Episode #96 - The Problems with Juror Instructions

Dr. Bill Kanasky, Jr. & Dr. Steve Wood

Dr. Steve Wood and Dr. Bill Kanasky, Jr. talk about the problems with juror instructions. So many times, jurors don't understand them, don't pay attention to them, don't read them, are too long, etc. The biggest issues that jurors struggle with understanding are causation, burden of proof, negligence, past economic and non-economic damages, future economic and non-economic damages, and allocation of fault. 

To help jurors understand causation they must be educated and indoctrinated about causation beginning in jury selection, then repeating during opening and then again during closing so that by the time they get to deliberations, they have heard it a few times. For many jurors, burden of proof is confused with "beyond a reasonable doubt" due to their lack of understanding and what they have seen in TV shows and movies. Jurors don't understand the legal definition of negligence and is often just assumed to exist simply because there is a bad outcome. Jurors are very confused by past economic and non-economic damages and also by future earnings damages. Jurors do seem to get punitive damages and allocation of fault, for the most part, however, they tend to start their discussion around allocation of fault, which is not where they are instructed to start. The podcast wraps up with Bill and Steve answering viewer mail about witnesses responding with "it depends",  the pros and cons of blaming the plaintiff, and advantages of a mock trial with deliberations with fewer jurors vs. individual surveys of a much larger sample.

Podcast transcript:

Dr. Steve Wood [00:00:05] Welcome to the Litigation Psychology podcast brought to you by Courtroom Sciences Inc. And back with me again, Dr. Bill Kanasky.


Dr. Bill Kanasky [00:00:13] Yo yo yo.


Dr. Steve Wood [00:00:15] I want to start this podcast off with what I would like to call the Kanasky rant. I know you got some things you want to rant about, Bill. So what is it this week?


Dr. Bill Kanasky [00:00:24] Yeah, I think we need to make this an official because I pretty much start most podcasts like this. Not all of them. I think just the ones with you. I have a guest on. I try not to. I have a laundry list of things, by the way. Maybe you may notice my attire. I'm wearing workout clothes right now. Do you wonder why I'm wearing workout clothes?


Dr. Steve Wood [00:00:41] Was that because you had to work out?


Dr. Bill Kanasky [00:00:43] I had to lift weights for 90 minutes just to get ready for this podcast because I did get the mental, just negative energy out to start this rant. And there's a famous line from a movie, which there's no way you remember this. Remember this? Remember this line? I'm running in the red.


Dr. Steve Wood [00:01:02] one of the greatest, probably Quentin Tarantino's greatest movie, Pulp Fiction.


Dr. Bill Kanasky [00:01:06] It's there you go. John Travolta running on the red a please be nice. He says pretty please, pretty please, with sugar and to clean the car. Yeah. Don't want to get us a X rating on this or not podcast? Yeah, I'm going to start there. So I mean my first rant. Steve, are you a fan of chicken wings? I am a fan of chicken wings and I go out last night. I order a dozen wings. OK, now I'm I can't do the hot stuff anymore as I've aged my I mean, it tastes great, but like, I'm just ruined for the next three days. Are you a hot guy? A medium guy? A mild guy?


Dr. Steve Wood [00:01:45] I'm actually I'm a hot guy, but I am actually ruined for the next few days, too, but I look at it as the price to pay.


Dr. Bill Kanasky [00:01:51] Well, yeah, in Los Angeles, you're taking Prilosec like M&Ms. That's right. So I'm like leaning towards the like honey, garlic, you know something little lite in the stomach. So I get 12 wings last night. Guess how much it costs?


Dr. Steve Wood [00:02:06] Where were you in Orlando? Dr. Bill Kanasky [00:02:07] Orlando regular restaurant.


Dr. Steve Wood [00:02:10] 12-13 bucks, 13 bucks,.


Dr. Bill Kanasky [00:02:11] Twenty one fifty twenty one fifty. And I’m like what in the bleep is this? And she's like, It's the chicken wing shortage. I mean, you know, my gas is $4, now I'm paying $21.50 for a dozen wings. I think we need to raise our hourly rates. This is my capital for chicken wings.


Dr. Steve Wood [00:02:32] Yeah, exactly.


Dr. Bill Kanasky [00:02:33] It's not like I was going, I ain't get the lobster and the filet. I got chicken wings. $2.50. I s*** myself when I got the bill. Anyway, that's just my first informal rant but here's my formal rant and I've done this before. It's a repeat of a previous rant, but I have to say it again. Social inflation? Yeah, I did. I saw my LinkedIn. OK, so we've had several very nice defense victories lately, and a couple of them were with admitted liability, meaning you're paying OK. You are paying and class went high. We, we counter anchored, came in low prepped witnesses, helped with voir dire juror questionnaire. Damages come in low. Huge win for the defense. So what happened to social inflation that it just magically disappear in Des Moines, Iowa? I mean, we're in Atlanta, Atlanta, Georgia. I want to know where, because here's the thing. Every time there's a loss. Well, you know, social inflation, these they blame the jurors. They blame the jurors. Here's the thing. It's like the guy and you know this guy. So I'm sure you have a friend like this that makes you crazy. I cannot stand the guy when his team loses. He blames the refs, right? They blame the refs. Yeah, they blame the refs. What happened? Oh, man, those refs sucked. Cigarettes are terrible. Like. Maybe now. Maybe. Maybe you got outmaneuvered. Maybe. Maybe you got outworked, you know. And yeah, and you turn the ball over 10 times. It's unbelievable how this is such a convenient excuse that it makes no social psychological sense, because here's the thing. It's either it's there or it's not there. You can't have it both ways. And what I've seen a lot in these insurance magazines in these articles is when you see one of these nuclear verdicts, first thing is social inflation. These jurors are nuts. But then a week later, the defense wins. Well, now. Oh, well, oh, well, we put together this great case. Well, yeah. Meaning, yeah, you kind of it kind of points out the reasons why you're losing and it's not social isolation, it's lack of preparation, maybe lack of weaponry because your client sucks. You know, that's a potential possibility. Your witnesses stunk it up on the stand, right? You didn't plan for jury selection really well. Just every this social inflation topic. Absolutely. I did a webinar. I think I tell you this before, and it was what the insurance industry as a as one of five and I was the fifth to talk and all four of our like social inflation, social inflation. That was the problem. And I get I go, I don't believe in it. It's a myth. And everybody started yelling at me and my response was, OK, well, if that's the case, a social inflation is the reason for nuclear verdicts. It would be impossible for the defense to win right away if all jurors are pissed off the companies, all jurors are angry. OK? Jurors are upset about X, Y and Z. All right. Post-COVID post Floyd. All this stuff, right? If that's true, the defense is screwed every time, aren't they?


Dr. Steve Wood [00:05:58] Right? I just was never no reason to do anything. Just walk in there.


Dr. Bill Kanasky [00:06:02] Yeah, go take your medicine and get out. But no, the defense. And this is what no one talks about these seminars. Right. The defense wins a lot of cases, and it's convenient because when they win, it's a thing we really stuck it to them. But when they when you lose. It's social inflation. It's blaming the ref, Steve. I'm just telling it is blaming the refs you cannot blame. Do it unless it's a Duke Carolina basketball game, different story because the refs are biased towards, I just did it. There you did. Duke, Carolina, Duke, Carolina blame those refs all day because they're pro Duke. Everybody knows, and that is the Kanasky rant. Wow, that was nice. I feel a lot better right now. Good.


Dr. Steve Wood [00:06:49] I'm glad I'm here. I'm always here for your therapy.


Dr. Bill Kanasky [00:06:52] When you're it's like a therapeutic. This podcast is therapeutic.


Dr. Steve Wood [00:06:56] Yeah, I think one of the things we want to talk about today, though, you and I, one of the things we keep seeing over and over and over and over again, is this a obsession with jury instructions obsession?


Dr. Bill Kanasky [00:07:08] You said the word Steve obsession.


Dr. Steve Wood [00:07:11] The thought that the jury instructions actually matter is being the first one, right? Maybe I'm going to go on a rant here, but we end up. Giving these 40 page jury instructions to our mock jurors, and I mean, if they're not all asleep by the time I'm done reading the first page, I'm extremely surprised. Then you get finally get to the end. Then they get in the jury room. And then as they're working through the verdict form, they don't know what any other words mean in our mind. You even leave the verdict. The jury instructions with them in the room never wants to. They ever actually pick them up to look at them or see them. Right. So then they just go in there and they have no clue about any of the terminology that it becomes so crucial to the case, right? So, for example.


Dr. Bill Kanasky [00:07:55] Well, hold on a bit before you even go there. OK, so where? Where in California last week and the two mock trials? And I made the mistake because I'm behind the, you know, the the two way mirror and I listen to you on day one. Read the full jury instructions to the jurors before deliberations. OK, right? I fell asleep.


Dr. Steve Wood [00:08:17] I believe it.


Dr. Bill Kanasky [00:08:19] I really I really. I was like going to stab myself in the face with my ink pen to try to wake up. It was terrible. It was awful. And that's why I have you do that job, because if I did that job, I would fall asleep while I was reading them. Yeah. And now, before we go into some various definitions that make jurors nuts again without mentioning names, they describe the the defense attorney obsession with these instructions. I mean. It's out of control.


Dr. Steve Wood [00:08:49] Yeah. I mean, we've we've had it before where we're attorneys will get very angry at us when we're saying, Hey, you know, we're going to go read this jury instruction. We don't need this, we don't need this. We need to take this out. It needs to be really truncated. It needs to be really concise. It's like, No, no, no, no. All these matter. They have to know this. They have. If they don't hear this, we're not getting a good read. They have to know this. And like I said, at the end of the day, they don't listen. They don't know. They don't understand. So really, you're wasting your time and everyone else's time even trying to write those up because at the end of the day, like you said, they're not listening. I can tell you they're not listening. They're sleeping is what they're doing.


Dr. Bill Kanasky [00:09:26] And listen, it's a horrible position for the jurors to be in, you know, a recommendation that we could talk about after these horrendous, I mean, horrendous definitions is you can prime these jurors and closing argument to kind of define those things for them. All right, right before because when the judge reads it, it's just not going to it's not going to, it's not going to stick. But yeah, so the obsession with jury instructions. There is a couple of them. So we're watching the jurors deliberate. And of course, they're not understanding any of the instructions and they go off the rails. What's the what's the first one? I know which one makes me nuts, but which one makes you nuts? Because there's we have like a top three or four the week by week. It's it's almost impossible for these folks to understand.


Dr. Steve Wood [00:10:16] I would say, and we just saw recently I would say anything related to proximate cause or substantial factor.


Dr. Bill Kanasky [00:10:23] Number one, it's the number one seed in the East. Oh, man, number one overall seed in the tournament has to be proximate. Cause causation. Yeah.


Dr. Steve Wood [00:10:32] Unbelievable time. They can't even pronounce the word, let alone know what it understands or what it means or how it applies to the law, or how it's how they're supposed to answer the question within the context of that definition.


Dr. Bill Kanasky [00:10:45] I mean, absolutely awful the jurors. Now what was the question from the jury when they said, Hey, we need help, we came in, they go, What is substantial factor me?


Dr. Steve Wood [00:10:54] Yeah. My response to them was


Dr. Bill Kanasky [00:10:58] the fact was substantial what it was.


Dr. Steve Wood [00:11:02] I read it to you when I was doing the jury instructions that attention to. And then to. I said it's in the jury instructions that are right in front of your face.


Dr. Bill Kanasky [00:11:11] Yeah. And the 40 pages in front of you. Good luck finding that. And that's that's the other. So even though the instructions go in there with them. Good. Good luck. Right? It's like, I mean, it's like going through a IKEA manual, you know, you get that, you get that, you know that furniture from IKEA, you're trying to look through. And that's why that's why no one follows those instructions. You can follow. Yeah.


Dr. Steve Wood [00:11:36] It took him. I think once I told him it was in the jury instructions, I think it literally took him probably a good five to 10 minutes to actually filter through and actually find the definition in the jury instructions. Yeah, those are complicated.


Dr. Bill Kanasky [00:11:48] Yeah. Yeah. I mean, it's and that's just overall, even if he explained it. Well, I mean, I think you'll agree with I mean, it's my experience that the juror brain doesn't. It loves to skip over the three. So there's a three step process, right? And you can't you don't tell

them this. They should rewrite jury instructions to say this is a three step process, right? Negligence. And you define that yes or no. The second step is called causation. You've got to answer that yes or no. And if you answer yes to both, you got a damages. What these jurors love to do is they answer yes to one and just assume, well, wash, you know, shed. If you got if you got negligence, then there must be causation. They check that box and seven seconds and then they move on to damages, right? Right.


Dr. Steve Wood [00:12:37] Yeah, I mean, by the time they get there, by the time they talked about negligence, they've already talked about, talked about everything. So you see, like you said of the causation is almost a foregone conclusion by the time they get to it.


Dr. Bill Kanasky [00:12:47] Now here's the problem with that. And I've seen it work, but it takes it takes a lot of work from defense counsel is there are cases in which the defense has a causation defense, which is about the worst possible position to be in next to admitted liability and also admitted liability is probably easier to deal with, right? Because you keep a lot of bad stuff out and you're it's your damages argument against theirs, less anger, right? With this causation cases. It's really, really difficult because I think when juries don't understand that these concepts, they tend to give the benefit of the doubt because they want to move forward with the process. But if, if, if attorneys don't bring that issue like, for example, you have a causation defense case, you got to bring this up in how many voir dire questions have you seen on causation? Yeah. Not not many. And that's that's not good, right? That's not good because I think you can start educating them and indoctrinate them in the jury selection process. I think, I think on all cases they should be doing that, obviously not admitting liability. But any case, whether it's negligence and causation or just if you're admitting negligence but not causation, I think there's ways to do that over there by defining it. Asking, Does does everybody understand this? And you know, a lot of hands will not go up. And you can start to educate them and maybe even provide some examples to get their head around that. So then when they hear your opening statement, they're like, Aha, two hours ago, that guy just gave me an example. This is similar. And then by the time they get and then you do it again and closes right and your mind them. And by the time they get to deliberations, they've heard it a couple times. And these statistical odds of them being able to get it at that point. Is reasonable. I will tell you this. Zero percent of the time, if you just rely on the instruction epic failure, am I right on it?


Dr. Steve Wood [00:15:02] No, you're absolutely right. And we saw it when initially when the jurors didn't understand with substantial factor was we ended up doing it again. And the attorney did a good job on the second day of explaining substantial factor in the way that jurors could understand. And they got it, and they went about the time. It's like you said, when it got to the jury instructions. They already kind of had a sense of it. When I asked them later, like, did you guys actually understand it? And then I asked somebody, Can you say it in your own words? They were actually able to do it because to your point, they had heard it before. So it wasn't the first time when they're half asleep listening to the jury instructions.


Dr. Bill Kanasky [00:15:35] Yeah. And I in another, you know, another one is the whole burden of proof issue. It's not quite as bad. We're going to give burden of proof the number two seed in the Midwest in the tournament. They believe it or not, a lot of jurors jump right to that criminal burden, even though you just told them and they're like, No, no beyond evidence, beyond a reasonable doubt. And then you have to walk in and be like, OK, time out thing is in a real trial. You can't walk in and go, Hey, get back on track and redefine things in the mosques you've done. Have you seen that happen quite a bit


Dr. Steve Wood [00:16:11] All the time. So, you know, we haven't even talked about this about what our list was, but my number two was actually burden of proof because absolutely every single time, it's beyond reasonable doubt. Beyond reasonable doubt. Yeah, like you said, you go in and say, No, no, no. And then once again, you read it in the instructions you spend the time going through. Preponderance of the evidence means this and reading it. And then as soon as they go in, it's from all the TV shows, all the crime shows and all the things that they've watched. It's beyond reasonable doubt, beyond reasonable doubt.


Dr. Bill Kanasky [00:16:39] Yeah, I think for number three here, and we'll give a I think we're going to give this one, the number two seed in the western bracket is negligence. Yeah. That even that jurors tend to struggle because they know there's a bad outcome, right? And so a lot of a lot of people just assume, well, there must be negligence, which is why. Now back to voir dire, you don't see many causation questions, which is a problem. You and I need to work more on that and really sell it to our clients. There's I mean, the vast majority of the questions for voir dire are negligence based right now. My personal favorite thing because this case has made it all the way to the courtroom. The defense must have done something wrong, right? Like who agrees with that? And so what you see is in jury selection, there's this amazing focus on negligence, which, by the way, I'm not disagreeing with that. I think that I think that the causation stuff needs to be worked into that. And it's a really difficult. It's a really difficult concept. It's tedious and there's some percentage of jurors. I don't care how many times you explain it, they're not going to. I don't think they're going to get it.


Dr. Steve Wood [00:18:00] Are they know what's funny is you can hear them talk about negligence just kind of in a colloquial type of way and stuff. But the legal definition of it, I don't think they truly understand because we hear people say, well, they were being negligent, they were being negligent. But like I said, what their meaning of negligence is versus what the legal definition of negligence is are often vastly different.


Dr. Bill Kanasky [00:18:22] OK, I'm going to go now. I'm going to I'm going to switch. We haven't talked about the south bracket yet. The number one seed in the south bracket is past economic and past non-economic damages. Oh my god. Oh my God. Number one seed in the south. Number one, Kentucky didn't get it. Nope. Past past economic and on economic damages, did you see that jury? Try to figure that out there? Like, well, past well, like from when he started working from where they just don't and they don't understand the timeline of what it is. And then they can make some huge mathematical errors because they don't know when it starts and when it stops, right?


Dr. Steve Wood [00:19:05] Right? Yeah, some some of them, you'll have small numbers because they get it and then other ones, you'll have these wildly huge numbers that even when the plaintiff's counsel was offering up the past past meds and all past lost economics and all that stuff like that, their numbers are even higher than the plaintiff attorney even offered up.


Dr. Bill Kanasky [00:19:25] Unbelievable. Let's let's go back to the East Bracket in the five seed now, Steve, you're aware of the the 12 five upset, right? That's the one every everybody picks. So this this number five, it's worth bringing up, but it's more damages. But it's, you know, the future non-economic damages, future economic. I mean, they're putting together some formula on what this person would have made, right? And this is the math formula. No one really disagrees with it. You do have sometimes they have that well, you know, this 19 year old could have been an astronaut. You know, he could been working for NASA, or he could have been the next Bill Gates, right? And some of that gets crazy. But I think juries are fairly reasonable on the future economic future non-economic damages, right? I think this is where you see a lot of punitive attitude sneaking in. I mean, how many times have you have you heard it happen the other day? You have the word punitive comes up in that jury discussion, and there's not even a punitive question on the verdict form. Yeah, they think it's part of the they think it's part of the damages, like that's their job. And so again, now you've seen this quite a bit, right? I mean, there was go through the roof.


Dr. Steve Wood [00:20:46] Yeah. And it goes back to, I think really it goes back to reptile theory, right? Sending a message and all that like always saying, we're not we're not sending a message with compensatory, but they can't get out of their own way. As far as that goes. So absolutely it's almost baked in. And then if you have punitive as in the case of a sudden now you got more problems, right? Because part of your compensatory is we're already punitive. Once you get the punitive, now you're just getting whacked again for what you already got whacked for in the compensatory.


Dr. Bill Kanasky [00:21:12] it's a it's a double whack. Now I'm going to give the punitive damages instruction I'm going to give, like I think they're like a 10 seed in the Midwest. I don't see that as big enough, but I think maybe that could be the clearest definition on the entire form. You have a case. I mean, it says wanton, reckless, you know, deliberate indifference. They tend to get that right. Right. But all this other stuff we're talking about. Wow. So I think now, did I leave anybody out and anybody not make the tournament here?


Dr. Steve Wood [00:21:46] No, I think I think we're good. We had some bubble teams.


Dr. Bill Kanasky [00:21:50] I think everyone's allocation. Allocation. We're in sneak one. A bubble team that sneaks in. We'll give them the number 16 seed out west. Is this the whole process of allocation of fault when you have, you know, you have plaintiffs on the law and they have to break down those percentages? I think that's probably the easiest one, except when you have a jury panel. I can't add to a hundred times. Yeah, that's a problem. But what I do see, I think that's where you see some of the best discussions. And here's the here's the other thing that doesn't cause the whole jury form is illogical. People tend to start like, say, allocation of of negligence or fault or whatever is question number five. The discussion always starts there. Right, right. Because what you're supposed to do is yes, no part everyone. Yes, no party to causation. And you're going there and then you get to allocation. Usually what happens is the jurors sit down. They don't even look at the verdict form and they just start talking and they start assigning proportions right of way. And so I think that's how the human brain likes to process information. I think that's where a lot of jurors get started. And I think of all the questions that they have to answer. I think that's probably the most understandable and probably the least struggle that we get. Would you agree with that?


Dr. Steve Wood [00:23:17] Oh, I absolutely, absolutely agree. And I think to your point about how the human brain works, you know, a lot of times we get pushback from clients and like, get in there, fix it, fix it. There's supposed to be an allocation, right yet. But to your point, that's how they do it, right?


Dr. Bill Kanasky [00:23:31] It's how they do it.


Dr. Steve Wood [00:23:31] As I always say, right, it's how the sausage gets made. You would never get a chance to see that in a real trial. You just happen to get a peek behind the window in this. But that's how jurors are doing it in real cases. So that.


Dr. Bill Kanasky [00:23:43] That's how they do it. And I feel bad for the jurors because again, the whole system is completely illogical. Right? You have a judge saying, listen to both sides. Don't make any decisions. Oh, by the way, here's your instruction. You go back in this room and make a group decision. OK, Steve, that's not what happens. That's never happened in the history of any lawsuit. OK? The jurors start leaning heavily one way, actually. They start leaning in jury selection. They start more heavily leaning after openings. And then once they start hearing key witnesses, boom, they're locked in. And and so by the time they even hear these instructions? They're locked in, I would think. I mean, based on eight years of doing this and we watched the data. I don't see a lot of juror movement. After closings or rebuttals, you may get one here, one there, right? But you don't see like 10 jurors after a closing move over to the other side right now.


Dr. Steve Wood [00:24:43] Now to your point, and I think this is a whole nother podcast topic later. Yes. We've had conversations with attorneys about that too, right? Where they wait. So it's so it's not over. After my opening statements, it's like, No, no. And and to your point, it's not. They're not waiting until your closing statement, either. So it's not like you need your closing statements trying to convince everybody who was on the fence like you said by that time, all you're really doing. As we told, this attorney is giving them firepower and giving them and giving them things to go in and use in jury deliberations. It's not like all of a sudden they're going to see the light in your closing arguments that they never saw earlier on in the trial.


Dr. Bill Kanasky [00:25:20] Yeah, it's just not how the brains wired and any juror that does jump all over the place is typically not a very strong juror, and they tend to be all over the place in deliberations too. And they tend they tend to get beaten down. So I think OK, so lesson learned to kind of wrap up this topic. I think you need to take the time starting and jury selection to get some of these issues out there, particularly the causation issue. And we can work with our clients to develop those questions. Obviously, I think the negligence issues are already there. But then particularly, I do think in the closing, it's a good it's a good way to say, here's what the judge is going to instruct you really shortly. And you do that. You instruct them right and you can take those definitions and don't draw an objection. But you know, make them, you know, simplify them a little bit more. Tell them what they can and can't do. I mean, the nice thing about closing

arguments is typically unless it's a reptile closing argument, that's completely inappropriate. Judge, kind of let you do what you want closing. So I think that's a time where you can prime the jury to say, here's how this question is going to come out. Oh, by the way, you may want to jump from negligence to damages, but you can't do that because the judge says you can't hear these instructions that you're going to get in prime them. So if something like that happens, which did happen and one of the other panels in our mock jury, one of the jurors said, Whoa, whoa, whoa, whoa. We're not allowed to do that. Did you hear the instruction? And so it does. It does work. I think it just takes. It's going to take more attention from defense counsel going forward.


Dr. Steve Wood [00:26:57] No, I agree. All right, I'm going to wrap up with some viewer email


Dr. Bill Kanasky [00:27:02] I've got viewer mail too. We may want to save some for next time too, but what? What do you got? Because we're getting questions, particularly as we travel all kinds of get worn out with questions, so I just try to write them down and bring them to the podcast. What do you what do you got?


Dr. Steve Wood [00:27:17] I got one. I just got asked the other day, which I thought was good, and I wanted to get your thoughts on it. But you know, when we're teaching our witnesses about the concept of it depends because a lot of times it's going to be the correct answer to a question is it depends. There was some concern with some of the attorneys that said, Well, how does doesn't that make it look like the witness is being dodgy when they're saying it depends. So what do you what do you what are your thoughts on that? I know you have an answer. I mean, what do you what would you respond as far as how


Dr. Bill Kanasky [00:27:47]  I'm going to go on another rant right now. OK, so you have so you have it depends, right? Which there are more elaborate ways to say that, which are going to go over that in a second. Otherwise, that's yeah. But yeah, but yeah. But yeah, but pivoting. OK, pivoting sucks, right? I've made this very, very clear to the point where I think it's unethical to instruct the witness to do that because they're going to get clobbered. OK. Experts to have a lot of in my experience. They can get away with that because they've been down this road before. You can expert that testified 100 times before. They can play that game all day because their expert witness says this is what they do. You get a fact witness trying to pivot their way out. That's what looks evasive, defensive and argumentative. Now, where you can get in trouble with it depends is you don't want it to come across like a broken record. OK, so we give our witnesses. They all mean the same thing. First of all, extend that. That depends on the full set of circumstances. Period. No, I've never had a jury in 18 years of a problem with that answer. OK. Other similar they all mean the same thing equally as effective. That's not necessarily true in all situations. Right. More simple ones. Sometimes that's the case. Not always. Every situation's different. If you if any witness rotates through those boom, boom, boom, boom, you're going to be highly effective. But if the witness starts to pivot and starts yapping, you know, getting their yap or go in and going, you're opening up the door to more counterattack from the cross-examiner and they're absolutely going to going to clobber you with it. So it's key to put the witnesses through the type of training that we do and give them those tools so they could switch it up a little bit, right? But here, where the rubber meets the road, sometimes you have our producer yelled at me other day. So I got to be careful with what I say here because I got yelled, I got things. Some witnesses are less sophisticated than others. Is that correct? Did I come across, okay? Yes, very, very. Leave it at that. If I get in trouble for that, I'm going to quit the podcast and with a less sophisticated witness. They may have to do the it depends, it depends, it depends because they don't have the capability to work in these other answers. I don't care because at the end of the day, that deposition is going to be successful. OK? And then if you're at trial, you have the ability to rehab or direct examination that witness. So worst case scenario they just stick with, it depends. And they get through the depth they survive. It's to see. Plus, you're still alive, you're still in the fight. But if they start trying to explain their way out of things, that's where that's where the train's going off the tracks. Dr. Steve Wood [00:30:42] Yes. Excellent, awesome, very, very good. And to your point, I think one of the biggest things about training the witnesses to your point is to not make them sound like a broken record or at least tell them, Hey. Answer the question within these parameters. Find your own words in your own language. As far as how you say, it depends. You know, just don't. Yeah, but yeah, yeah, yeah. But so I think that's a that's a great point to hammer home for for any witness or anybody looking. What else you got? You got any questions.


Dr. Bill Kanasky [00:31:12] I got your email. Good. And we're up to the next ten minutes. All right. I'm going to give this question to you, but it's offered to me. Dear Bill, I have a case in which I want a badly blame the plaintiff for everything. Is this a bad idea? Are jurors going to get mad at me? Speaking of, it depends. Yeah, that's my answer to that one. I mean, I mean, Steve, I mean, you work on. I mean, hundreds and hundreds of these cases, there's sometimes if you try to blame the plaintiff, it's going to blow up in your face. Yeah, whereas other times, other times you better blame the plaintiff. I think it just really depends on the type of case you have and really what the what the facts are, because I think there's cases, probably that you really want to blame the plaintiff. And if you if you remember the concept of piling on, you get a 15 hour penalty for that in football. I think if you do that, jurors can get mad. I think there's a more subtle way to do it right?


Dr. Steve Wood [00:32:19] No, I agree. I think a lot of times in those cases that we're talking about, because that's always usually my recommendation is to just kind of give the jurors a little bit of ammunition and they'll come to it themselves, like you don't plant the seed and just pop in and hammer on the plaintiff to sprinkle it in a little bit and then let the jurors come to it. And then it's less about the attorney piling on and more about the jurors piling on themselves because they're not stupid. They're going to see it. They're going to be angry, they're going to be upset so they don't need you to come up there and stoke the flames a lot more. And I can think of a case vividly in my mind right now where we had that situation, where it couldn't go too far on this plaintiff because, you know, it would be it would become very, very problematic. So we had to kind of soft pedal it and just highlight the case facts, which then led jurors to say, Wow, yeah, person is not good.


Dr. Bill Kanasky [00:33:10] Well, that's why I like that test retest designed, you know, day one. You can go hard at the plaintiffs. You have it day two, you back off, you know, you plant the seed, let the jury water, maybe focus more on causation and see what happens. See if jurors get mad. I mean, that's really the one way to find out. OK, last question this you're going to let this is I'm totally putting all the pressure on you. You're going to love this. Dear Billl. I need to do some jury research for my case. I want to do a mock trial with you because I want to see the juries deliberate over liability and damages. However, my client wants me to sign up for a survey to get more people filling out questionnaires. But there's no deliberations. What are the pros and cons of both? Wow. I've been seeing this a lot. Right? Yeah. Meaning a lot. You get more data, but it's all individual versus doing the mock trial. Less data, but you get the dynamics of the deliberation process. Dr. Wood, what do you think?


Dr. Steve Wood [00:34:16] Well, as a as a research, initially a research nerd, I do like the higher sample size and I do like the statistical odds in that and being able to get all that information. With that said, you can go back and look at literature for years and years and years that shows that individual verdicts, individual decision making and group decision making is vastly different. What someone will do, what someone will say, how someone will act when they're filling out a questionnaire on their individual verdict form and how they'll actually fill out that and answer that same exact question with the group are completely different. So, yeah, you might. I mean, it would depend on what you're trying to get information on. Are you trying to get perceptions of your witness? Are you trying to get perception of the strength of your case? OK, well, maybe then getting 100 jurors to fill that out and give their input would be beneficial if you're looking for how much exposure you're going to have. How are they going to see negligence? How are they going to see causation? How are they going to interact? You can't. You can't do that through a survey. So it's going to be tailored to what is it that you're really trying to find out? And like you said, if you're getting ready to go to war, are you getting ready to go to trial and getting ready to go to mediation that you're going to want that more of that group dynamic of of a mock trial?


Dr. Bill Kanasky [00:35:29] Yeah, I mean, how many times in the mock trial where, OK, juror number five has been pro plaintiff all day, they get into deliberations and they fold like a cheap suit. Yeah. Now what if you only had that preliminary data and you started making jury selection decisions for that? That would that could lead to a lot of trouble.


Dr. Steve Wood [00:35:50] Yeah, I mean, a lot of times to your point, there's a lot of people that have these very strong opinions on either either side of the spectrum. And yet when they get into when push comes to shove and they actually have to explain themselves when they get into a room and six eight, however, many other people are staring at them and say, OK, you have this thought, and I'll back it up with any of the evidence you heard or explain it in a clear and concise way.


Dr. Steve Wood [00:36:17] So I do like it from a certain aspect. I do like the higher numbers. But like you said, it really going back to what we always say, it depends, depends on what you're looking for.


Dr. Bill Kanasky [00:36:28] I don't think a survey is a bad way like really early in discovery to get some preliminary data. The problem is cheap clients want to take that and use it as the gold standard for jury selection. You can't do that.


Dr. Steve Wood [00:36:42] No, no, I would. I would highly caution against it. I would personally not feel comfortable giving recommendations for jury selection if that's all we had in on a client told me. Help me pick a jury, and all I had was that I would not be very comfortable at all and I wouldn't be, I wouldn't put a client in that position because I wouldn't. I wouldn't want them to have a bad outcome based upon bad data.


Dr. Bill Kanasky [00:37:02] Yeah, yeah. All right. Last issue, and I'm going to let you wrap it up. I'm taking a four day weekend off next weekend. Guess who I'm going to go see in concert twice?


Dr. Steve Wood [00:37:16] Let me think. Metallica, No, it is Metallica, isn't it? Yeah, that's why I thought.


Dr. Bill Kanasky [00:37:22] Why is this not our podcast intro, I mean, listeners? I should play this before witness prep right?


Dr. Steve Wood [00:37:35] This should be. I can barely hear you. Yeah.


Dr. Bill Kanasky [00:37:38] Should be the intro to the podcast, and we could just rock out for 30 seconds. I'm going to go see these guys. I'm going to see them twice two times in three nights. It's a four day music festival and that's my mental health. I'm not looking at my phone. Here we go. This is what they play at Virginia Tech when the players walk on. I've seen a pretty intimidating, pretty intimidating stadium, the play, but that's going to be my four days of Metallica Stone Temple Pilots. Several others are really good the 90s and 2000 rock bands, and I'm not answering my phone and not doing any podcasts. Imagine If I podcast podcasts from the concert. Actually, that can be pretty cool during Metallica, but you could say you're going to hear a damn thing, I was saying.


Dr. Steve Wood [00:38:30] I've seen Metallica in concert put on an awesome show two times.


Dr. Bill Kanasky [00:38:35] excellent. All right, take us away dude.


Dr. Steve Wood [00:38:39] All right. Well, it's been another edition of the Litigation Psychology podcast brought to you by Courtroom Sciences. As we always say before going to CourtroomSciences.com, we have a lot of our podcasts up there articles, blogs, anything you name it. And if you need to get all of us, you can ask at bkanasky@courtroomsciences.com or me swood@courtroomsciences. com. Thanks for joining us for another edition. We'll see you soon.