Episode #86 – Buyer’s Remorse

Dr. Steve Wood and Dr. Bill Kanasky discuss the topic of buyer’s remorse in litigation consulting. Bill shares some recent examples of clients who have invested in witness training and/or jury research, win their case or otherwise get a favorable result, but then have buyer’s remorse when they get the invoice. Steve talks about the psychology of what causes that perspective, the underlying human behavior and motivation, and explains and describes “approach motivation” and “avoidance motivation”. Bill and Steve talk about the disconnect between the identified need in advance of the outcome and the feeling about the decision after the fact and how these decisions are interpreted or rationalized afterwards. They also bring up the challenge in the insurance industry about how the person paying the bill (the Claims person) isn’t the one who directly realizes the benefit from the favorable outcome. Claims has to fund the expense but doesn’t receive the benefit when the witness training or research results in a positive outcome and this disconnect is a challenge. This buyer’s remorse can be experienced by attorneys and law firms too. Lastly, Steve and Bill answer some listener questions including the difference between a focus group and a mock trial, the biggest mistakes to avoid in a mock trial, optimal number of jurors for a mock trial, and more.

Full Episode Transcript

[00:00] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Visit our site, www.courtroomsciences.com. I’ve got my partner in crime with me, uh, and therapist today, uh, Dr. Steve Wood, because this is going to be a topic which I may very well lose my mind. Um, Steve, just to let you know, I’ve removed all firearms and sharp objects away from me for this podcast so I don’t hurt myself or anybody else. How you doing, um, down in College Station?

[00:41] Steve I am excellent down here. My weather’s looking good and things are good, so kids are getting ready to go back to school.

[00:49] Bill Yeah, mine went back this week. Get my life back, yeah, finally. God, that’s, uh, that’s a long, it’s a long, just torturous summer and just the fact that they’re back in school is excellent. Speaking about mental health, trying to improve your mental health, but this topic that we’re going to talk about today is not going to improve my mental health, it’s going to do the opposite. But I posted this on LinkedIn, it got a lot of likes, Steve, it got a lot of likes. Um, buyer’s remorse. Client buyer’s remorse. And I’m not talking trial attorneys, I’m talking corporate clients, insurance claims people. Buyer’s remorse. Let’s set this up because this has happened to me several times over 17 years. I get the call: “We have this terrible case, we need this, we need that.” You know, they end up doing their focus group, if not a mock trial on top of that. They figure out how to lose, they figure out how to win. They get their witnesses trained, they do everything they need to to avoid a nuclear verdict. They go to trial and they win. The good guys win. And they go to a bar and they call me and they thank me, they tell me how great I am. And then, roughly 30 days later, they get an invoice and they’re mad. They’re, they’re, they’re upset that they have to pay to win. They’re not just—let me get this off my chest, Steve, this has happened to me at least a hundred times—let me repeat this: they’re scared shitless of a nuclear verdict. We tell them, “Here’s how you avoid the nuclear verdict.” They do everything we say, uh, right? Us, the consultants, the trial team, everybody focuses as a team. We beat the bad guys, the good guys win, and then two months later, they’re appalled that it costs so much. Steve, we’re talking cases that are worth over 30 million dollars, sometimes approaching 100 million dollars, where the plaintiff’s getting zero and I send them a bill for 125 grand and they’re flipping out. “I can’t believe I spent…” like—and no, I have my theory. Now, you’re a social psychologist, I am a clinical psych. I have my theory that the buyer’s remorse happens probably for two reasons, and I’m, I’m just throwing this out there because these clients don’t call back. They don’t. I mean, it’s like I just saved you, you know, you and me, the legal team, the trial team, we saved you from a nuclear verdict and now you don’t want to hire us ever again. Makes no sense, does it? I think one of two things, I think one of two things has happened. I think somebody’s boss, maybe the claims person’s boss, has to approve this invoice and calls the claims person and says, “You spent 125 grand? The hell is wrong with you? You didn’t need to spend this money to win this case. That was dumb.” And they’re getting slapped on the wrist by a supervisor. Or the claims person wakes up after they—they wake up one morning, they see the invoice, and maybe it’s a little internal cognitive dissonance of, “God, did I really need to, to spend that money?” I’ll tell you a story. It’s kind of a—it’s not really a positive story. I just buried my grandmother’s ashes up in northeastern Pennsylvania. She had died over a year and a half ago. I had her ashes. They wouldn’t allow me to do anything with them because of COVID. Well, finally Pennsylvania opened, and don’t get me started on Pennsylvania, that’s a different story. So finally Pennsylvania opens up, I fly up there with the ashes, and I—they said to me on the phone, “There’s, there’s a service fee to, to bury the ashes at $650.” I’m like, “Listen, I just need to bury the ashes next to my grandfather, okay?” And so I came up, I arrived, and there’s like a guy there with the shovel. He digs a three-foot hole, I hand him the ashes, he puts it in, he, he fills in. This whole process took like seven minutes. And then looked at me and said, “That’ll be $650.” At this point, I have a little buyer’s remorse because I’m thinking, “Jesus Christ, I could have done—I mean, the guy just dug a hole for 650 dollars for crying out loud.” I, I kind of walked away a little ticked off going, “Okay, I get it, but, but come on, 650, right?” But now this is a—it’s not a good analogy, but the point is people have legitimate buyer’s remorse. But when you’re talking about a potential 50 million dollar exposure and then they win, and then after they win they complain that they had to pay to win? Steve, I’m sorry, I’m confused. Maybe I’m not a very smart guy. You got to help me out with this because I’ve been trying to proc—because it just happened to me the other week. Here’s another one, I’ll tell you another story. I’m just going to vent. This is just therapeutic Bill K venting. I am, of course, I’m at a bar, right? And my phone rings. It’s my client, uh, from California, and he says, “Hey, I just want to tell you, you know, this huge lawsuit that you prepped, those first three witnesses, man, those deps went great. Those deps went awesome, so great.” He goes, “You’re scheduled to come out in 30 days for the, the other three witnesses.” Said, “Yeah, I can’t wait to come.” He goes, “Well, unfortunately I’m calling to cancel.” “So what the hell do you mean you’re calling to cancel? You just told me the first—this is a $50 million lawsuit—you just told me the first three went really well.” He goes, “They did. The client doesn’t want to pay for three more. They want me to like copy everything that you did. They want to save money.” I’m not going to tell you what came out of my mouth at that point because that would be highly—I’ve been warned by our producers to keep this clean. I’ve been warned. I don’t need Apple, uh, uh, iTunes or, or Spotify giving me an explicit label like Bill Burr or Joe Rogan, although this episode would deserve it. I’m just going to breathe. Doctor, Dr. Wood, what the hell is going on with people when it comes to this buyer’s remorse? Because it’s, it’s, it’s making me nuts. I’ll tell you that right now.

[07:50] Steve Well, there’s, there’s a lot to unpack here, uh, for sure. I think one of the first things though, you know, I’ve been taking notes as you’ve been talking about it, but one of the first things I just want to lay out so that you know, you and the listeners understand, is that you know, really humans, right, are driven by motivations and we make behaviors based upon motivations. And one of the kind of the key motivations theories that’s been around since the Greek days is this idea, you know, of hedonism, of seek out pleasure, avoid pain. Well, that kind of morphed into this kind of idea of approach motivation versus avoidance motivation. So just give you an easy example. Approach motivation is basically where we go towards things that have positive outcomes, positive stimuluses, and then we obviously we avoid avoidance motivation. We avoid things that are negative and have negative outcomes, right? I think when you think about it, you know, we talked—I don’t know how many times we’ve talked about reptile theory—yeah, but a lot of that really is built into reptile theory as well, right? Move towards safety, stay away from danger. It’s the same exact thing. So for your concepts and put it in perspective for you, I mean, this is clients that are in this approach motivation of, “Okay, we see that what you have to offer, we see the services, we know that it could potentially help in this case.” You know, we’re in this kind of buy, we’re in this like, “Okay, it’s feeling good, this is a positive thing. We’re going to be able to get more information about our case, we could potentially win the case.” So that’s the approach motivation, right? Well, time goes on and then, you know, case goes through it—win, lose, whatever—and then that bill comes. And then boom, avoidance motivation, right? We get that, “Oh man.” So now all of a sudden we have this bill there that we know we need to pay. So what do we do? We try to get away from it because it’s that negative stimulus. So the best thing to do is to say, you know, “I’m going to be upset for paying.” Sometimes people don’t want to pay for a long time, you know, or they go into the thing and to your point and say, “I didn’t need to spend that money. I feel bad, therefore I’m never going to do it again.” Or you know, “I don’t want to do it again.

[10:00] Bill Like, you could have done all this, you could have made all these decisions yourself and save the 125 and still got the defense verdict.” That to me, that’s—That’s okay. Now I’m gonna, I’m gonna go back to a different—and okay, I’m not going to go to any more cemetery analogies. I think that that first one flopped. Grandma, I’m sorry. In 2016, the Chicago Cubs paid a ridiculous amount of money and I believe they were tied with the Yankees for number one in payroll expense. And they won the World Series, okay? No more Billy Goat, no more 1908. They got their World Series, right? And everybody was thrilled in the city of Chicago and around the, the country because there’s Cubs fans everywhere, including me. And then the Cubs come out afterwards and say, “FYI, um, we’re going to raise ticket prices next year. We’re going to raise the ca—” and know what the fans said? “Raise the ticket prices! We won! Yeah! Yes, we’ll pay more, keep winning!” Okay, that’s what I kind of expected from the clients here. But instead, what I’m getting is the New York Yankees. So New York Yankees go out, they spend an equal amount of money as the Cubs, and then they suck. Now that is where—hey, if you go to any, go to any sports bar here in Orlando, go to any sports bar in Texas, you’re going to find a Yankees fan and he’s gonna be really angry. And the first thing out of his mouth is, “I’m paying Stanton 27 million dollars a year to ground out the second base!” And they’re, they’re pissed. That’s called buyer’s remorse because the outcome didn’t match the investment. Here, here we have an investment of maybe a hundred, hundred twenty-five, hundred fifty thousand dollars in a consulting firm, and yes, you did have to pay your law firm to participate in the witness prep and the mock truck. Good, right? Fine. Let’s double it. It’s $300,000. You just avoided a 50 million dollar verdict and you just avoided being on the front page of the Wall Street Journal, right? Saying this company got whacked. And now you’re upset.

[12:23] Steve Yeah, I think it goes back—I mean, you said something else too. You talked about cognitive dissonance, obviously, right? A lot of, a lot of the people that are in the claims position and a lot of those others, their, their job is to help save the company money, right? So they see themselves as very level-headed and you know, company people that want to make sure they protect the company. And then they get this big bill and then they’re like, “Oh man, I just cost the company $150,000.” So then they have this, as you said before, cognitive dissonance of okay, well now I need to make myself feel better because I’m usually pretty, pretty frugal, pretty even-handed. I try to do the best for the company to save money. Now I have this that went against my normal concept of trying to save them money. So what do I do? I either try to rationalize it by saying it wasn’t worth it, I rationalize it by saying that, you know, we could have done—we could have done without it to try to do all these different things to rationalize the reason why that $150,000 or whatever it was wasn’t, wasn’t money well spent. I think about it like it’s the time when you go out to your, the bar with all your friends and you pick up, you know, you’re getting buying drinks for everybody, you’re having a good time. It’s great, everything’s good like you said, and then you get the big bill. Then all of a sudden, “The steak wasn’t quite as… you charged me that much for a steak? What was I thinking?” Yeah, it wasn’t worth $50. So then all of a sudden you start, you know, picking at that. But I think it goes back to another thing that you brought up though is, you know, I think we—you and I both struggle with this—is the idea trying to get across kind of this cost-benefit of showing that things that we’re doing actually have an impact on the case. And it’s kind of hard for—you know, how many times have we talked about this before where we tried to quantify? By having us get involved, you might have paid a hundred thousand dollars, but you saved seven million on the back end. It’s really hard to quantify that. So when you can’t quantify that, it really makes it difficult for clients to say, “Okay, well, because you were involved, we saved all this money.” It’s, “Yeah, wow. Do you think that…” like you said, “you think we could have did this without you?” And then all of a sudden before you know, they’re doing it without you, then they’re getting whacked and then they’re on the front page of the Wall Street Journal. But then there’s this hard connection between “Did that have anything to do with the fact that you didn’t bring a consultant?” or was it because, you know, you didn’t—maybe the case facts were bad or you didn’t prep the way you should have? And you can, you know, rationalize that as well and say, “Well, even if we would have brought in a consultant, we still would have got whacked.”

[14:48] Bill Yeah, okay. So I, I think we’re working through this and thank you so—um, if you’re charging me hourly for therapy…

[14:52] Bill I am—don’t worry.

[14:53] Bill Send me your, send me your invoice. So here’s the problem, and this is more for the insurance industry as opposed to corporation, corporate legal. The person paying the bill, right, the claims person, claims specialist, they do not benefit from the back-end cost savings directly. That’s the issue. They’re paying the bill, but somebody else in a different office and the company as a whole is benefiting from that, not them, which is the problem. Meaning they’re getting no reward for spending the—right? In other words, this—you know, this—okay, so the claims person pays the money, right? The team goes out, wins the World Series, but the guys down the hall get the trophy. Like the trophy never—the trophy—you’re not going to walk into any claims department and see the, the trophy there, right? Because the trophy never shows up there. So I think, yeah, it’s an organizational problem, it’s a philosophical problem. I wanted to bring it up on the podcast because I want to get out because it’s—it really, I got to tell you, I’m not—okay, I was a little pissed, but I’m just disappointed that everybody’s worried about nuclear verdicts. We crack the code, we have the formula, and you just don’t want to do it. Good God! I mean, the hell is wrong with you, right? It’s like, “Here’s the formula,” you just don’t want to do it.

[16:32] Steve I think the other thing that’s interesting too is—and this I saw it when you put it on your LinkedIn post—was the idea and some of the people that commented on it exactly the way I thought about it, right, is that your client had said, “Well, tell the attorney you’ve watched them do this a couple times, why don’t you just go ahead and do it?” And you know, as we know, I, I could sit here and watch videos on YouTube about how to be a heart surgeon, but I’m never going to go out and try to be a heart surgeon because I leave that to the people who are the professionals. You know, and I think it puts attorneys—and I’m not saying attorneys do that because you and I both have very close relationships with several attorneys we’ve done this—i mean, I can think of one attorney right now I probably did this 15 times, I’ve done witness trainings with him and he can pretty much predict everything that’s going to come out of my mouth, but he understands that that’s kind of not his role. So I’m not saying this is an attorney thing, right? The attorneys are very appreciative, they don’t think they can do it. But like you said, the clients do think that they should be able to do it, and it’s an unfair burden to them because you and I have also had conversations with attorneys that said, “Bill, I tried to do everything. I did picture-perfect to what you said. I said everything the way you said it, but the witness just went in there and bombed.”

[17:38] Bill And the witness bombed. Because I said because you didn’t do it the way I would. No, this is—there’s no formula, there’s no cookie-cutter that we provide per se. We tweak these services on a case-by-case basis and particularly a witness training on a witness-by-witness basis based on their emotional status, their cognitive abilities and or limitations, their behavioral tendencies, you know. What baggage are they bringing into this testimony? What personality type do they have? Is there a mental illness component involved? Oh yeah, now it gets pretty, pretty damn complicated doesn’t it?

Listen, this ain’t Home Depot, Steve. This ain’t Lowes and Home Depot where you can walk in and say, “Hey, I’m gonna do it myself.” I mean, you can. You know, I’ve seen a lot of my—uh, my neighbor tried to build a shed himself. That didn’t work out so hot. I’ll send you pictures. Right? So you know, by—hey, buyer beware. Fine. You know, yeah, I mean, but uh, you know, I, I think where the buyer’s remorse is, is when you, you invest in something and it sucks. I mean, we have a mutual client, let’s just call him Ray for now. You know who I’m talking about. He’s based in Illinois, okay? And, uh, he works for a large insurance company and we are doing some things for him right now. We’ll probably do another, uh, jury study. You know who I’m talking about, right? And he, he, he called us and said, “I already did a mock trial on this case. It stunk. It’s like two 19-year-olds were running it. They had no idea what they were doing. Nobody had a PhD. And idiot, you know, handed sixty-five thousand dollars for like a pile of junk.” That’s buyer’s remorse, right? Um, so thankfully he hired us and we are doing things the right way. But um, I had to bring up this topic and I know—I think the trial attorneys—listen, we have a lot of trial attorneys that listen—they’re, they’re mad too. I got the Paul Mots and the Matt Moffetts calling me saying, “I want to do this, but my client won’t let me,” right?

[19:52] Steve Yeah, I think I want to be clear too that that we’re definitely not saying—I think some of our best allies are the attorneys that want to bring us in that just can’t—

[20:01] Bill Oh yeah. Oh no, the attorneys have figured this out and they call like, “I really want to do this, but my client won’t pay for it.” Like, “Really? What’s the demand on the case?” “Yeah, 27 million dollars.” “Hmm, that’s nice. Wonder how many, I wonder how many times the plaintiff attorney’s mock-tried this case?” “Oh he told me he mocked it four times already,” which probably means twice, right? But still, it’s just a—until and again, it’s not the defense bar, it’s not the trial attorneys. I’ve got no beef with these folks. Until the insurance defense industry gets their together and figures out, “Yeah, we—if we just keep cutting financial corners to save nickels and dimes, we’re exposing ourselves to millions.” It’s just—your nuclear verdicts are never going to end. I mean, we think the reptile folks, that’s what they teach. They’re like, “There’s no way the insurance industry is going to put the money, time, and effort into properly defending a case.” That’s why you go try cases. Even if you lose one, try another one, because you’re going to hit—it’s a statistical probability, right?

[21:11] Steve I think it goes back to—and we’ve talked about this on other podcasts, and not to layer in a lot more psychology onto this—but you know, there is, you know, we talked about this approach-approach motivation and avoidance motivation. I mean, there’s temperaments too that are more approach-oriented versus avoidance-oriented, and I can bet you can guess on which side of the bar, uh, the plaintiff attorneys fall and the defense attorneys, or the defense bar in itself and its clients fall on, right? It’s more of the avoidance. So it goes back to your point that you know, kind of the people that are in that place are avoidance-driven. They want to avoid it. But as we’ve said before on other podcasts, hopefully the tide’s going to start to change and that these people start to understand that they need to become a little bit more of this approach, moving towards things and being a little bit more aggressive. And I think with that, it would help to change that mentality of what you said, of that when you get the bill and go, “Oh my God, it’s $150,000.” You get the bill and say, “Okay, it’s $150,000, but we needed to do that in order to win this case.” Plaintiff’s bar is doing that, right? Plaintiff bar is spending money out of their own pocket in order to mock-try cases because they don’t want to go in and—they want to win. So yeah, until we can get the, the defense bar and their clients to, to take a similar approach, I think we’re still going to be in this buyer’s remorse phase going forward. And it probably won’t be an end in sight and you and I will be talking on a podcast again about your frustrations.

[22:33] Bill Well, it’s this pendulum that swings back and forth. It’s a nuclear vert—nuclear, nuclear verdict! Oh, oh, we can’t—okay, let’s go spend money, spend money, spend money. Win, win, win, win, win, win. Oh my god, we’re spending all this money! Nuclear verdict—nuclear verdict—nuclear, nuclear verdict! Oh, oh, we’re getting drilled! Let’s go back, spend money, spend money, spend money. Win, win, win. This is what it is, yeah. And there’s no end in sight, unfortunately. Um, find better clients, I guess. It’s an unpopular topic but, but I don’t care. It is. Why—you know, is somebody going to call me and argue with me on this? I’d love to hear their counter-argument. Uh, let’s transition so I don’t lose my mind. Uh, Steve, I’ve been collecting some viewer mail over the last couple weeks. Uh, you have no idea what I’m going to ask you, but these are—these are so right up your alley. Uh, it’s all, it’s all mock trial stuff because been doing mock trials and focus groups. Uh, let’s see. Question number one: Um, what’s the difference between a focus group and a mock trial, and when do—how do I utilize… if they’re different, how do I utilize these things? This—I talked to a guy the other day, I mean that’s a 35-year vet. He didn’t know the difference between a focus group or a mock trial. Can you kind of give a brief description of each and then define like when and how to use these things? Because they’re—they’re really not even close. They’re very different.

[24:00] Steve No, and I think one of the reasons why there’s, there’s confusion is really just because other, other individuals just use them interchangeably. So it creates a confusion that when someone says they want a focus group and then we provide a focus group, it’s like, “Oh, that’s not what I was thinking.” But anyway, what a focus group is typically, is what we—you know, you identify three, four, five issues in a case. You know, each case has that. Maybe it’s causation, negligence, and there might be a few other things related to the case that you want to get information on. So what a focus group does is identifies each one of these in its own individual module. So for example, you would have—you could have either an attorney come up, one attorney come up that presents as a quote-unquote neutral party and then presents what the plaintiff side is going to argue and then presents what the defense is going to argue. Or you can have, you know, your typical two attorneys, one plays plaintiff, one plays a defense. But in that scenario, you would have a presentation on behalf of the plaintiff, defense, and then you or I though would get up there and do a focus group where we would dig down really, really deep just on those specific areas where we’d ask a lot of questions from the mock jurors, get them to clarify their thoughts, what questions they had, what was unclear. All their different, you know, basically really dig deep into that one issue. Whether it be causation, dig into that, and then once we feel like we’ve gotten sufficient information on just that topic, then we move to the next one and then have the attorneys present their information and then go in once again and do a focus group and then just really dig down. So that’s your focus group. You’re really just focusing on all these different issues, isolating them and making sure you really get a lot of information. It’s very interactive. Now on the flip side, you have your more traditional mock trial which is the—you have a plaintiff, defense presentation and it’s a lot of times the attorneys are just talking at the jurors. And then jurors go in, deliberate, and then come back. And sometimes you have time at the end—more often than not you do—but then you do get your, hour focus group where you can dig more. But that is a lot more structured in the mock trial approach and it’s just really not a way for attorneys to gain a lot of information from jurors except for at the end when they’re completely exhausted and their brains are mush. So, yeah.

[26:25] Bill So it’s not—I mean, what I tell clients, I say a mock trial is very attorney-focused while a focus group is very juror-focused. It’s jury-driven. And so, uh, those are the two things. And I think you can use both in discovery, uh, but I think—I really think the value of the focus group, uh, is so important because—that’s why, speaking of our friend Ray, they jumped right into a mock trial and never—they never did a preliminary test of the issues. This—they put a bunch of garbage in the mock trial. Garbage in, garbage out. Really nice to start with a focus group, figure out how jurors really do—do they even understand the issues? It’s like, “I want to—I want to know what juries feel about X, Y.” Well, what if they don’t even understand what the hell you’re talking about? How are we supposed to get their opinion?

[27:15] Steve Well, that’s—that’s what we found actually in what you’re referencing, is we found that when we did the focus group, they did a mock trial first. So they had gone through and had the presentations and that they were represented. But then when we got to the focus group, we realized from the feedback of jurors that a lot of the things they were talking about were completely over their head. It was just so unclear as far as any of the things that were being discussed. So obviously one of our big recommendations after that going forward was, you know, spend a lot more time clarifying these issues for jurors. So to your point, you know, the focus group is, is more beneficial at the discovery phase. It can be used prior to going to trial but it’s not—I mean, the mock trial is going to be really what you want to do prior to going to trial. The focus group is going to be more on that front end during the discovery phase trying to get—you know, there’s been times that we’ve used focus groups to try to elucidate what kind of questions to ask witnesses and depositions. Because then you know what the hot-button issues are, then you know what it is you need to get admissions on and you know what information you need to try to get. So if you get it up front, that helps to formulate the whole narrative of your case. And then obviously, you know, prior to doing a mock trial, you want to know what you need to clarify, what you need to clear up, and then use that information to go into a mock trial so that when you’re doing the mock trial, you have the cleanest one that you have as far as being the most informed before you do it. So going back to the whole point of this conversation about not wanting to waste money or feeling bad about wasting money, you want to talk about waste of money? Going to a mock trial when you have no clue what the, what the jurors are even going to think and then you find out about it and say, “Well, that’d be nice if we could then now present this information again with knowing that,” and then do another mock trial? And now you’ve added on an additional expenditure that you could have better off to do on the focus group side.

[29:05] Bill All right, nice job. Next question. I like this question. This—this is cool. Dear—but this is an email. “Dear Bill, I am doing my first mock trial next month. I don’t want to screw this up.” That’s—that’s a good start to this email, actually. “What—what are some of the top mistakes attorneys make during mock trials?” This is a great question. This is a great question. I know what I want to say but I’ll—I’ll let you start this off because I think we have a good top five, if not even a top 10 list.

[29:37] Steve Yeah, I think that I would say far, far and away, bar none, number one for me is that you, your—your plaintiff, whoever’s playing your plaintiff assuming this is the defense-oriented case—whoever’s playing your plaintiff attorney phones it in. You know, you get maybe a first or second-year associate or you get someone who doesn’t know the case. They just don’t know the case.

[29:59] Bill Yeah, yeah, yeah. And they don’t know the case.

[30:02] Steve And they don’t know the case, and maybe they’re not—they haven’t had the trial experience to present, you know, a case the way that opposing counsel in the real case is actually going to do it. So what ends up happening is they get up there, things aren’t as clear, they’re not as concise, or even—they don’t essentially believe the case. I think that’s another thing that we’ve seen is they don’t really buy the case.

[30:25] Bill Yeah.

[30:26] Steve So they don’t spend a lot of time really arguing the facts the way that opposing counsel would. So what ends up happening is, you know, garbage in, garbage out. You don’t have a strong plaintiff case, defense comes up there and puts on their really good case, and then of course you get a defense verdict and everyone’s happy and says, “See, this is great! You know, it just turned out the way I figured it was going to turn out.” Yeah, well, and—but the point of the matter is, and the truth of the matter is, ideally when you go into a mock trial, you’d like to get your ass kicked. Because that’s the way you’re going to learn. You know, you want to go in and see, “What’s the worst-case scenario?”

[30:58] Bill That’s the goal. Yeah, there’s several ways to win a case; you have to find out how to, how to lose a case. Um, I—I think the top thing, the top mistake that gets made is the lack of showing witness testimony. The—in other words, the only—because I had a—I’m on a conference call last week and guys like, “What? I’ve been—I’ve been a defense, uh, counsel for 35. I’ve done a ton of these. So the only way to do these is, you know, you know, one guy puts on his presentation that’s like a summary of the case and the other guy does a summary and then the other guy does a rebuttal and then you cut him loose.” And I said, “No, we’re not—we’re not—that’s very—that’s very 1987. Sorry. Um, we’re not doing that. We have to work in…” By the way, usually, um, this is able to happen even if you summarize. Listen, it’s like a trial. Some witnesses testify live, some are by video, some are read in. You do the same thing at your mock trial. It’s typically the top predictor of verdict orientation: the quality of the witness testimony. So what happens is you don’t present those witnesses. Yeah, they hear your story, but it’s almost like, “Which attorney do I like more?” right? Versus they see the fact witnesses. Oh, by the way, the corporate representative 30b6—you don’t show stuff like that? Man, that has a huge impact on jury decision making. So I see that as one of the major mistakes. Another mistake I see—but I think a lot of people may be worried about bad faith, depends on what your situation is—um, people are scared to test damages. They’re scared to test damages and I think a lot of—there’s some because there’s a thing… you do a mock trial, right? And you get lit up for 65 million dollars. Well, okay, now do you—now does that put you on notice? Like, “Okay, I better call my excess provider,” right? So I could see how that can create some problems. At the same time, wouldn’t you want to know? I don’t know, it’s—that can, that can go either way. Uh, let’s see here. Uh, next question, question number three: What is the optimal number of jurors to conduct a valid mock trial? I think this is an interesting question. I don’t think anybody really agrees on this. I think there’s a lot of cost implications here and I think it depends on what your goal is. Um, because most would say, most scientists would tell you, well, when it comes to sample size, you know, you want to avoid Type II error—I mean, you know, the more the better, right? Well, the problem is in this type of research, it’s too damn expensive. Um, people are not going to volunteer to do this; you got to pay them. You got to pay them well. So it’s not practical for “more the better.” And then again, are you doing your mock trial—which I’m going to answer two questions at once about different types of mock trials—is your mock trial meant to prepare for trial and to predict jury behavior and to identify juror characteristics that are going to be pro-plaintiff and high damages? Or, or is your mock trial designed to assess your case vulnerabilities, say, prior to mediation? I would argue different sample sizes, um, would be appropriate, um, for those two situations. Steve?

[34:48] Steve Yeah, I think we’ve done that and that—you know, your, your thought is obviously we typically do 18 to 24 jurors, right? So it’s somewhere in between there. Typically with the ones that are more, “Let’s get ready to go to war and we’re going to go to trial,” tends to be those 24 because then you can add essentially three groups of eight jurors so that you have additional people deliberating and making sure that you get more of a representative sample of the actual denier. And then you get a better idea of the actual potential outcome in the case. But I think it’s important too, like you said, is—what we get it a lot is that sometimes even when we do focus groups, people ask about, “Why are you only doing 14?” And the same holds true for why you would only do 18 or 24 for a mock trial is the more people you get in the room, the more you—the more social loafing you’re going to have, right? I mean, you’re going to have a jury of—you’re going to pay a bunch of people to come in and then you’re going to go break them into three juries of 12. Well, you can guarantee three people in that group are probably just going to sit there and not do anything the whole time and not provide you any valuable information. So that, you know, six to eight in the small group setting is your optimal amount that allows for, you know, not too few of people that essentially everybody—you know, if you’re the one or two people who disagree that you just get flattened because, you know, you don’t have anybody else in the group for you. And then it’s not such a 10 where it’s—not so much where it’s really difficult for you to try to come to a consensus, so many varying, varying opinions out there. And then at the same time you have so much information talking over people and yeah, you know, people just sitting there crossing their arms. So point being is 18 to 24 is optimal because it allows for not too many that it becomes unwieldy and inexpensive, and then not too few where you’re not actually getting enough information. Balancing act.

[36:38] Bill Okay, last question. All right. “I need to do a mock trial but I am not sure if my co-defendant is going to settle out before the actual trial. What—what do I do?” Now I know what I would do. Um, well I think first off, um, you don’t know whether they’re gonna settle out. I mean, you don’t know. This is kind of one of the reasons how what we call the “test-retest mock trial format”—um, how this developed and evolved—because we had clients be like, “Well, I really gotta test—like I gotta test how this co-defense is going to impact my case. I gotta test whether I can blame my co-defendant and not have it blow up in my face, or what if they’re an empty chair because they settled? I could blame the empty chair.” And so the strategy was—and it went over well because it kind of made a lot of logical sense, but yes, it did cost more money—is we got to do this twice. We, we got to do them, you know, do your mock with them in the case, and then a day later, a couple days later, we’re gonna do the mock without. And yeah, does that double your expenses and fees? Well, close. Yeah, it does. But I mean, you’d rather be safe than sorry when it comes to that. What do you think, Steve?

[38:00] Steve No, I agree with you 100 percent. Uh, you definitely want to try your worst-case scenario. I mean, I think in the—going back to when we were talking about some of the errors that are made in mock trials is that idea of not trying your worst-case scenario. You know, the information that may or may not come up, may or may not have a motion in limine on it that may never come in. I mean, you don’t know. So if you don’t know, you’re better off to just test it in a mock trial. Because the last thing you want to do is go into the real trial and find out later that they didn’t settle out  the case, and now you don’t have a strategy on, to your point, whether you should point the finger or whether you should play nicely in the sandbox. And you know, the last thing, as you know, I know attorneys always talk about is, “Never ask a question you don’t know the answer to.” Well, this would be another situation like that. Going to trial thinking that they’re going to settle out, then they don’t—now you have your question you don’t know your answer to, is whether or not you should point the finger. Because you might find out later that you shouldn’t have or you should have. And so you want to make sure you don’t take the wrong approach. And like you said, on the fly at trial when it actually matters—it’s not the time to try to figure that out.

[39:06] Bill Yeah, another such… you know, “Do I admit liability or not admit liability?” Well, do it twice. Admit liability day one, you know, day two. Another, uh, example… “Well, I’m not sure if this key evidence is gonna get in or not by the judge.” Do it twice. Day one, you put it in. I think with most mock trials you assume it’s gonna come in, right? But if it’s a really big deal, okay, on day two let it go and see if there’s a huge difference or not. Okay, that’s the end of viewer mail.

[36:35] Steve I did want to touch on one thing though, like I said, going back… now you’ve got me on a roll with mock trials. Um, one of the other things you talked about about doing them—doing one day and doing another day based upon whether the information comes in. I think one of the other errors I do see is this concept of, “Well, let’s tell—let’s wait and hold this information to the end and then let’s say, ‘What if I told you this were going to come in? Would that change your thinking?” From a psychological perspective, jurors are not wired that way to then say, “Okay, well, I’ve been—been consistent,” right? We’re wired for consistency. “I’ve been consistent all day, I’ve been saying this, I just heard all this information, I just deliberated, I just gave my verdict, and now you’re giving me this other information—is it going to change my opinion?” One, they might not know whether it would actually change their opinion because they can’t gauge it, because they’re not in the moment of the decision-making at the time. And two, they might not want to admit that it would change their opinion because now they have to unring the bell they’ve been doing the whole day and say that they were wrong in their verdict because they just deliberated for a long time. But had you given me that information, now everything would have changed. So I just don’t think it’s, it’s a fair assessment of that actual importance to the case because jurors just can’t really evaluate or assess whether or not it would change their mind. So you might get a bunch of people saying, “Nah, that wouldn’t have changed my mind at all,” which is what we commonly hear. But you know as well as I do, had it been presented in the actual mock trial, it probably would have changed their mind. So that’s another error to make sure, to your point, is if it’s—you’re not sure, do one day or do another day or put it in in the first place, but don’t save it to the end and see, “What if I told you?”

[41:08] Bill Hey, I totally agree. All right, well, I think this was a productive—I feel a little bit better after venting. I feel a bit better. Uh, send me your invoice, uh, Dr. Wood.

[41:18] Steve Don’t have buyer’s remorse when you get it.

[41:20] Bill Yeah, buyer’s remorse when I get it! I just won’t pay, I’ll delay my payment by six months like everybody else does.

[41:26] Bill There you go.

[41:27] Bill Dr. Wood—thank you to our audience. Thank you so much for participating in another episode of the Litigation Psychology Podcast brought to you by Courtroom Sciences. See you next time.