Dr. Steve Wood and Dr. Bill Kanasky, Jr. share the latest updates on the Reptile training program. Recently, the program has gone through an evolution and some rebranding. There appears to be a phasing out of the “Reptile” term but the program is alive and well and there are now even more options for the plaintiff’s bar to receive training on these variations of the Reptile Theory. Steve and Bill talk about the concept of cognitive schema and cognitive dissonance, which are keys to the success of Reptile attorneys, and why witnesses’ brains need to be rewired and rebuilt to keep them from being taken advantage of by plaintiff attorneys. They also answer viewer mail including questions about doing a mock trial or focus group if you don’t have videos of witnesses and the pros and cons of doing online surveys vs. a mock trial.
Full Episode Transcript
[00:01] Steve [Music] Welcome to Litigation Psychology Podcast, brought to you by Courtroom Sciences Inc. I am Dr. Steve Wood and with me as usual is Dr. Bill Kanasky. Bill, you—you’re upright, you’re alive, you’re coherent after your concert, so tell me about it.
[00:20] Bill Barely, barely, barely, barely. Well, well, I’m gonna start my rant this morning against myself. Um, major scheduling malfunction thinking that, yeah, after a week in Vegas, coming home and going to a relaxing music festival for four days would be—would be really fun. Um, that was not the case. So we have—we have four words that we need to discuss. The first two, we’ll call them “jet lag.” Bad. Bad, bad, bad, bad, bad. You don’t go out west and then come back east and start with a music festival, okay? So, note to self going—going forward. Number two: space dust. Oh my god.
[01:04] Steve I told you, man.
[01:06] Bill I’m not sure if our listeners know what this—okay, we’ll see. I’m gonna start the rant here. You go to this—this is a huge epic, maybe one of the biggest in the country, correct?
[01:17] Steve Uh, yeah, the Rockville, right?
[01:19] Bill At the—inside the infield at the Daytona National or the Daytona International Speedway. There’s like six stages, there’s 72 bands, and music started at noon and it ended at—at one o’clock in the morning. And you go to the concessions and the only other option: Space Dust IPA.
[01:462] Steve In normal circumstances, that would be a good option, but for a venue, concert venue, bad option.
[01:46] Bill Yeah, because here’s the normal circumstances, right? We’re at the airport hotel, hotel lounge, right? Hotel bar. Have a couple Space Dust and, boy, then you figure out pretty quick—quickly why they call it space dust, right?
[02:00] Bill Right.
[02:01] Bill And now—now I’m stuck with the—for four consecutive days because there’s—there’s really—there’s really nothing else. Um, I’m gonna have to see a neurologist after this trip. Wow. Um, yeah, so needless to say, a lot of fun. Metallica was freaking fantastic, uh, both nights. Uh, Disturbed played, they were fantastic. Unfortunately, they played until about 1:15 in the morning. This is where the jet lag and space dust interact, okay? Very, very, very bad. My wife’s going crazy, I’m like asleep standing up. It was—it was tough. Staind was outstanding, uh, The Offspring was outstanding, and then they just announced it for next year, which my wife is—she says she’s dragging you kicking and screaming come next year. We have Thursday night opening up with the headliner Korn. You a Korn fan?
[02:54] Steve I am Korn fan, yes.
[02:56] Bill Okay, well apparently I was on the website, that was the most requested band for next year. Friday night headliner, surprise, but I’m thrilled about this: KISS. Now, I did not even know they were still touring, um, but I mean that’s a—uh, decades-long band, uh, with great songs and, uh, they’re gonna rock it, right? Little Gene Simmons, right? He sticks out his tongue and it like hits the—hits the third row.
[03:22] Steve Exactly, yeah. I mean, that’s always entertaining.
[03:25] Bill Now it gets special, ready for this? Saturday night: GNR, baby. Guns N’ Roses. Now, I hope that Axl Rose has gotten over his obesity problem because apparently he doesn’t look very well these days, but I did see them in concert about three years ago in Chicago at the United Center and, boy, they rocked it. That Slash, man, you can’t beat Slash.
[03:45] Steve Yeah, exactly. I can see you right now in a cut-off t-shirt at the front—in the front row. Just…
[03:52] Bill Yeah, yeah. We’re going to talk about the front row in a second because you went to a concert too this week. And then finally, the headliner of headliners, Sunday night: my favorite band, the Foo Fighters. Foo Fighters. Remember the Saturday Night Live bit: “Foo Fighters.” Um, the Foo Fighters could be the best band out there and, uh, I think they put on the best show. Now, I was smart because I’m in my cushy, very, very cushy VIP session—section, right? Sipping—you don’t guzzle Space Dust—sipping my Space Dust. You on the other hand, go to a concert in New Orleans and you’re—you’re down on the mosh pit. I mean…
[04:31] Steve Yeah, I had—I had to do it. I had to do it. Uh, yeah.
[04:34] Bill You have battle wounds, huh? You got battle wounds?
[04:37] Steve I do. I do have some battle wounds. You know, 40 years old, I still think I’m 20. I just had—I had to say that I did it and I went down there. I lasted five or six songs of the main band and then my 40-year-old body took over and I—and I had to—I had to go back to my VIP section and sit in—from the safety back there.
[04:57] Bill But hey, at a concert, safety—your safety is the top priority based on what’s been going on.
[05:03] Steve Well, I can tell you—I can tell you that going back to what you’re saying, there were two instances where someone did fall down, uh, you know, kind of like fainted and stuff. Anyway, they completely stopped the music, turned the house lights on, security basically pinpointed them, nobody moved, everybody’s—gave them space—they got him out there.
[05:20] Bill Well, you can thank the Houston music festival for that because now everybody’s on—on guard. Speaking of litigation, we may get a call on that one from Live Nation.
But you know, moving—plowing straight ahead here, my secondary rant, and this one—this one really irked me, bothers me, okay? There’s one thing I can’t stand, which I’ve dealt with my whole career: plagiarism. Plagiarism, Steve, on Reptile topics, okay? We’ve been—I mean spearheading, right? Pioneering this charge—anti-reptile papers, CLEs, you name it, it’s all out there. Put a lot of work into this. I mean, I had to—I had to sue a competitor over plagiarism. I’ve had to call several attorneys that published papers that were cut and pasting, you know, right out of my stuff into there. I’m like, “Come on guys, you gotta—you gotta cite me.” It’s called what us big guys call professionalism, right?
So I get on YouTube yesterday and I like to say, you know, “what’s new in, you know, Reptile world,” and this attorney that’s going to go unnamed—I’m not going to—I’m not going to call him because I may just rip up a new one—he gets up there, he gives a 30-minute Reptile speech to the audience. I think it was a Med Mal conference, Steve. He’s—he’s reading from my paper. He just read from my paper. I started hearing, “Wait a second, boy, this sounds for—” He’s just reading sentence by sentence by sentence from my original 2014 “Debunking and Redefining the Plaintiff’s Reptile Theory.” And not once in 30 minutes does he give me any credit.
[07:03] Steve Interesting. I’m sorry, this is the first time hearing about—I’m surprised there wasn’t a total meltdown from you.
[07:08] Bill Well, well, the thing was, I’m—I’m not—I don’t have the, um, I don’t have the neurological strength at this point to meltdown after the jet lag and Rockville. So, um, I guess I’m just gonna let this one slide. But it just really, really, really bothers me. Put in all that work and then didn’t get screwed.
But speaking of Reptile, this is a very—uh, I advertised this podcast, uh, very recently to our LinkedIn followers. Everybody’s excited about it. We have some—we have some major updates. And one I just emailed you this morning.
[07:42] Steve Yeah, I saw that. Really? Oh boy.
[07:44] Bill Yeah, things are changing in Reptile world, okay? This is a long story, right? I mean, you and I talked about it in Vegas last week. I’ve got—let’s lay out the background, right? So the Reptile movement started by Don Keenan, right? Trial attorney in Atlanta. And David Ball, jury consultant, Raleigh-Durham. This thing gets started in 2009. They come out with their book, they come out with their DVDs, they come out with their training seminars, which obviously widely popular, right? And over the last decade and highly successful.
They had the Reptile website which they would, you know, essentially share their victories and you could, you know, buy their, you know, training materials on there. And to get into this training, like you had to sign a contract in blood that you wouldn’t share the materials and that you would never do defense work. I mean, pretty organized effort, right? It’s not—yeah, I mean my job is to keep an eye on them, right? See what’s going on. I collect depositions, I collect trial tactics, and what do I do? I share them. Don’t sell them. I share them with my clients, our listeners, and people that like to read our Reptile articles.
So here—here’s where the story begins. Very quietly last year, Don Keenan files a lawsuit in federal court, uh, in I believe the Northern District of Georgia, all right, Atlanta. And sues one of his Reptilian colleagues/students, okay? This guy’s name is Sean Claggett. Sean Claggett is a very successful, highly respected trial attorney, uh, plaintiff attorney in Las Vegas. We’ve had several cases against Sean Claggett. I have nothing negative to say about Sean Claggett. He’s a really good attorney, he gets really good verdicts for his clients. Um, you know, he takes a $500,000 slip and fall at Lowe’s in 2016 and turns that into 13.6 million. I mean, if you’re not prepared to go up against Sean Claggett, you’re going to be, um, in trouble, right?
So the very, very quiet lawsuit comes out suing Mr. Claggett essentia—and again, I’m not an attorney so I can’t talk to legal stuff—but essentially it’s almost like a non-compete. Like, you left and you went to this different group. Now, this other group’s been around for a little while, we’ve maybe talked about them once, they’re called Trojan Horse. It’s really been the only Reptile competitor out there, but small beans compared to Reptile as far as their membership and what they’re doing and—and they’re really a lot—really focused on—on trial tactics.
And so the claim here against Mr. Claggett, um—um, who’s the defendant, and the plaintiff who is Don Keenan and his group, is that, “You know, hey, you know, I—I trained this guy in all my Reptile stuff and now he took it to another group and he’s just copying what I—everything I taught,” okay? Almost like a non-compete clause with an employment case, okay?
And the language in the complaint was very vanilla, it was very straightforward and there was nothing—it was like, “Oh wow, okay, well, you know, Sean broke off and now Sean’s with this other group, Trojan Horse, and Reptile folks are happy about it,” okay? And then last week in Las Vegas, in Nevada Federal Court, Mr. Claggett sues, right, Keenan and the Reptile people for defamation. That complaint is scathing. You have got to get your hand—I have it, by the way. This is all public knowledge, Steve, I’m not sharing anything work—you know, work product attorney. These are—these are documents filed with both of these court systems.
And Sean Claggett just lays out everything Reptile behind the curtain—oh, it’s really, really unbelievable. Absolutely unbelievable. And so what apparently Sean’s claim is, is that since he’s left and went to this other group, that the Reptile people have essentially, um, you know, slandered him and, you know, it’s basically a defamation lawsuit. He wants punitive damages too, so he’s not—he’s not screwing around.
So this is gonna be very interesting how it plays out, but the purpose of this podcast is to give you the updates on what we learned from this Claggett complaint. It’s really—it’s really fascinating. So number one, which I find extraordinarily interesting: David Ball, the jury consultant who he’s on the cover of the Reptile book, Steve, has been completely phased out. Right? Number one. I don’t know what the backstory is there, but he was one of the founders of this movement that’s very, very successful. No idea, but he is no longer part of that system per—per—per the complaint. So I’m just going from the—the legal documents. So that is very interesting because he was really leading the charge on a lot of the training, particularly the training for voir dire, jury selection, opening statement. I mean, the guy—the guy’s a former playwright. I mean, he’s—I mean, he’s—he’s a expert storyteller. So he’s apparently no longer in the system.
Number one. Number two: apparently Keenan ran—and maybe still runs, but ran—the Reptile group like a concentration camp. I mean—I mean, if you did not follow the Reptile system to the letter, like, he would—he would—he would threaten to find you, he threatened—apparently he kicked a couple guys out who shared some things, you know, with—with other attorneys that didn’t attend Reptile. And this was a—it probably still is a very, very tight group. And Don Keenan, uh, was not gonna get—not gonna tolerate any deviations from the Reptile strategy.
And apparently that’s how the lawsuit started, um, is that—um, this is right from the complaint again, I’m not sharing anything private—is that, uh, Mr. Claggett had a case in Las Vegas and his opening statement went over an hour, right? Apparently that’s a big, big no-no in the Reptile world. And so this gets back to Keenan, so Keenan calls him out, they get into a big fight, then Sean’s like, “I’m out of here.”
Now, let me tell you about Sean Claggett. Again, very, very talented attorney, I have nothing negative to say about Sean. Sean started as a Reptile student, went through the program, became so good they made him a fact—he was like the number one faculty member with probably Ball being tied for first, right? So now they’re—so now they’re both out.
Very interesting. More interesting things. So I go—so immediately I go to the Reptile website. You know what’s changed, Steve? Is gone. It’s gone. Can’t find it. There’s—it’s—it’s gone. I go back to—I’m like, “What the hell?” I go back to Sean’s complaint, which says in the last two years they have phased out the term “Reptile.” It no longer exists. Phased it out. Okay, so theoretically Reptile’s dead, right? I mean, but no, it’s not because what—Facebook just changed the name, right?
[15:17] Steve Yeah, they did that for a reason.
[15:18] Bill So this is simply a rebranding, okay? But if you go googling “Reptile” looking for this stuff to educate yourself, you’re going to find all our stuff, you’ll find that, but you’re not—you’re not going to find the—the Reptile website that was up, uh, for 10 years. So the evolution of what’s going on here, otherwise known as the rise, the fall, and now the reincarnation of the plaintiff Reptile theory is: started Reptile, then it got really big and we—we talked about this in our speeches to educate people, it got really, really big, and so they took that and they made it the—so the next kind of rebranding which they stole the Reptile stuff everywhere, um, was the Keenan Ball College, okay? Keenan Ball College. That was phase two, uh, of Reptile.
Now we have these lawsuits and now they’re on, uh, rebranding phase three. Now Ball’s out, so now it’s the—uh, I’m on their website right now, the Keenan Trial Institute. The Keenan Trial Institute. No Ball, no Claggett. And it’s essentially the same exact thing as what the Reptile website was, just rebranded. And Keenan’s methodology he is now rephrased, so instead of Reptiles called “The Edge.” The Edge.
Okay, which makes motions in limine really interesting right now, because now theoretically you can file motion limine against Reptile theory and then they can legitimately—”I don’t know what you’re talking about.”
[16:49] Steve That’s—yeah, I was just going to say, “I went to Edge training, I have no idea what this Reptile thing is.”
[16:54] Bill But here’s what I can assure you of: the Reptile group, the Reptile tactics, the Reptile program is essentially the Edge program. Nothing’s changed. Nothing’s going to change. So I don’t know if they’re just trying to pull a fast one like the defense bar is going, “Oh wow, Reptile’s gone! Yay!” No, no, no, no, no, no. They’re—they’re not—they’re not gone. Um, they’re growing. They’re getting stronger through this Kenyan Trial Institute.
And now you have Trojan Horse with one of—with the Reptile number one guy right now joining them. So I think we’re gonna have to spend some time. The problem is, you can see where the Reptile people screwed up was security, confidentiality. It grew too fast on them and the word got out pretty quick. Trojan Horse folks have really protected their methodology. That’s a different podcast, because I think I know exactly what’s going on there.
But like with anything else, you’re going to have groups that—I mean, look at the Bill Belichick coaching tree for crying out loud, right? Or the Nick Saban coaching tree. You’re not going to keep all those guys together, they’re going to go out and they’re going to be successful elsewhere. So the whole point of this is to tell people if you don’t see the Reptile thing or the website, don’t—don’t get too comfortable, because what’s happening is it’s still growing under a different name. Number one, it’s spreading like the delta variant, right? It’s spreading to other groups and other groups are forming.
So the whole theme here is, again, the plaintiff’s bar has a ton—ton of really, really good training programs. Well, the defense I think is really lacking in those. So that’s—that’s really the—the—the theme of this is attorney training. You know, how does the defense bar counter, if at all? Because I really haven’t seen—you know, something here, something there, but I mean—I mean, Steve, there—I mean, when we do our talks, particularly nuclear verdicts, something that really rubs the audience the wrong way every single time. Every—I mean, when I get up on stage and there’s 200 attorneys and I say, “You know, one of the reasons for nuclear verdicts is they’ve got some pretty damn good attorneys that are well trained and try a lot more cases than you do.”
[19:25] Steve Strange how that never goes over well.
[19:27] Bill They’re better qualified and the whole everybody starts just getting pissed. And then know what happens afterwards? People come up to me, know what they say? They go, “You’re damn right, that’s exactly what’s happening.” Particularly, this is the dangerous part. I’m terrified what’s gonna happen like five to seven years. The younger plaintiff attorneys are getting this training while the defense younger attorneys, you know, they may be, you know, writing motions, um, but they’re not getting the same experiences of training as their counterparts on the other side. Largely because I think a lot of defense clients don’t want to—don’t want to finance that, you know? They want the top guy, they don’t—they don’t want to let that—that secondary, tertiary person. And there’s a lot of good defense attorneys out there, they’re just not experienced.
So we had this experience last week with our colleague Dr. Parker. Alyssa Parker calls me, she’s like, “Yeah, I just talked to this, you know, junior attorney at the law firm, we’re getting ready for this mock trial,” and she’s like, “Bill, I—I’m terrified.” I go, “Why?” She goes, “I don’t think she knows what she’s doing. I don’t think she knows what she’s doing.” You know, this is an attorney that’s 40 years old. I mean…Yeah, and—and—and that’s—that’s—that’s really scary.
But yeah, I think the theme here is that there’s a lot going on, um, that it’s just being rebranded on the plaintiff side, it’s going to continue to, um, to multiply. And, you know, the defense, I really don’t know what their plan is, because I know this: going to DRI or CLM and listening to some shitty CLE, right, that’s usually done really poorly, doesn’t—doesn’t get—that’s not—I don’t consider that training. You know, continuing education, sure, but it’s not training. And so, um, I’m not sure what defense bar’s gonna do in that.
But—but I mean, and I mean you’ve—you’ve heard about this, Steve, that plaintiff attorneys, a lot of the—a lot of these plaintiff attorneys are just damn good attorneys and no one—what—no one wants to acknowledge that.
[21:40] Steve No—oh yeah, they’re—they’re very good and I think they’re getting better as well, you know, with—with Reptile theory. And that is: you had the script before, right? And you had your “unnecessary risk” and “needless to—needlessly endanger” and you had all these buzzwords that when defense counsel heard them they knew, “Okay, well this is Reptile theory,” and it was really blatant, in your face.
And I think the plaintiffs bar has gotten better at realizing that those hot button words, you know, identify the Reptile theory and identify the tactics. So they’ve gotten very, very good at making things a lot less clear, a little bit more ambiguous, and then it makes it more difficult for witnesses to pick up on the fact that, “Okay, this—I know where the attorney’s going on this one,” because they’ve disguised it a lot better, which I think becomes very, very dangerous. Going back to the conversations that we always have about enacting these cognitive schemas of, you know, risk, danger, harm. When it’s not so blatant, it makes it really, really difficult to identify it and then make sure that you don’t agree to the things that shouldn’t be agreed to.
[22:44] Bill Yeah, it’s—it’s evolved. I tell you what, Steve, you did such as—just so everybody knows, uh, we were out in Vegas last week doing a full day. My knees—my knees and feet still hurt from that, much less, uh, Metallica. Uh, full day training seminar for the Nevada Trucking Association. What a great bunch of people.
[23:02] Steve Oh yeah, my gosh. I mean, they get up—they get a bad rap. The whole trucking industry gets a bad rap, but when you—when you really get a chance to meet those people and talk to them, just a really good group of people.
[23:14] Bill Yeah, and so and then—and then you and I were bullshitting the next day, but you brought up a good point. I—I want you to tell our audience really to define what the cognitive schema is, because this is really—this is really—I mean, the Reptile people don’t even know they—I mean, they’re using it, they don’t know what it is scientifically. And you and I are gonna explain this right now.
But every witness, every person, you know, has a cognitive schema for certain concepts. And you were making fun of me, uh, now twice—now twice in seven days—because I have my casino sportsbook cognitive schema and I have my rock concert cognitive schema. And when I get in those environments, you know, I act like a complete lunatic. Why? Because my cognitive schema is built to behave that way and to do certain things in those environments. Whereas in a different environment, it’s a different—it’s a different cognitive schema.
And what they’ve really capitalized on is the—and there’s two schemas and that’s—that’s the other thing people don’t really understand. Everybody’s safety, safety, safety, safety. That’s half of it. The other side of it is the risk, danger, harm. Tell our audience members just kind of what the cognitive schema is and how—how a really good cross-examiner can take advantage of the smartest of witnesses when that—when that cognitive schema is built the wrong way on the defense side.
[24:40] Steve Yeah, so what we refer to essentially—a cognitive schema is kind of a mental organization of a concept. So—so for example, if I were to say to you, you know, as we talked about—what I brought up, right, was Vegas. When—when you say Vegas, a lot of things come to your mind about Vegas, you know.
[24:58] Bill Unfortunately.
[24:59] Steve Unfortunately, yes, right? You know, you see slot machines, you probably see casinos, maybe you see the Luxor, you see—you know, you think about drinking, you think about all these different—going to shows. All these things are drummed up when you think of the idea of Vegas. And that’s why, you know, we were talking—is that it was like 10 in the morning and you just felt like—you’re looking around, you’re like, “Man, I guess I need to be drinking right now.” I mean, it’s like you felt compelled. I mean…
[25:21] Bill Everybody else is drinking.
[25:24] Steve Yeah. So, but that’s the thing is that it drums up that when you get into that position, it enacts these schemas in your mind of how you should behave, how you should interact, what you should—you should expect. And, you know, bringing it back to what we’re talking about about risk, safe—safety, danger, harm, all these different things. You know, what I did with the audience is you talk about: if I say the word “safety” and then just you sit there and think about it, it drums up a lot of ideas of what safety looks like. You know, taking—taking precautions, language that you use, talking about “safety is your top priority,” signage that you maybe you’ve put up—these are all different things that enact that you know what come up when you think of the word “safety.” Same thing with danger, risk. You can think about preventative measures that you take, you can think about all these different things that you do or the expectations of what you should be doing in order to remain, you know, safe and get rid of risk, danger, and harm.
So what happens, right, in a deposition is when that—when those ideas, those things get brought up by opposing council when they’re talking about, “You’d agree with me that safety is your top priority,” or “You should do everything you can in order to ensure the safety of your customers.” It engages that cognitive schema of, “Yeah, this is the way I’ve been conditioned to always say yes,” or “I’ve been conditioned to always make sure that I’m protecting people.” And it makes it easy for you to then say, “Okay, yeah, I agree to that,” when the answer is not “yes,” but you agree to it because that’s your cognitive schema.
And for you, it’s really, really difficult from a cognitive perspective to then go against that and say, “Well, wait a second, maybe safety is one of the top priorities. Yeah, I mean it—but it doesn’t go above and beyond everything else. No.” But trying to get yourself to disconnect from that cognitive schema and actually deliver that answer is very, very difficult for the lay witness to do without any additional training.
[27:21] Bill So we have to essentially break down the cognitive schema, which by the way has probably been reinforced for a couple decades, and then rebuild it differently. And this is why we’re psychologists doing this. You know, attorneys—you know, a lot of it—that’s why a lot of attorneys love us. Some of—some of them don’t love us because they think they can just talk to their witness and do this. No. If it was that easy, I would—I would be doing—I’d probably be in a health science center in university right now doing something. But it’s really, really hard to do that. Can you describe—because this is what the witness goes through once you start breaking down the cognitive schema of the witness and you rebuild it the right way to essentially redefine safety as one of the many concerns, right?
[28:12] Steve Right.
[28:13] Bill Not “the top.” And there’s no rank-ordered list. Of course it’s a concern. It’s one of the many concerns we have, but we have other concerns too, right? And you get it off of that, you know, top pedestal, right? Talk a little bit about how cognitive dissonance now is what—what—what the witness has to internally fight with to accept our methodology because they’ve been trained and having this—these safety messages beaten through their head 24 hours a day, 365. It’s a lot of internal discomfort, isn’t it?
[28:47] Steve Yeah, and I think, you know, the idea of cognitive dissonance is really where someone holds two conflicting beliefs at the same time and then essentially the decision has to get made on which way to go.
For example, I think anybody who really listens to the podcast knows that I’m a die-hard Michigan State, bleed green fan. And, you know, Tom Brady, who I’m sure most people would argue was the greatest quarterback of all time—I still think it’s Joe Montana, but I think I’ll lose that argument.
[29:18] Bill You’re going to lose that argument.
[29:19] Steve Yeah. But obviously Tom Brady went to the University of Michigan. Well, as a Michigan State fan, I essentially have been raised to despise the University of Michigan, right? So: Tom Brady, really, really good quarterback; Tom Brady went to the University of Michigan. You know, so I want to like Tom Brady because he’s a great quarterback, but he went to the University of Michigan. So that causes me stress, right? So then I have to make the decision, okay, do I like Tom Brady or do I go against the University of Michigan? So what I do obviously is I go against the University of Michigan to not like Tom Brady, right?
So that’s the idea is you hold these conflicting beliefs and then it causes stress, it causes anxiety, and then essentially you need to—you make a decision, right? You justify your decision one way or the other to go against what you know to be maybe the proper answer because you’ve realized, you know, you’re holding these two conflicting views.
And that goes back to when we’re talking about witnesses is that, you know, you have this where you’ve been preaching “safety, safety, safety, safety,” and then all of a sudden you get presented with the case fact that shows that you didn’t put safety as your top priority. And then that causes a lot of stress and, as you would like to call it, the “oh moment” with the witness, you know, where they have to realize, “Oh man, I’ve been preaching this, but then I’ve been doing that.”
Yeah, yeah. So then they have—and then that what it tends to do then is leads them to then cop to, “Yeah, we did something wrong in this case because I violated the tenets that I’ve been putting forth and, you know, I’ve been preaching all the time.” But to your point, when we can rewire the brain of the witness to then say, “Wait a second, okay, these are—these aren’t conflicting. I didn’t violate any of these things,” then that stress, that anxiety of holding those two beliefs becomes less and it allows them to say, “Wait a second now,” and—and then they can push back on the questioner and then not agree so quickly into the fact that they violated these safety rules.
[31:20] Bill See the problem here in Florida is that you have a lot of Michigan State grads here in Central Florida, and then Tom Brady comes to the Bucs and wins the Super Bowl. How do you not root for Tom? Like, I think they kind of got over that now.
Yeah, what I’d—see my beloved Chicago Bulls, who won six—let’s count them—six titles with who leading the way? The number one Tar Heel ever: Michael Jordan. And then once Jordan left, did his thing, then the Bulls, you know, sold off the team. Watch—watch the ten-part documentary, it’s freaking phenomenal. How do you get rid of Phil Jackson? That’s like idiot—anyway, that’s a whole ‘nother podcast. But then, right, in—in the 2000s, the Bulls just start drafting guys from Duke over and over and over and over and over. I couldn’t get—I had to just stop pulling for the Bulls. Now they got Coby White, Tar Heel. I’m—I’m kind of back to the Bulls, but I had to take like 12 years off because I kept drafting Dukies. I can’t. It goes against my cognitive schema and not you or anybody else is going to rebuild it.
Okay, now here’s the good news. When it comes to litigation, you and I are very well trained to rebuild all of these cognitive schemas and we’ve been very successful with that. So that is really where it’s at. That’s your Reptile update. But I’m not done yet because I am going to—let’s just go to the—let’s go to the Keenan Trial Institute now. Listen, “know thy enemy,” okay?
So we got, uh, kenantrialinstitute.com. We have: Undergraduate Courses, Graduate Courses—wow—Seminars, Webinars, Products. Wow. I mean, it’s the same thing as the old Reptile thing, but there’s a lot of stuff, right? So we’re gonna go to—I’m just gonna give you a little—uh, okay, the undergraduate courses, right? Let’s see. Okay. Course one—you know, now they just updated it with, uh, videos. Oh, we have to watch all these.
These are all brand new, okay? So course number one is “Rules and Case Selection.” You gotta know which cases to select, Steve. I mean, come on. That’s just a mere fifteen hundred dollars. I don’t know enough, but it says right here, “scholarships are available.” Scholarships are available, folks. Uh, open of course number two: “Openings in Order of Proof.” Number three: “Focus Groups.” Gee, that’s because they do a lot of focus groups. And that’s one of their main weapons.
Good god. Oh, you got a video on this. Oh man, I may spend the rest of the day just on—on the—and by the way, I want to take a step back here. I’ve got nothing negative to say about Don Keenan. Congratulations to your success. You’ve kept me a busy guy. I should send this guy a freaking Christmas card every year, right? I mean, congratulations to Sean Claggett and Don Keenan.
[34:23] Steve Well, I don’t think there’s any question that they’re—they’re very smart, they’re very well…
[34:26] Bill Yeah, oh god and successful. Yeah. And making people—now the tuition for the focus groups is only 1400, Steve, so you’re getting a—you’re getting a hundo a discount there. Course number four: Voir Dire. Voir Dire, mm-hmm. That’s 1400. Course number five: Depositions. Kind of not going in the order I expected, but that’s okay. Course number six: “Witness Prep.” And they have different speak boys—see, they have all their faculty on here with videos, Steve. You got to take a dig deep dig. Now, the witness prep’s only 1200 there. There you go. But I think they make you take these in some specific order, so you can’t jump around. “Mediations and Settlements.” That’s a doozy. Course number eight: Trial. Oh, we got couple videos here.
[35:10] Steve Trial. I wonder why? Because they like to go to trial, right?
[35:14] Bill Course number nine: Damages. Course number nine: Damages. I wonder how many defense attorneys have been to courses like this. I—probably not too many.
Electives. So you have—okay, here’s your elective, Steve. Uh, “Employment.” Employment cases. Elective course: “Admitted Liability and Car Crash Litigation.” Hmm. Wow. Okay. Okay. That’s the end of that. And a bunch of really mean-looking pictures of Don Keenan. He like just looks like he wants to beat somebody up.
Okay, now I want to say Graduate Level Courses here. Graduate level. Yeah, you gotta—you have to go—you have to get your undergraduate degree apparently to get to the graduate. Okay. Graduate: “Advanced Voir Dire,” “Advanced Mediation,” “Cross-Examination,” “Closings,” “Liability Closings,” “Damages,” “Advanced Witness Prep,” “Advanced Trial Management,” “Advanced Focus Groups.” Oh wow, that’s a lot of information. Oh, that’s not—that’s pushing two grand right there. “Advanced Depositions.”
And I think a lot of this, Steve, is that a lot of these graduate programs here are very performance-based where you’re going to go in there and they’re going to make you cross-examine a mock witness. So they’re going to make you give—up—there we go. Graduate: “Advanced Opening Statements.” And you’re going to sit there in front of this faculty and they’re going to help you do this and they’re going to—they’re going to beat you. Kind of like we beat up witnesses. Yeah, they beat up—they beat up their—their—of attorneys to get them better. That’s how I make witnesses better. I got to beat ’em up. Now, I got to encourage him. I have to remember it’s positive reinforcement and punishment, not negative reinforcement. Uh, but you have to criticize people to get to be—to perform better. Like a coach, you know? Like I was yelling at my TV last night during the Carolina basketball game.
[37:11] Steve Well, it worked.
[37:14] Bill Coach Hubert Davis was screaming. Well, yeah. Well, I don’t think the players are listening to me. They’re listening to Coach Davis. Uh, graduate direct exam. I mean—so I mean, that’s the—I mean, that’s the syllabus right there. But here’s the thing that I saw because I was on here last week getting ready for this podcast. And you can get your books on DVD if you’re a cheapo, right? Cheapo. You got books and DVDs. You can get—okay. But they have a student portal, right? People you get on there, right? You have to—but here’s the thing. I’m going to click on it right now. I—sh—I emailed you immediately this morning.
[37:45] Steve Yep.
[37:46] Bill As of—hold on, hold on. As of five days ago—I’m so proud to say this because I really think and I hope that you and I are part of this—part of this motivation: The Keenan Trial Institute has released our own weekly podcast. We’re approaching episode 100 here in a couple weeks, and these guys who are the Reptile guys—by this, let’s not—okay, they’ll say they’re not anymore, but they are—they they came out with a podcast. Weekly podcast. And I think they have four of them posted now. The first one is the “Med Mal New Revolution.” New Revolution.
So I would say—and by the way, if you’re a plaintiff attorney and you want to listen to this podcast, you should. I don’t care. You come to my CLEs in certain states. I don’t—I know—I know your game. I—you, right? Bring it. Bring it. It’s what I like. But the defense bar needs to bring it. Go look at this stuff. Go—I mean, they’re podcasting, for crying out loud. I mean, so you and I have more—more work to do. But—but this is going to be a lot of information that, you know, maybe the original—because the original Reptile—the Reptile website never had a podcast. So now this is going to be something that, you know, I don’t know if they—they consider it a risk or not. But if I’m a defense attorney, I’m—I’m subscribing to the—hold on, I gotta get you the official name of it right here, Steve. You’ve gotta get on this website. Uh, “Fridays with Keenan’s Cutting Edge.” That—that’s a pretty—I kind of like that name. I kind of like that name for their podcast. Wow.
And so they’re going to start podcasting and they’ll probably get a lot of hits on that. So that being said, that’s the Reptile update. Um, and what I think that what that shows you—um, they’ve done a great job with their branding, they’ve done a great job with recruiting, they’ve done a great job with their outcomes. And again, I want to make something very, very clear: I’m not here to bash any of these. I like beating them. I love beating them. Love beating them. Like Nick Rowley. Nick Rowley’s out of that system. He’s going to start—rumor has he started his own—his own trial college. So it’s—so this again, the Belichick coaching tree, the Saban coaching tree, right? This is spreading out. And I think the opportunities for—the plaintiff’s bar for training are just going to continue to multiply. And the defense has to do something to keep up with that, and I really haven’t heard—I haven’t heard much talk. How much talk have you heard about that at any defense conference?
[40:30] Steve Not a lot. Not a lot. And I think that was one of the points that I—that I wanted to bring up as well is, you know, we were—we were joking that it was, you know, fifteen hundred dollars and stuff, but you know as well as I do they’re paying it. And they think about that: they’re paying it in order to get trained up, yeah, that they can turn a slip and fall that was two hundred thousand dollars into a four million dollar slip and fall. I mean, so it’s worth it on the back end to spend the money for them to make the additional money. So they’re out there spreading the word, they’re out there sharing information.
[41:00] Bill And I think—I think yeah, I think that—I think the defense system that they’re married to, the billable hour, is also a factor. You know, if you’re a defense attorney, if you’re taking five days off, you better be with your family doing something on a beach. You’re not gonna go someplace and—and, you know, tell the family, “Yeah, I’m taking—I’m going to the beach without you to get, you know, Reptile training or Keenan’s Edge training.” Um, you’re not going to do that. And so I think that’s another—another factor. Um, is there anything else Reptile we need to cover? It’s alive and well, we see it every day.
Every week. Um, and so that’s where it’s at. But here at Courtroom Sciences, we will be on top of it, always have been, always will be. But yeah, the rise, the fall, the reincarnation. Now here’s the thing: if—if—if Claggett or Keenan contact us to, like, a focus group for their—their litigation or some witness prep, what would—what do you say to that? That’d be interesting, huh? I don’t think we’re getting that…I don’t think we’re getting that phonecall.
[42:05] Steve No, I—I’m gonna say that’s not coming. I’m gonna go out on a limb and say that’s not coming.
[42:09] Bill. But can you imagine how nasty those depositions are gonna be? Oh yeah. Oh, Don Keenan getting deposed and Sean Claggett’s three feet away, and his attorney is ripping on him, trying to “Reptile” each other, right? And here’s the thing, in those cases you can, right, because it’s not safety-danger stuff, right? Because the—the questions are all, um, you know, fairness, trust, loyalty based, right? Anytime you have one of those like contract disputes or copyright issues or trade secrets, right, it’s all about trust and faith. “Hey, you signed a contract with us, right? Isn’t your loyalty,your number one priority to the contract?”
[42:50] Steve I think you know, you brought up a good point. I think we need to do a podcast on that really soon because I think we’ve talked before, it’s all over, yeah. It’s—it’s creeping into other things.
[43:00] Bill We need to “Reptile” for like employment law and non—I think we may have touched on that. Different podcast. But yeah, it’s all fairness, loyalty, right? They’ve taken the safeties—now here’s the thing, Sean can come back, right? And Sean—’cause Sean has a defamation suit, that’s different, right? But they’re both saying that they’ve been harmed financially by each other. And so while the safety thing really isn’t there, they could totally do the, you know, “risk, uh, harm danger” thing from a financial standpoint, right? And, uh, boy those would be—I gotta get your hands on those depositions if it ever sees the light of day.
But, um, you know, trouble in paradise. It happens, you know? It happens. But again, as we—as we transition, uh, towards our final chapter here at this podcast, I’m going to say it another time: Sean Claggett’s a damn good attorney, and so is Don Keenan. And boy, they’ve all been really successful and, um, we’re not here to bash them. We’re here to educate our clients on how to keep up with these guys. Quite frankly, I think we’ve been doing a good job of that.
So, um, let’s end this. I have some viewer mail, Steve. Uh, these are both for you. I’ll certainly comment on them. I can’t read my own damn handwriting, let’s see. Okay. Question number one—we’ve covered this before—but so client says: “Do I even bother doing a mock trial or focus group if none of my deps were videotaped?”
[44:29] Steve Uh, short answer: yes. Yeah, so the—I mean, if you’re—you can a lot of times—so we’ve had this come up before, right, where there’s no video of the witness to actually show in order to get a read on the witness, but that doesn’t necessarily mean though that you can’t take snippets from the deposition. Doesn’t mean you can’t summarize the deposition. You know, you just let the participants know up front what a deposition is, what it—what it means, that it’s—you know, this is sworn testimony and we don’t have videos but we have a written transcript and it’s just as good as the video. So I think there’s value in it to be able to present. I mean, so if you don’t have the video, no, I don’t think it’s going to be something that’s going to be the killer to your mock trial or your focus group to not do it.
[45:13] Bill Now, here’s—now 95% of attorneys are okay with this. There’s just five weird percent that refuse to do this for discoverability part, which I don’t see how this is an issue, but hey, 95% is pretty good. Make a video of your witnesses, right? Make your own video. Make your own cross-exam. Right? Yeah, um, you know…Can you hire an actor to read it then or something? Ehh that’s a waste of time and—
[45:38] Steve Well, the real reason why I don’t like it either is because you know ultimately if you have the video, you can go and get feedback from jurors on their perceptions of the actual witness. Well, if you’re using—if you’re using an actor, well, they’re not going to be—they’re not going to be the actual person. So you’re going to get feedback based upon the way the actor looks and delivers it and the behavior is and the mannerisms—all that of the actor—and you’re going to get a misread on the actual testimony itself because you can’t separate what the person is saying from—from how they’re saying it.
[46:09] Bill Yeah, here’s an interesting follow-up question. What if I have the scenario where they videotaped all my witnesses but I did not videotape any of their witnesses? Because now there’s an imbalance. It’s—yeah, it’s—it’s a lot easier I think when you have all or none, but then when only one side’s represented, is that going to skew the results?
[46:31] Steve I mean, I think I would say “no.” Um, I think there is—there are some, I guess I could see where there’s some concern about that as far as what what I just said about the ability to both see and hear the—the witness, but at the same time I don’t know if I would say that I would not do it. I mean, I think once again it’s—it’s easy to explain to participants that some are videotaped, some aren’t. These we just happen to have videotapes and for whatever reason these didn’t get videotaped, and you just have—have them watch them. So I don’t know if I would say it’s going to skew it. I mean, obviously, like I said, people are going to be able to see the—the witnesses and they’re going to think a little bit differently, but I don’t think it’s going to be one of those things that you’re going to have to put as a caveat into your findings that, you know, “We showed this side’s videos, we showed this side’s as written, therefore the results are not accurate or they should be interpreted with caution because of this.” I don’t think that would be a strong argument.
[47:29] Bill Fair enough. All right, last question. We’ll wrap this up. Rather than spending fifty thousand dollars plus on a mock trial, why can’t I just spend five thousand dollars on a survey, use hundreds of people, and let them read a summary of my case and then answer questions? So meaning, there are services out there—so we do a mock trial, you know, you could have 18 jurors, you could have 24, 36 is kind of pushing it. You could break those up into deliberation groups, right, and get that very human factor interaction to really simulate what’s gonna happen at trial.
But there are services out there—um, I think all—I think this kind of developed in the political arena where they wanted to get massive, you know, data on certain issues, political issues or society issues. But what you can do is you can submit like a two-page summary of the case and then they can fill out like a 20-question questionnaire and it’s a fraction of the cost, but you can get a lot of people to do that. Why is that maybe not such a good idea from a scientific, uh—uh, and behavioral prediction, uh, standpoint?
[48:43] Steve So, I’ll preface—I mean, there’s—there’s sometimes I could see where this would be beneficial depending on what it is that you’re looking for, but I think those times would be few and far between. Um, I think there’s really no—we’ve touched on this before on the podcast—is that there’s literature out there to show that individual verdicts versus group verdicts can be vastly different. Terribly different. They can be much more aggressive. They can be—you know, you could take a 10 million case and then get together with jurors and before you know it’s a nuclear verdict. Or you can go the other way where you get an individual says it’s 5 million and they get together as a group and then they come up with 1 million.
So I think the—the group interaction is going to be much more beneficial to understand how people get there and then how they get to the decision-making process because, like I said, juries, you know—their decisions aren’t made individually, right? They’re individual, but then they have to come to an agreement together as a group. And that’s what is important to watch, and that’s when important when we do these mock trials, is to see how jurors are interacting with one another and who’s the leader, who’s the follower, what—what are the—the pieces of evidence that are making the case turn one way or the other, what are the factors that are influencing the verdict. So how did it go from a five million dollar case to a 10 million dollar case? What was it that pushed the button and what was it that made it go that far? Can’t get any of that as far as on an individual survey. So I think that’s where the value comes in, is to watch the interaction with the people and—and see how they’re—they’re coming to the decisions.
[50:23] Bill Yeah, um, I’ll take it a step further. I—I think they’re freaking useless is what I think. Um, okay, so I put out my—I put out my summary and then I figure out, “Okay, well, you know, 63% of the 500 people I pulled, you know, agree with the defense.” Okay, well what if the other 40 or 30-something percent are stronger personalities and beat down the 63%, right? It doesn’t—in a deliberate—yeah, in a deliberation, it’s—look at something.
I mean, we take individual data during mock trials and it’s—it’s—it’s a nice kind of little indicator on where people are leaning, but it’s certainly not predictive of what’s going to happen in the group setting, because you can’t predict the personality types on a—on a questionnaire. The communication skills, the leadership value—I mean, how many times we’ve been a mock trial where, you know, we—we hand out nine questionnaires throughout the day and juror number two—two’s like “strong plaintiff, strong plaintiff, strong plaintiff, stronghold strong plaintiff” and then they get to deliberations and they fold like a cheap suit in the first 30 minutes because they don’t have the leadership or communication skills or the desire to make their case and they just—”okay.” So there’s a really good example of how you can get a false positive by just looking at the questionnaire data.
[51:44] Steve Yeah, no, I—I agree with you. I think like you said, especially the—the point that you were just saying about “strong plaintiff, strong plaintiff, strong plaintiff” and then what ends up happening is they get in, they can’t articulate their case and they can’t give any good points to actually convince anybody. I agree with you, I think those surveys are…
[52:05] Bill Okay, sounds good. Well, let’s wrap this up, um, by saying—and I’ll let you do our close—100 episodes right around the corner. I think we kind of like Rockville, just announced the bands. I think we got to announce the lineup. We have Nick Rauch from Minneapolis, young—uh, he’s a good-looking guy too, I’m almost jealous of this guy. A vibrant young attorney out of Minneapolis who’s been on the podcast, one of our all-stars, fantastic. Wrote a really, really good Reptile paper, he’ll be a blast to have on.
Then we have Brad Hughes. Absolutely extraordinarily talented. Absolutely hilarious too, absolutely hilarious. When I’m in LA, he takes me to Dodger games—that earns—I think that earns him one of the top spots on this—uh, on this episode 100. Paul Motz, who’s been on multiple times, and Paul’s young and Paul has a lot of trial experience and he is really—he parachutes in a lot of cases. He is in the thick of all this. He goes up against the Brian Panishes, he deals with Reptile a weekly basis. That’s—that’s going to be great.
And then last but not least, um, and somebody who is now—he’s doing his book tour, he’s got his own podcast, and he’s a dear beloved friend, Mr. Mike Bassett, trucking attorney from Dallas, Texas. Um, that’s a hell of a—now that may not be Korn, KISS, GNR, and Metallica, or um… who’s that…Foo Fighters, maybe it’s not Metallica either. However, I think that’s a pretty healthy lineup of—uh, of—uh, defense folks and—uh—uh, shoot the—uh, shoot the—shoot the for a while as we approach the end of the year. Steve, uh, great job in Vegas, thanks for coming out. Close out this podcast and we will definitely, uh, be back on ASAP.
[54:11] Steve All right, well thanks for everybody for joining us. This has been another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences Inc. We’ll be back with another Kanasky rant very soon. So we’ll see you soon.
Be confident in achieving superior litigation outcomes. CSI has the expertise, track record, and capabilities to help you win.
