Episode #75: Frequently Asked Questions

A special episode for the 75th edition of The Litigation Psychology Podcast. Dr. Bill Kanasky answers questions that have come in from podcast viewers and listeners. The questions asked and answered:

• Should I do my mock trial in the actual venue of the lawsuit?
• How should I handle confidentiality and do you recommend using real names in the mock trial?
• My witness is not responding back to me. What do I do?
• I started my opening statement with the company commercial to humanize my client, but I got hit with a nuclear verdict. Why did my approach backfire?
• My witness won’t shut up during prep and is trying to win the case in the deposition – how do I stop this?
• My witness speaks very little English – what is the best way to conduct witness prep with a translator?
• Are jurors angry in the post-Covid era?

Watch this episode to hear Dr. Kanasky’s answers to these questions. Have your own questions? Send them to bkanasky@courtroomsciences.com.

Full Podcast Transcript

[00:05] Bill Welcome to the Litigation Psychology Podcast, brought to you by Courtroom Sciences, www.courtroomsciences.com. I am Dr. Bill Kanasky, coming at you live from Phoenix, Arizona. 104 degrees yesterday. Um, gotta tell you, being from Florida with very high humidity—very, very bad. I’m drinking a bottle of this stuff, a bottle of water, every 10 seconds. I mean, there’s nothing like, like, the sun’s great, but there’s nothing like waking up each morning—you can’t breathe, your lips are chapped, your, like, tongue is stuck to the roof of your mouth. Uh, my fingertips are all peeling and cracking. I don’t know how anybody could actually put up with this um, for the entire year. It’s a very arid, uh, very arid, uh, type of, uh, environment here, and, uh, I’m okay with the humidity in Florida. I mean, with this head, you know, no hair, I’m okay with humidity. I have no problem with it. But boy, you miss a bottle of water, you know, per hour in Arizona, it’s going to come back to haunt you.

That being said, let’s get on with this, um, very dry, uh, podcast. Uh, this is gonna be another solo podcast, and I figured let’s go over some questions I’ve been getting. I mean, getting some email questions, uh, some questions in person. This is kind of like, uh, viewer mail, for lack of a better. So let’s go over to the list here of questions, and these are all, these are all over the place, but I think they’re very important questions, uh, for attorneys. Okay, question number one: Should I do my mock trial in the actual venue? What about confidentiality? Should I use real names, uh, during the mock trial?

[02:02] Bill This is a very valid question. I think the vast majority of mock trials that we do, we do in the actual venue. I think it’s very important to be getting data and feedback from people in the actual county or counties, if it’s a federal case. Uh, I think it’s vital, uh, to get that. Um, in some instances, some instances particularly a rural, um, type of, um, venue where everybody knows everybody—yeah, I would say in that, um, I would say in that instance, you may very well want to use a surrogate venue. You know, maybe something, you know, 75 to 200 miles away, uh, would be, I think, acceptable. But in the vast majority of cases, uh, in, if it’s a, it’s a middle, you know, medium-sized city, uh, obviously if it’s urban, no, I think you’d do this, in the venue, um, because I think that’s where you’re gonna get the most, uh, validity and reliability. Um, I think it’s very difficult to find a surrogate venue. I really, I really, really, really do. So I’d say stick with the venue that you’re in.

Confidentiality—um, I know in our cases, our mock jurors sign a very strict confidentiality waiver. Some of our attorneys have wanted us to include an additional, uh, NDA on top of that, so the attorney’s office. We’ve never had a problem with confidentiality. Um, and from the beginning to the end of the project, I am constantly beating into their head the important confidentiality, um, and what’s gonna happen if they, if they break it. So, um, in other words, yeah, I scare the [expletive] out of them from moment one of the project, and I carry on that fear all the way through the end. At the end, I get them on videotape, each one of them raising their hands saying, “Yes, I’m aware of the confidentiality.” Trust me, we have, we have no problems with confidentiality.

[03:59] Bill Now, the last kind of sub-question on this topic: Should I use real names, meaning the real identity? Do you use the real name of the plaintiff, the real name of the defendant, you know, or did you try to camouflage or use, you know, use fake names? It doesn’t work. You try to change all the names, and then one of you, one of the attorneys, drops the real name by accident. Every time, right? And or you try to say, you know, uh, ABC Medical Center instead of the real medical center, and then halfway through the project, the attorney, boom, drops the name. And then on all the exhibits, you got the real name.

So I think you got to use the real names, and I think you want, particularly with, uh, if it’s a corporate defendant, I think you really want to test the, um, reputation of the defendant. Um, you know, you’re doing this project, you got the confidence, confidentiality, uh, contract in there. Why would you… I mean, what more? Spam calls right here. See? You need to really test, uh, uh, the reputation of the defendant. And in the vast majority of these cases, rather than hide it and see what people’s experiences, uh, have been with that defendant, I think that’s one of the most important parts of mock trials. So in some, yeah, do it in the venue the vast majority of the time, but if you have a special circumstance, particularly very small venue, you may want to go out of town and try to get a similar venue with similar, similar, not just similar demographics, uh, but similar politics, similar population. Again, it’s, it’s, it’s not an easy task.

[05:35] Bill All right, question number two: Ah, my witness is blowing me off, not returning phone calls or emails. What do I do? You know, this is probably your fault. Yeah, every witness—I mean, we’re talking hundreds of witnesses a year—so many of them come into this process, they’re scared shitless. And you know, if you’re just firing off emails or leaving voicemails, or your assistant or your paralegal is, I, I wouldn’t return your calls either. I mean, you’re scaring them, all right? And you probably did it up front. That’s probably what’s happening here. I’ve seen a lot of that where witnesses, they, they want to suppress, not repress, suppress anything related. Meaning they’re going to ignore emails, again, ignore all the letters you’re sending them. Why? It’s a, it’s a negative stimulus. That’s how our brain works. Right? Neuropsychology number one: negative stimulus—get the hell away from it. How do you get away from it? Well, ignore it.

Um, you got to be careful with how you handle your witnesses from day one and not come across like such an attorney you scare them. I hate… news flash, news flash: nobody likes attorneys. If you have an attorney, an attorney involved in something, it’s usually bad news, right? And so it’s an automatic fear instinct that pops up. And so what you do is you have to schedule that first meeting with the witness or the first phone call, and boy, you need to really be nice. Take the threat out. Explain to them the process here, that you’re gonna have to be following up, and you don’t need to scare them. Ask for them, “What’s the best way to contact you?” Then also maybe early on, address their fears. Address their worries. Okay, let them know, hey, this is not some big bad evil attorney; this is someone that, that actually cares about me. Okay, and you gotta, you gotta do that early, because the mo… if he starts firing off letters, right, or emails or text messages, well hell, I’m going to ignore you too because you scared the crap out of me.

[07:52] Bill All right, question number three: I just got hit for a nuclear verdict. In my opening statement, I immediately started with the company commercial because I wanted to humanize my client. We’ve heard a lot about this. Why did this backfire? Okay, I’m going to tell you exactly why it backfired. Now, number one: Do you want to do the company commercial and humanize the client? Yeah, yeah, yeah. 100 percent. 100 percent. You don’t, you don’t do that up front, silly. Okay, you save that towards the, towards the middle or back end of your opening.

This is what’s called the primacy effect combined with this, uh, bias, right? This bias, it’s called the availability bias. So here’s what happens. So plaintiff’s council gets up, does a, let’s say, a 45-minute opening. Butchers your defendant, your client, just butchers them for 45 minutes. And then you’re going to stand up and start defending and start saying, “No, no, no, don’t blame us, we’re the nice company. You know, here, let me take you through the company history. Let me show you how the good people at ABC Corporation…” No, that’s weak sauce. Okay, weak sauce with a capital W to start an opening. You start an opening with guns blazing. Okay, let me repeat that. You have to start an opening with guns… I see this mistake so often. Attorney comes up, “I am so proud here to be, uh, representing, uh, Corporation ABC. And by the way, jury, jury, uh, jury service is a very important civil service, and we really appreciate you…” You’re wasting time, damn it. It’s the most… god, I wrote, I wrote a paper on this, okay? That first three to five minutes of your opening, it’s vital. You come out guns blazing.

[09:55] Bill Number one, number two: It’s either alternative causation or you’re blaming something or someone else. Maybe it’s the planet, maybe it’s a co-defendant, maybe it’s an empty chair defendant. All right, come out guns blazing, because that’s what the jury needs at that point. They’ve just heard 45 minutes of how bad of a company you are, and they want to start assigning blame. You need to come out and give them something else to blame immediately. If you save that till the end, you’ve screwed it up. You’ve eliminated your primacy effect. And you do the company commercial first? Well, now we have availability bias. What is availability bias? The party most available is most likely to get blamed. Well, if they’ve been talking about you for 45 minutes, you come out, you start talking about you—you just put yourself on trial. It happens so often. It’s so, so… particularly younger attorneys, you need to learn primacy. Call me about this; I’ll send you the paper. Primacy effect and how to order information in your opening so you do not shoot yourself in the damn foot. All right.

[11:18] Bill Moving straight forward here. All right, next question. Question number one, two, three, four. Um, I love this one: My witness won’t shut up and is trying to win the deposition in the prep sessions. Obviously, mock, mock deposition. How do I stop this? Okay, you know, this is a big pet peeve of mine. Okay, pivoting. Pivoting is very, very bad. Whoever teaches pivoting, right? Just… I, I’m not saying a word, I’m just, I’m just saying it’s a very, very bad habit. And well, first off, the witness brain is pre-wired to try to win. They want to explain. Okay, negative reinforcement. You have a persistent negative stimulus, plaintiff attorney, right? We just talked about this in the last podcast… on the last podcast we talked about this. So what do they want? They want to explain to get rid of the negative stimulus, right? So there’s a, there’s a neuroscientific explanation for these explanations.

But if you’re telling your witness to do that, obviously that’s, that’s idiotic, okay? But witnesses need to understand… I just did this yesterday, and back… I’m on the way to a witness prep today. And yesterday I’m working with this physician. He’s been a physician for 35 years. He’s been deposed once, and that was a while ago. And so I’m preparing him for, you know, this, this new case, and I spent the day with him yesterday. And as I was walking out, he says, “You know, Dr. Kanasky, I want to thank you.” And I go, “Well, it’s no problem, this is my job.” He goes “You don’t understand,” he goes, “I was so set that I had to defend myself during this deposition. My mind was so set that I had to protect my professional integrity and I had to take the fight to them. And you taught me I don’t need to do that. I’ve got experts to do that. I’ve got defense attorneys to defend.” He says, “What I need to do is exactly what you told—I need to embrace my conduct, embrace my care. The more I defend, the more problems I’m going to get in. And thank you for teaching me that.”

[13:31] Bill So I think this guy’s going to have a good dep. But that’s the… they have to know that up front is the more you defend, the worse it’s going to get. That witness opens themselves up to far more counter-attack, longer depositions. Okay, so this whole, “Well, you know, sir or ma’am, isn’t it true on this particular day, you know, you did X?” If it’s factual, the answer is “Yes, I did.” Period. Not this, “Yeah, but, yeah, but, yeah, but, yeah, but, yeah, but,” pivoting. Okay, it’s dumb. I think it’s unethical if you’re an attorney to tell your witness to do that. Are you kidding me? They’re gonna step on a landmine, and plaintiff attorneys love it. Go call any plaintiff attorney right now, say, “Do you like it when defense witnesses argue with you?” “Oh, I love it, because I know I’m gonna win every time.” Okay, boy, now you got me all… trying to relax back to travel, and I’m getting questions like this, start getting me all ramped up.

[14:40] Bill All right, question number five. We’re gonna end here… no, I think we got one more question. We have six questions. Question number five: My witness speaks little English. What is the best way to conduct witness prep with a translator? Uh, let me tell you, I’m gonna throw Zoom into that. It’s hard enough by itself. It is. I think with the translator, I’ve done this a hundred times. Um, it’s really difficult. It really, um, lengthens… it triples the length of the prep. So if you planned on a day of prep, well now you gotta plan on three days. You have to get a translator that actually knows what they’re doing. Somebody that you trust, hopefully someone that you’ve used before. Um, it’s a bad position to be in. Now, it’s not impossible, but you’re gonna have to triple the length of your prep.

And here’s the key, here’s the key, which is what I’ve seen and it blew up in my face: That translator that better be the translator that shows up at the deposition. If it’s a different translator, you know, you’ve got different… I had one, um, you know, as a Spanish-speaking translator, and then at the, you know, they bring somebody else for the dep and they speak in a different dial… it’s still Spanish but it’s like a different dialect. It’s from a different area. It’s… and then there’s a lot of confusion. Um, it’s a real, real pain. I just say you have to lengthen your prep, you’re going to have to do whatever you can to make sure you have consistency in your translator so that something’s not lost in translation during the real dep. Uh, be very, very careful with that. Don’t want any, uh, nuclear verdicts because of the translator.

[16:25] Bill All right, finally we’re gonna wrap this up. Question number six and our final question in this podcast: Based on what you are seeing in your mock trials and focus groups, are jurors angry in the post-COVID era? Um, they’re not angry, they’re irate. Okay, turn, turn on the news. You’ve got, um, people getting sucker punched on the street. You got, uh, employees knocking out customers and vice versa in, in retail stores. You have full-on brawls on airplanes and in airports. Okay, you have fans, that are now back allowed into arenas, spitting and throwing things at professional athletes consistently. Are people angry? They have lost their minds, folks. Yeah, they’re angry. Hell, I’m angry. I’m a jury consultant, I’m angry. Yeah, people are angry.

And so we’re gonna have to be very, very careful, uh, moving forward here on how… this is why the mock trials and focus groups are so important, to get a read on people in your venue and where people currently are. All right, like what you knew about your jury pool, right, in 2019? I don’t think that carries over into today. Okay, this is why focus grouping these things is going to be so important. Mock trial is going to be so important. And then you’re going to have to change your voir dire and jury selection. That’s a, that’s an entirely different podcast, but you’re going to have to gauge where your jurors are emotionally, because obviously if you have a bunch of angry jurors, right, on your, on your panel, that’s not helping you. That’s not helping your client. That’s what’s going to lead to a nuclear verdict. So we’re going to have to address those things.

All right, that’s enough for today. Another solo podcast for you because I’m on the road. I hope everybody is doing well out there, getting back to working, back to travel. And, um, we’ve got a special podcast coming up—I’m not even going to give you a hint about this—but it’s coming up in the next couple weeks, and I’m just going to say it has to do with something huge that’s happening, that’s about to happen, happening, yes, we’re early, in the transportation industry. So just a little hint out there. So until, uh, until then, uh, thank you for participating in this week’s edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky. See you next time.