about was, you know, the main trap here, um, I think for any attorney, and, um, if you listen to any of the plaintiff attorney podcasts, they talk about this all the time. They say, they don’t call it confirmation bias. They describe it. They say, and Mike, you’re probably going to agree. It’s like I am the worst judge of my own case because I cannot see it objectively which is why I do the focus group because my brain is littered with confirmation bias, right?
[15:14] Mike Well, I’m an advocate. I’m not a scientist.
[15:16] Bill Yeah, that’s the whole thing. Steve, can you talk about kind of what confirmation bias is and how um your brain will essentially prevent you from seeing your own case objectively because that’s what evolution—That’s what poor evolution did to our brains.
[15:33] Steve Yeah. We—I mean we constantly on when you’re working through the case, you have your perspectives, you have your views, and what you’re trying to do is get information that will support that belief. And when you get counter information to that, then you just make excuses. You do mental gymnastics in order to downplay the importance of it. So, what ends up happening is you create a blind spot in your own case because it doesn’t tell you what you want it to tell you, so you ignore it. And I can’t tell you how many times we’ve seen this before, right, Bill, that we’ve had to have conversations with clients to say, remember, the goal of the focus group or the goal of the mock trial is to gain information and to find your weaknesses and your blind spots. It’s not to win. So don’t try to argue with the jurors when they disagree with your points. You have to listen to them and take it whether you agree with it or not. It’s information from from the jurors who are going to be deciding your case.
[16:26] Bill And and we’ve seen this and and see Mike Mike Mike is smart, okay? And Mike gets it. Mike listens to jurors. But but Steve, how many times have we’ve done a focus group, and you’ll have an attorney or the client or both hear the jury discuss the weaknesses of their case and blow it off like, “Ah, these people are crazy.”
[16:47] Steve Yeah.
[16:48] Bill Like they still refuse, right? I mean, happens all the time.
[16:53] Steve Yeah. Mike, you would never do that though.
[16:56] Mike Uh, you know what? Now I I will tell you I have listened to focus groups and said out loud these people are high, but you then think you know what this is something we need to think about because here is here and you’re going to hear me use this phrase a couple times today. I’m going to say the quiet part out loud. If you are defending these catastrophic accident cases, whether they’re med mal, trucking, or whatever product liability, and you’re the client and I’m defending you, do you want me going into this fight with one hand tied behind my back? Because if you do, don’t let me do a focus group.
You know, you say in this report, what do you think a jury’s going to do? Well, I mean, yeah, I’m I may have tried almost 200 cases, but this jury, I don’t know what they’re going to do. I think I think in other cases they’ve done this but that’s not scientifically valid. That’s anecdotal. I think it’s dangerous.
[17:50] Bill Yeah. So, Mike, talk about um you know every every defense attorney has multiple clients and multiple different those are all unique relationships and um kind of where we’re at now. You know, I know some of your clients that we share have given you this kind of proactive green light of, hey, be aggressive, be aggressive early because they have figured out like you said, not only is information power, early information because remember, you can have late information, but you lose the power, right? So, it’s early information where you have some clients that kind of do it the old way that are more reactive. How does that kind of again the the kind of one arm behind your back? How does that kind of again like you either get enhanced or impaired by the amount of weaponry that you have? And that’s going to differ between your clients and at least has to surprise some difficult discussions with clients.
[18:50] Mike You know, a few of the carriers and institutional clients we work with have embraced and understand how investing, this is the word, investing in an early aggressive workup benefits everybody. Because here’s the deal, it leads to better settlements. It leads to better settlements. It leads to better outcomes for clients. Okay? I may be working for an insurance carrier, but my client is the motor carrier, and I want better outcomes for them. And it allows early recognition, Bill, of bad cases.
[19:22] Bill Yeah.
[19:23] Mike That need to settle early. And and and you’ve I know people on your podcast have said this before and I’ll say it again. We as a defense bar need to be more aggressive about cases that we want to try. And the only way we can do that is to have a good idea of what the case is about. So, if it’s a bad case, let’s figure out what it is and let’s get rid of it as early as we can. And if it’s a case we’re want—we’re going to want to try, then let’s work it up for trial. But that’s an investment, not an expense item. Okay.
Um, when we do these early focus groups, early jury assessment, getting in witness coaches, it benefits everybody because when I do a focus group, I’ve got to lock into that case, Bill, and I’ve got to look at it almost like I getting ready for a mini trial. I’ve got to put together my evidence. I’ve got to distill it down. What do I want to show a focus group jury? What do I want to do? And then when I get that data, it’s going to give me a road map for my written discovery because I’m going to do it early, right? Pre-litigation. I’ll say it again, 90 days, 60 days after I get a file. Pre-litigation, it’s going to help me with the depositions I want to take. Who do I want to depose and where do I want to focus? Which experts to hire?
I may think that this is a big issue on a case, and a mock jury’s like, “What? No. No. That’s nothing. Don’t do that.” So, I’ve just saved I’ve just saved an insurance company $75,000 because we don’t need to hire a forensic meteorologist because the focus group jury didn’t think about it. Which documents I need to play up? You know, I think it comes down to every case at the end. If you’re a trial lawyer, you’re you’re hammering three things, three documents in closing. Let’s figure out what those are and let’s also figure out the three that pose us the greatest risk and how we are going to embrace those early to take out the sting.
Um and and I’m going to say this again another quiet part out loud. You’re a huge insurance company and you hire me to try a case and it’s just a horrible case. And there’s a section, there’s a section in the report that says, “What do you think a jury is going to think our greatest strengths and weaknesses are?” Because that’s in almost every status report I have.
[21:41] Bill Every one of them. And boy, is that an unfair question.
[21:44] Mike Well, I don’t, you know, first off, I don’t know. I can tell you what I think, but I ain’t sitting on your jury. And Mr. and Mr. Claims professional, you’re not sitting on the jury. Or Mr. and Mrs. client with a huge self-insured retention, you’re not sitting on the jury. So really, the answer is I don’t know. I don’t know. But an early focus group allows us to have data to help drive better decisions.
[22:13] Bill So, Mike, when when you explain this to say a client that does it the old way or maybe say you have a new client and they they give you kind of the prototypical response to this, which is, well, Mike, just let’s just try to settle this at mediation and then if mediation fails, I’ll give you all these toys to to play with. Let’s do that. What is your, what is your response to that?
[22:36] Mike I use the analogy of building a house. If you are building a house, the best time to figure out where you want all the plumbing is before you lay the foundation, right? You want seven bathrooms, fine. Let’s do it. Do the blueprints, then we can lay the foundation. If you do it the other way, and I get it, and I recognize and you have to acknowledge with people, Bill and Steve, I understand the old model was, let’s try to settle a case in mediation. If we’re 60 days out and we’re going to trial, it’s all hands on deck and we are going to spend a ton of money gathering data that we can do nothing with. We can do nothing with. So, I say, do you want to just dig up the whole foundation because you’re not going to be able to. Let me, let us get this information early to position us for a better outcome. That I think is what I try to explain to folks.
[23:26] Bill And Steve, when you’ve been dragged, and we talked about this when we were in Chapel Hill podcast episode, you’ve been dragged into several cases very late and kind of like from the jury consultant perspective when you’re doing a focus group or a mock trial a month or two before trial, how the there’s there’s limits on the data the data’s usability as opposed to if you did it early and then you repeated it over the timeline. By the way, like the plaintiff attorneys do it, how that data is now it’s more valid. It’s more reliable in that sense.
[24:08] Steve Yeah. And I and we talked on that last podcast about what that being one of the things that frustrates me a little bit because we obviously when we get involved, we want to help our clients, and we want to make sure that they have a good outcome. But nothing’s worse than when a juror says, “Hey, uh, I’d really like to see if they had this report or I’d really like to see if they had this evidence.” And then we go to the attorneys and the attorney’s like, either A, it doesn’t exist, or B, it’s too late for us to be able to get it. But we know a lot of jurors said, “I would need this to clarify an issue. I would need this to help me make a decision.” But if you’re that late in the game, it really makes your life difficult to try to be able to even get that in because you just don’t have the ability because discovery is closed.
[24:49] Bill Yeah. So, Mike, let’s shift to two hot button topics. These are hot button topics that come up over and over and over again. And again, it’s like nobody—Well, everybody wants to talk about the second topic. Let’s start with the first topic, which um it’s a problem. It’s been a problem. It continues to be a problem. And I still haven’t seen much of a solution for this problem, but this never- ending battle of young attorney both recruitment and probably even more importantly retention. Um it is hitting a lot of defense firms across the country. We hear it constantly everywhere we go. It’s extraordinarily frustrating um to senior partners trying to you know grow a firm and and create a team and build a culture when you know what is— and this is exactly what it is. Civil defense litigation is college sports now. You got the transfer portal. Everybody’s just bouncing around. There’s no consistency. You’re a fan and you’re like, “Oh my gosh, you know, we only had this person for a year and now they’ve just, you know, they’ve transferred to Illinois.” It’s like, “Why are they going to Illinois?” And you’re trying to recruit a team and then keep your team and it’s it’s created a big mess in college sports. I see a lot of parallels this uh with this, Mike, and I know that you’ve you’ve been through some of this um as as a law firm owner. Um how have you dealt with it? What’s your philosophy uh on this? Because it is abs—it’s absolutely a problem that I’m not sure if it’s going away anytime soon.
[26:24] Mike Well, it’s a never-ending battle and I don’t know if it’s going to be going away. So, here are three things that we are doing every day to try and push back on this.
First, we are really investing in hiring law clerks and interns, maybe lawyers out of their first year of law school in their second and third year, and legal interns in college who have graduated and are going to law school. And we have them work for us for one or two years. So, you’re a law clerk. You work for us your second and third year, and then you graduate and we make you a job offer. And if you accept, you are light years ahead, Bill, because you know our systems, you know who we are, and you know how we operate versus somebody that has never worked for us and comes in, they are far behind.
[27:04] Bill Yeah.
[27:05] Mike Um, second, we use culture index and you guys turned us on to this. This is an amazing tool that we use where we have gone out to our superstar employees, given them the culture index and you know what? Now, when you apply for our at our firm, I don’t care what position, you have to take the culture index. And we turn a lot of people away based solely on culture index. And I believe we’re making money every time we do it.
[27:29] Bill As do we.
[27:31] Mike Because I know that if you want to be a lawyer that does this, there’s a certain characteristic that does well. And it’s not how you interview, it’s not where you went to college, it’s not—it’s how are you going to work these files. So, culture index has been a fantastic investment for us.
And finally, we’re offering flex pay to new lawyers. We all visit with new lawyers and say, “Listen, you want to come work here? How much do you want to work? What are your billable hours? What do you feel comfortable doing?” And I’ll say, “Okay, that’s X annualized. This is what we’ll pay you. You want to work more, you can make more.” And that seems to be very appealing to a lot of folks because the old way of doing it, the old way of doing it, Bill and Steve, you’ve got to bill 2,000 or 2,200 hours a year. Dude, that’s a non-starter for people. It’s a non-starter. But but make no mistake, the struggle is real. Like you, I talk to lawyers all over the country every day. And if you—It’s funny, the qu—the conversation goes like this. Bill, how you doing? What’s going on? Um, you know, what are you facing right now? 10 out of 10. God, we just can’t get enough lawyers.
[28:43] Bill Yeah, it’s everywhere.
[28:45] Mike It’s everywhere. Everywhere. So, those are three things we are trying to do to push back against that.
[28:51] Bill Steve, can you talk a little bit about because because we use as well um cultural index. It’s it’s not psychological testing per se, but um it’s pretty much um um um identifying key characteristics. uh we’ll use that term very uh uh generally uh which uh kind of helps you find employees that will fit your culture and maybe even fit certain roles, right?
[29:17] Steve Yeah. I mean it it identifies kind of where your strengths not necessarily where your weaknesses are, but more like your personality profile. So, like for example, I’m more of the I want it now and it better be perfect type guy.
[29:28] Bill Really? That’s you?
[29:29] Steve That’s me.
[29:30] Bill That’s the reputation you have at CSI, correct.
[29:32] Steve Uh but the the point being is right is when you know that and and your yours is a little bit different. So, it it allows you to realize how your employees interact. It allows you to understand and I can tell you that once I’ve kind of learned different employees kind of styles. It’s helped me to be able to interact with them than I would a little bit differently just because you know where this person’s coming from uh versus where you’re coming from.
[30:00] Bill And you need um you need diversity of personalities to function as a firm, right, Mike? Like I said, like here’s the here’s the wrong way to do it, which by the way, a lot of people do this. Like, so I’m sure Mike Bassett could go, “Okay, um we need to go find 15 Michael Jordans. I want 15 rockstar superstars. They’re all the same heavy producers, blah blah.” Well, number one, that’s really unrealistic. Number two, by fitting people into different roles with different character—Like for example, like like Steve is extraordinarily detail-driven, right? Me, I I can’t read the first if I get to paragraph three on a report, congratulations. I can’t do it, right? And so, Steve and I are like extraordinarily different. But when you combine our two, right, two sets of characteristics, right? What we can do as a team and then you start multiplying that with other people, you really have all your other bases covered. So, Mike, you’re not look like there’s not some prototype, right, person you’re looking to match various characteristics to get the most out of everybody, but you certainly don’t want everybody being the same.
[31:09] Mike No, the the key is to get different people first. You’re not you wouldn’t want everybody the same. A law firm full of people like me would be an unmitigated disaster.
[31:18] Bill Yeah. You’d kill each other, backstabbing, drama, you name it.
[31:22] Mike Uh but yet it allows you to fit people into roles. And so, someone may interview and I’ll say, “You know what? They would really be good at this because that those characteristics, they’re very detail-driven or they’re very much a social person.” Or they lead front. I mean, they’re more of a a rain maker. I need to know that information. It’s worth every penny. Cannot recommend it enough.
[31:44] Bill Yeah. Absolutely important. So now let’s go to the let’s go to the hot button topic everybody wants to talk about. Um and this is certainly not going away. This is the future. Um law firm use of AI. Now here’s the problem with this topic, Mike. 99% of the stories you hear about law firm use of AI are negative. And one just happened yesterday again where an attorney files a motion and AI has cited cases that don’t exist and we’re like, “God, how many times do we get?” So, here’s the problem with AI um as I see it and I I use it every day and boy am I careful with it and I’m still learning.
Um number one, it is seductive. It’s seductive. And here’s the thing. Um, and I asked uh you can be very clever with AI. So I so AI like if you use Chat GPT or whatever you can ask it like hey I’ve been using you for the last year. It has a memory, Mike, and you can say tell me how I’m using you well tell me how I’m not using you so well and it’ll it’ll it’ll tell you right and so um what AI told me when I had this discussion last week about it essentially said I’m not your buddy. I’m not your friend. I’m not your colleague. Think of me as like a power tool in your garage. You got the best chainsaw in the neighborhood. Okay? And that’s what I am. But I think people have figured out, oh, this is replacing somebody where it’s it’s it’s actually it’s like a virtual colleague of mine. No, it’s not. And I think that’s where a lot of trouble occurs. Mike, what’s what’s the uh firm’s philosophy on how to use it, how not to use it, and maybe education because this is this is just moving so damn fast. How to kind of stay on top of it.
[33:40] Mike Sure. So, I’m going to start with a quote I heard uh at a conference and I had this person on my podcast who is a journalist and a lawyer who writes a lot about artificial intelligence. Artificial intelligence is like a very smart three-year-old that will look you in the eye and lie to you and just lie boldface because it wants to help. It wants to help. So, it will tell you things that are absolutely not true.
So how I’m going tell you how I use AI all the time. Some examples I have a case where I got in a bunch of counseling records and I thought this is interesting. So I went into the platform we use which is a uh has vaults in it and I uploaded the things and I said okay tell me create a chart for me of all of the symptoms this person did another column that says what were the treatment options and three things I need to be thinking about when I depose this person. Bam. Got it? Now that was a something I used to then report to the client. So, I’m using it that way.
Next, I get I get asked to draft letters of recommendation and stuff like that all the time. I can I can go to the platforms that we use, put in what I need, and in 38 seconds have a letter that’s 95% ready to go. I’m doing that. I use it all the time for generating ideas and themes. I’ll use it all the time. I used it for this podcast uh to get some of the thoughts that I had and some of the quotes I’m going to use at the end. I use it to generate ideas for cross and direct examination. It’s a starting point. It’s a starting point. One of the things that terrifies me is a blank page. I just gosh, where do I start? If I can use AI just to give me a starting place, it does great work.
Uh and then lastly, so there was a recent case that came out of Texas. It was a pretty big deal. I plugged it into our platform and said, “Okay, you’re a very experienced civil defense lawyer. This is what you do. draft a two-page letter that you can send insurance companies and clients about this case.” You know, 14 seconds later, I had something that was 95% done. Now, when I sent it out and you got a copy of it, Bill, I said, “Here’s a summary of this case that I use with the assistance of AI.” But the point is, I didn’t give any legal advice, and I didn’t cite to any other cases. So, at our firm, our policy is you cannot send anything to a client, a carrier or file anything with the court unless you have personally checked every citation that you are given. Now we use Lexus uh protege and it you know obviously is a Lexus product, but we still require our lawyers to go check those things and we are just non-negotiable about that.
[36:27] Bill It’s hard. I tell and and so Steve I um and Steve knows my family very very very well. So, my wife and I gave both of our sons because you know they both uh drive said listen here here is the family credit card. We ordered two extra from City Bank. You can use this for gas. You can use it for food or anything that involves an emergency. Those are the parameters. Okay. Okay. Three months goes by. Steve knows where this is going. Three months goes by and then I do a little I do a little audit of the credit card bill. Steve, you and I have talked about this excessively.
Oh my gosh. I mean Oh. Oh, I I like I lost my [ __ ] guys. I lost my [ __ ] right? It’s the—It’s so seductive and they can’t help themselves. Steve, talk about the psychology. I because I think the psychology of how powerful AI is. It’s really hard to be disciplined to use it the right way, right? Kind of like the kind of like the teenager or the 24-year-old with the credit card, right? You know the parameters, but boy, it’s really hard to stay disciplined uh with that, can you talk a little little bit about how developing discipline with using such a tool is so important because you can misuse a a very powerful effective chainsaw, right?
[38:05] Steve Yeah. And I think one of the things is that all of us are are so busy nowadays is that you’re trying to look for ways to be efficient, but sometimes you can look for ways to cut corners and then and and all of a sudden first it’s kind of like what Mike says, I’m going to use it as a just to get me started. And then before you know it, it’s like, well, now I’m I’m getting comfortable with it and I’ll give it a little bit better programming, so maybe it’s going to give it better answers. And then you start to get more it becomes a crutch of sorts, right? Where it’s like, you know what, I can just use a Chat GPT or I can just use AI to do this and then before you know it, what started off as you get more comfortable with it becomes something that you’re just utilizing and then to Mike’s point, before you know it, you’re you’re writing briefs with citations in there that you just don’t have time to check and you’re like, I’m sure Chat GPT is going to be okay and then before you know it, you end up in hot water.
[38:56] Bill Yeah. And I think it’s hurting our critical thinking skills.
[38:59] Steve 100%. I think that’s one of my concerns is that people start to use it and rather than think themselves they they use Chat GPT and now the other thing that becomes an issue is the thoughts that are there on the paper are not thoughts that you’ve developed and now rather than actually learn to write and learn to articulate the points that you would have had to be forced to write in the paper you just let Chad GPT do it and then when someone presses you on it you can’t really articulate it because you’ve used that so much that you haven’t really learned what you’re actually saying because it’s because it’s putting it out for you.
[39:35] Mike Bill, funny story before we leave this one. So, we had the same talk with both of our sons. You know, the old use it to get gas. All of a sudden, look at my credit card. My sons are filling up their gas tanks every other day. I’m like, “What in the world are they doing?”
[39:48] Bill Same thing here. I’m going, “Wait, what?”
[39:50] Mike What happens is they find a grocery store, they find a a gas station that will sell them beer and ring it up as gas.
[39:58] Bill Yeah. I’m going, “Wait a second.” I’m going, “What?” Like, you went to 7-Eleven four times in one week. Yeah. And there because it doesn’t, it just gives you 7-Eleven cost. It doesn’t give you the itemized, right? And so, oh gosh, oh, I love it. Now, Steve, now listen, Dr. Wood is not there yet. In the next five years, Dr. Wood is learning this credit card lesson the hard way. Uh, right, Mike?
[40:24] Mike You know what? Get itemized receipts, Steve. itemized receipts.
[40:28] Bill Good luck with that, Steve.
[40:30] Steve I have had I have had my son come home before um with random—He brought home an ice bath, Bill. I don’t even know if I even told you this. He comes home with an ice bath and I was like, “Where’d you get that?” Well, I I used Apple Pay. Well, who told you you could do that? I mean, I just assumed that it would be okay.
[40:48] Bill Yeah. And that’s another danger of AI is that oftentimes months can go by before it blows up in your in your face. Mike, a little bit of a curveball question I added uh to our outline because this is something I’ve been posting a lot about on LinkedIn, have done uh other podcasts on this. Um and I again back to the plaintiff’s bar. We know there’s an active push in the plaintiff’s bar to be more concise, less is more. Um focusing on getting juror attention and not not doing things in a way that’s going to cognitively overload um jurors.
Can you talk about um your personal experience and quite frankly Mike the challenge the internal challenge of writing an opening statement that’s 20 minutes and razor sharp versus the one hour opening statement and the internal emotional challenge with being brief less is more razor sharp it never quite feels like enough, right? Um and so many attorneys and trust me I, one of the main things I do now is I am helping on opening statement critique construction to get it to where it needs to be. I’m really, I’m going tell you this not to pat my own back here. I am really freaking good at this. But the push back I get, Mike. Well, first of all, I always get a draft that’s like, whoa, like this is gonna take 45 minutes to an hour. And the response is emotionally is I got to fully defend the client. And my response is, well, no, you don’t. Because the purpose here is persuasion, right? We have to grab attention. We have to keep jurors engaged and that’s not gonna happen with a 57-minute opening, right Mike? But at the same time, right, internally you’re like, God, I really want to put it all out there because more is better. Because by the way, that is our society. Our society is more is better. The problem is that’s not how the juror brain works. Can you talk a little bit about that and how to how the self-discipline there is really important?
[43:05] Mike So cognitive overload is a real deal. And I think lawyers that understand that with jurors are a step ahead. Look at it this way. How many people do you know that sit and actually watch a TV and don’t look at their cell phone at the same time?
[43:18] Bill I did it last night and I I was going to shoot myself in the face after about 15 minutes. I—we watched Landman last night, my wife and I, and I left my phone upstairs and like I almost had a panic attack after seven minutes having it not next to me.
[43:35] Mike So, cognitive overload is real. It also makes me think of Stephen King’s line, kill your darlings, kill all your little darlings, which means go ahead and write the 55-minute opening, right? And then let’s trim it down because you’re right, less is more and what we used to think of an opening statement is no longer. What we used to think of a plaintiff’s deposition, Bill, is no longer. It’s just it’s not the way we do it. So, you come in hot. You get in, you get out, you sit down. Because here’s something that that I think is important. The jury needs to know that when I stand up at trial, they need to sit up because it’s not going to take long. I’m going to get in and get out. And they appreciate that a great deal. And it is difficult because you’re right. I mean, after I’ve been forced to write 87-page status reports on a case, and then come in and do a 10-minute opening on a death case. It’s scary.
[44:34] Bill Yeah.
[44:35] Mike But I think it’s the way to go. And you know the plaintiff’s lawyers and I know the plaintiff’s lawyers that are doing it and the results speak for themselves.
[44:42] Bill Yeah. I was um uh I was uh doom scrolling the other day and uh I don’t have the time to and I listen a lot of podcasts uh some legal, some some sports, some history, you know, you you name it. Um, I don’t have the time. You know, if you’ve listened to any of that goes on Joe Rogan, those podcasts are three-hour interviews. It’s like, who the hell has the time for this? So, typically I’m like looking for summaries if I see somebody interesting and um about two so I’m giving a speech uh on Thursday out west uh to a group of attorneys and one of the topics is I’m doing a two hour speech to break down this whole opening statement, the science behind it, the neuroscience behind it. Um, it’s one of my favorite speeches, but I I’m I uh I found this summary uh and then watched a portion of the video uh from Joe Rogan a couple weeks ago.
They had uh Ben Affleck and Matt Damon were on together and they they’re actors, but not everybody knows they’re also directors. They they um I mean they they wrote Good Will Hunting. They wrote it like a lot of people don’t know that. And they were on Rogan, Mike, and what they came out and said was now that people stream movies versus going to the movie theater. He goes, “The old way doesn’t work because you’re battling with their cell phone, you’re battling with their kids, you’re battling with their dog, you’re battling with their laptop.” And he said, they said the old like the three-act play, right, is it starts here, it goes here, and then act three is like where it’s all happens. And that’s how they would make movies. And he’s like, if you looked at a a movie budget, like you would spend 75% of your money in act three because that’s the big it’s all this suspense suspense. The big drama happens in act three.
He goes, now you can’t do that. You’re spending all your money in the first 15 minutes because if you don’t hook these people, they’re gone. And I found that I found that to be pretty interesting. And Steve, you and I have worked on a lot, you work on a lot of cases where you see like the like kind of the traditional storytelling model. It doesn’t it doesn’t work now. And people are—you know they’re it’s Tik Tok like you got like on a Tik Tok video you got like five seconds and if somebody’s not interesting, next, right? YouTube videos you got 10 seconds right you got to be using this early um time period to to set the hook and Steve you’ve seen this so many times where you see so many people falling into the old way of well I’m gonna work up to this kaboom, right? But what happens is people because of technology, I mean, they check they check out early if there’s nothing if there’s no motivation, incentive to stay there.
[47:39] Steve Yeah. And you, we’ve talked about the kaboom on many occasions, and you and I are big—
[47:43] Bill Kaboom. I like Kaboom.
[47:45] Steve Yeah. You and I are big movie buffs. We’ve talked about this before, right? Martin Scorsese does all of his kind of things at the very beginning that are essentially from the middle of the movie.
[47:51] Bill He was the first to do that.
[47:52] Steve Yeah, to grab your attention to make you sit up and start saying, “Gee, I want to understand now. You got my attention. I want to see how we got to this point.” So, I think you know, Mike, to that point, as I’m sure that’s how you approach things, too, when you do your openings is you got to grab their attention quickly, get them to understand and sit up and pay attention to you, and then you can kind of go back and work in your story, but you got to get their attention right from the jump.
[48:14] Bill But here, but here’s what they and again, I’m—Mike, I’m gonna say this in a very polite way. I’m not calling you old. I’m calling you experienced, okay? Before the technology what it was today, Mike, the old system worked because attention was different. You could get in front of a jury in 1987 and give a one-hour opening. You could you could do the three-act play with the drama. You could totally get away with that because the human brain was different then. Technology has physically changed the brain. And if you do it the old way, Mike, you’re gonna fall behind.
[48:50] Mike Right. I mean, you—people, and this is kind of some of my last thoughts we’ll get to. If you keep doing it the same way, you’re going to keep getting the same results.
[48:58] Bill Yeah, absolutely. So, let’s wrap this up, Mike. Um, again, I’m kind of gonna give you open floor. I’m sure that you have um some things to share with the audience um that that that you find important um being a defense attorney working on diff—several different types uh of cases. It’s not just trucking. We’ve worked on several, you know, wrongful death, premises liability stuff. Um what advice and wisdom? It’s 2026. I know that you try to be on the cutting edge of things. I know that about you. That’s important. I think you know what works. You know what doesn’t work. and you’re trying to you’re trying to evolve and be on the front end of of this. Um, what guidance, advice, information would you share with the audience based based on your experiences lately?
[49:52] Mike Well, it’s forward movement, but it’s with a lot of stumbles. So, uh, I’ve got three hot sports opinions I want to share with you that may or may not get people ruffled up.
First off, I I recently watched F1 with Brad Pitt. Great movie. So, I came up with two analogies for clients and insurance carriers who do not embrace the mentality of investing in early jury research. It’s like entering a Formula One race with a great driver but refusing to upgrade the engine.
[50:18] Bill Yeah.
[50:19] Mike Here’s another one. We’re racing against plaintiff’s lawyers who’ve got pit crews and data analytics and wind tunnels and the defense lawyers are being told, “Listen, drive carefully and if you use more than half a tank of gas, we’re not paying for it.”
[50:31] Bill Ouch. That’s that’s that’s stunningly effective, Mike.
[50:35] Mike Okay, so there’s my first hot sports opinion. Second, I think there needs to be a very real look at how much defense lawyers are being paid. How much defense lawyers are being paid. Why?
[50:46] Bill It’s a, it’s a big deal.
[50:47] Mike All, all firms, plaintiffs, defense firms are fishing out of the same pool of lawyers. There’s not law schools that graduate only plaintiffs lawyers. We’re all fishing out of the same deal. And if plaintiffs’ firms can offer young lawyers $175,000 base plus bonuses, okay, and that’s what’s going on, we simply cannot compete. Talent costs money. Talent costs money. And if you want better representation, help us retain and attract talent.
Okay? And my third one, and this is my big soap box, we as defense lawyers need to be better about sharing information. We absolutely suck at it, folks. It is not a zero-sum game. It is not a zero-sum game. You and I are fortunate enough to work, Bill and Steve, with some insurance companies who embrace that. If I have something that can help another lawyer, why wouldn’t I share it? Because here’s the deal. If I am so insecure about my practice that I won’t share an outline with you, that says a lot about me. Those are my three hot sports opinions.
[51:48] Bill I think those I think the racing one I I think that I think I think um I think that nailed it. And Mike, I want I want to be clear on something that you’ve been very helpful with. Uh several times a several times in 2025, Mike, how many times did I copy you on an email with four other attorneys all in different states saying, “Hey, my client’s got a problem. Like this this is what’s going on. I I want defense. I I want your opinions on how you would deal with this.” and I conclude you on the email and everybody replies. Now, it’s only five people and it’s five defense attorneys, but you all bring in your different uh perspectives. I that’s been really it’s almost like an informal roundtabling, right? I wish we all had the time to, hey, Mike, every Monday night, you know, you and I and Steve and we’re going to invite 10 other defense attorneys and we’re just going to roundtable. No one has time for that, right? But kind of a uh electronic round table is I send out here’s what’s going on. What’s your experience been with this? How have you seen this before? What worked? What’s not worked? Just having that alone um I think’s really really been uh uh exceptional. But you’re right. I don’t think um and I’m not I’m not really sure there’s a a solution uh to that.
[50:06] Mike Other than keep saying it at the top of my voice. Share information because if you don’t think the plaintiffs are sharing information, you’re a fool.
[53:15] Bill You’re right. All right, let’s wrap this up. Steve, um, again, uh, episode 300. I think this was a fantastic episode. A lot of fantastic, uh, information. I’ll kind of let you give the closing thoughts because you’ve, uh, you’ve put a lot of work into the podcast. You’ve had a lot of, uh, guests on and, um, wow, what a what what what a ride.
[3:42] Steve Yeah. No, like I said, I when we started doing this five years ago, I I wouldn’t have had expected that we were going to get to this point and have this many subscribers and this many listeners. So, it it’s been surreal uh to me to have it. We’ve had some great guests on. Like I said, we’ve covered a lot of different topics. We’re going to keep covering new topics and looking for different ways to to bring information to to the audience. But, you know, really appreciate the audience, appreciate the feedback that we’ve been getting. Uh, it’s it’s been fun. You know, obviously I get busy and and can’t get on here as much as I can, but it’s always fun to to get on and cut it up with with you and and a lot of the other guests. So, looking forward to 2026, which I already got some guests lined up to to come on. So, I’m looking forward to that.
[54:23] Bill We got we got great stuff. So, thank you so much, Mike. Thank you so much for being on the podcast, particularly episode number 300. Uh, keep doing what you’re doing. You’re doing a great job and we love we love working with you. Have a fantastic team uh at The Bassett Firm and to our audience thank you so much episode 300 we deeply appreciate it we’re going to keep this train rolling full speed ahead thank you for participating in this edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky. See ya.
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