The Litigation Psychology Podcast

Sarah Burton, Ph.D. joins Steve Wood, Ph.D. to talk about how the integration of early jury research with witness training is beneficial in developing your cases. Sarah describes the strategic advantages for deposition testimony by identifying issues in the early jury research that jurors find important. Jurors will share things they want to hear, learn, or know that witnesses will be asked about at deposition and preparing and training witnesses to provide effective responses to these critical topics is key to strong testimony. Sarah gives the example of learning in early jury research that mock jurors had concerns about the credibility of the company, which led to a higher focus on the directness and credibility of the witness during their deposition testimony. Steve and Sarah talk about how important it is to spend time in the prep to help the witness stay focused when they get frustrated or are struggling to apply the training. They share different scientifically-supported techniques they teach witnesses to help them relax and calm themselves when feeling emotional or stressed. Lastly, they talk about the use of jury research in preparation for trial and how jury research can help with developing a compelling case narrative. Watch the video of this episode here: https://youtu.be/7C23JMxYvFY

Bill Kanasky, Jr., Ph.D. talks about using AI for jury research. There are several limitations in the reliability and validity associated with using big data and AI jury research. The AI analysis is only as good as the data fed into it. The AI jury research offerings that are being promoted today lack reliability and validity due to the data that it is collecting, most of which is not venue specific. In order to achieve statistical significance, the amount of data required from each individual venue is much larger than what is available today. Additionally, any AI jury research or big data studies on specific cases cannot identify juror comprehension issues, juror emotional reactions, and juror confusion nor can it replicate the juror interactions that take place in deliberations. These missing elements have a direct impact on the validity of the data collected. A larger sample is not necessarily better - sample size is not useful with artificial stimuli. Serial focus groups are a much more useful data collection tool as they address all the limitations around venue, juror comprehension, juror interaction, juror confusion and allow for a much richer, deeper discussion with jurors to understand both the what and the why behind their feedback. Watch the video of this episode: https://youtu.be/bdtiG8YGqWM

Bill Kanasky, Jr., Ph.D. shares a couple of stories of recent attorney inquiries for litigation consulting services at the very last minute because approval was not received from the client until days before trial. When authority for litigation consulting services comes late, it limits, and sometimes even completely prevents, the services from being scheduled due to other obligations. Waiting until the eve of trial is a poor and risky strategy. Discussing litigation consulting options early and preparing well in advance of mediation and trial is critical to increasing the odds of better litigation outcomes. Watch the video of this episode: https://youtu.be/P7ChblG403c

Bill Kanasky, Jr., Ph.D. discusses the concept of sensitivity in jury research. Bill explains that the quality of the stimuli shared with participants in the research may impact the level of confidence in the research results. For example, when being able to show video footage of the incident or video of witness deposition testimony, these are high sensitivity stimuli that increase the reliability of the mock juror feedback. In contrast, if you only have written descriptions of the incident or witness deposition transcripts, the feedback from the jurors on those less sensitive stimuli will limit, to some degree, the confidence in the results. However, if you don't have video testimony or video of the incident, it does not mean you cannot still test what you do have. Making short videos of defense witnesses is a way to fill a video deposition gap. On the plaintiff side, if there's no deposition video, using social media of the plaintiff or other similar public media available can provide some useful insights from mock jurors. Gathering feedback based on the documentation you do have is still useful while recognizing that what jurors will see at trial will include stimuli that you were not able to test in the jury research. Watch the video of this episode here: https://youtu.be/HoCn8-10UIg

CSI Litigation Consultant Sarah Burton, Ph.D. joins Steve Wood, Ph.D. to discuss early jury research. Sarah shares details about a case in which she conducted a focus group very early in the case, while discovery was still open, to understand what jurors thought about an important piece of evidence that the defense was expecting to base their case on. And it turned out that this evidence was not important to the jurors - they understood the evidence, however, they were not persuaded by it which led the defense team to have to rethink their strategy for discovery and beyond. Early jury research can help guide and inform what the legal team focuses on that matters to jurors vs. what they may assume is important or relevant. Sarah and Steve also touch on how they handle angry witnesses. Lastly, Steve and Sarah talk about the Test/Retest focus group format and how it aids in testing whether liability should be admitted or not, testing specific pieces of evidence that may or may not come in, testing anchors and counter-anchors, and more. Watch the video of this episode: https://youtu.be/MEtNtkNpKi8

CSI Litigation Consultant Linda Khzam, M.A. joins Steve Wood, Ph.D. to talk about jury research in highly sensitive cases, such as sexual abuse and molestation, child abuse, racially sensitive situations like police shootings, etc. Linda and Steve discuss the challenges that jurors have in evaluating the evidence in sensitive cases and how the jury research has to be approached in these types of cases. The way in which the case is presented becomes critical in cases with sensitive situations so testing how the case is framed in a focus group is critically important to understanding what may trigger jurors and to gauge their reactions to what is being presented, and how. Steve and Linda also share their experiences with how juror's beliefs, attitudes, and experiences affect their interpretation of the evidence and how those with strong perspectives can influence other jurors and those who are afraid to share their opinion are influenced by them. They also talk about how to manage juror reactions to sensitive details in these cases and the emotional toll it can take on jurors to hear, see, and discuss highly unsettling evidence and case facts. Watch the video of this episode: https://youtu.be/7kDHLUg5WGo

Bill Kanasky, Jr., Ph.D. talks about a deposition topic that doesn't get enough attention: the question sequencing in a Reptile deposition. Bill describes how the setup questions that precede the transition point to Reptile/Edge questions lull the witness's brain into a state of safety which prevents them from recognizing the subtle transition to the dangerous Reptile/Edge questions. The witness's brain becomes comfortable with the basic, simple, fact-based questions being asked and doesn't realize when the questions change from safe to risky. Most attorneys prepare their witnesses for the "standard" Reptile safety questions. What's missing is that these Reptile questions about safety are actually the secondary threat - the setup questions are the primary threat and this is what witnesses need to understand and be prepared for. Detecting the transition to the risky Reptile questions is difficult, however, with neurocognitive training, can be done. Watch the video of this episode: https://youtu.be/vNjF1kqzS8U

Sarah Burton, Ph.D. joins Bill Kanasky, Jr., Ph.D. to talk about some do's and don'ts of jury research in medical malpractice cases.

Sarah's Don'ts:

- Don't go into a focus group expecting to predict the verdict - the purpose of focus group research is to understand how jurors interpret the evidence and what does and does not resonate

- Don't start your research with a mock trial - focus groups (exploratory research) should be the first step in jury research rather than mock trials which are confirmatory research projects

- Don't argue or advocate in a focus group - the problem when not taking a neutral approach to the presentation is it invites presenter bias

- Don't assume jurors understand what you are presenting - you must assess juror comprehension before diving into their feedback

- Don't make assumptions about how witnesses will perform - testing each of your key witnesses with jurors in a focus group is critically important

Sarah's Do's:

- Do focus on the why behind the attitudes and perspectives the jurors are sharing

- Do listen more than you talk

- Do be balanced and neutral

- Do video all witnesses at deposition to test in focus group jury research

- Do test your case early and often - apply the scientific method

Watch the video of this episode here: https://youtu.be/dT4Mh3RAXQ0

James Smith, Senior Technology Consultant with IMS Legal Strategies, joins Steve Wood, Ph.D. to discuss trial tech. James describes his responsibilities as a Hot Seat operator before and during trial. James and Steve talk about the different ways that attorneys work, meeting their diverse expectations, and how he prepares for different scenarios at trial. James shares a couple of war stories from trials and also provides tips for attorneys on how to help make the process of working with Hot Seat operators as smooth and impactful as possible. Watch the video of this episode here: https://youtu.be/E4LMBv2IPus

Endondist Chanelle Small, DDS joins Bill Kanasky, Jr., Ph.D. to talk about her experience as an expert witness on dental malpractice cases. Dr. Small describes the most common types of dental malpractice cases she sees and how she approaches the reviews that she is asked to do, particularly when there are questions about causation. She also shares a couple of stories of wild cases she has worked on as well as her experience with testifying. Lastly, Dr. Small talks about how she explains complex dental terminology and topics to jurors, the difference between working with defense attorneys and plaintiff attorneys, and answers a speed round of questions about dental health. Watch the video of this episode here: https://youtu.be/zl568PD5XBE

Brad Hughes, Member at Clark Hill, joins Steve Wood, Ph.D. and Bill Kanasky, Jr., Ph.D. to talk about what he's seeing in the current litigation landscape including the latest on what the plaintiff's bar is doing pre-suit, early in litigation, and at trial. The group discuss the importance of selecting the right cases to take to trial and Brad shares insights on what he has learned about how plaintiff attorneys approach their cases. Brad also offers his perspective on what the defense side gets wrong and why. Lastly, Brad, Steve, and Bill talk about the use of AI in legal. Watch the video of this episode here: https://youtu.be/kZl49qlmZPo

Linda Khzam joins Bill Kanasky, Jr., Ph.D. for part two of their discussion on anchoring and counter-anchoring. Linda begins by talking about the focus groups CSI has been doing to test voir dire questions and also focus groups testing opening statements. Linda and Bill describe the goals for the disruptive voir dire system, the questions asked of the mock jurors to help identify the questions that work and those that don't, as well as the indoctrination that is necessary to tie voir dire to opening statements. Lastly, Linda and Bill talk about setting up the topic of anchoring and counter-anchoring in voir dire and then addressing anchoring in your opening and how to handle there and in closing.

Trial Attorney Tad Eckenrode of Eckenrode-Bauman joins Bill Kanasky, Jr, Ph.D. to talk about an article he recently authored for CLM Magazine titled "The Elephants Are Multiplying" about major issues in the insurance defense industry. Tad shares his thoughts on the challenges with the compensation model for insurance defense firms, recruiting and retaining new attorneys, issues with carriers cutting their firms' bills, the experience levels of younger attorneys, the expectations around the use of AI by insurance defense firms and the financial consequences associated with those expectations, and the shrinking population of both experienced trial attorneys and new attorneys. Tad and Bill discuss the consequences of these challenges and the current and future issues at play if these challenges are not addressed. Read Tad's CLM article here: The Elephants Are Multiplying.

Steve Wood, Ph.D. & Bill Kanasky, Jr., Ph.D. answer the latest podcast listener/viewer questions:

- How do I know when my witness is ready for their deposition?

- Are smarter witnesses more dangerous?

- What is the ideal sample size for a focus group?

- How important is likeability to credibility?

- What are the top mistakes you see in focus groups?

- Can big data predict jury outcomes?

Watch the video of this episode here: https://youtu.be/yCjnYizUN0E

CSI Litigation Consultant Erin Daugherty, Ph.D., BCBA joins Bill Kanasky, Jr., Ph.D. to talk about video evidence in litigation. Erin and Bill discuss how cases with video as evidence play out, whether police body cam, surveillance video, dash cam, security cam footage, etc., and how video evidence influences and affects juror perceptions about the facts of the case. They talk about what jurors expect from video footage and how their perceptions about what occurred is often influenced by what the video shows, doesn't show, what angles are available or not available, the inclusion of audio, number of cameras, etc. Erin and Bill explain the challenge, and importance, of showing mock jurors video of catastrophic injuries or fatalities, the emotional toll these types of videos can take on jurors, and why testing the reactions and emotional responses to these videos is vital. Lastly, Bill and Erin describe why the test/retest focus group model is crucial to detecting juror comprehension issues and increase the validity and reliability of the research results. Watch the video of this episode here: https://youtu.be/estaY4YlOhQ

Bill Kanasky, Jr., Ph.D. talks about how to get a witness back on track when they slip up during the deposition. Since it is nearly inevitable that mistakes will be made by the witness during questioning, this must be addressed directly with the witness during the prep to help forewarn and desensitize them to when they make a cognitive mistake during the deposition. The much more difficult mistakes to overcome are emotional mistakes that witnesses make when they go into the survival responses of fight or flight. These mistakes must also be addressed directly in prep by training witnesses to recognize what their emotional triggers are, to identify them occurring in real-time, and to self-correct and/or request a break when they notice it happening. Forcing these emotional responses during the prep is the key to the witness learning how to identify and manage their reactions. Watch the video of this episode here: https://youtu.be/KMhDoJtnYUo

CSI Litigation Consultant Linda Khzam, M.A. joins Bill Kanasky, Jr., Ph.D. to talk about anchoring. Bill and Linda discuss how plaintiff attorneys approach developing their anchor and Linda shares results from several recent jury research projects where damages were discussed with mock jurors and what their reactions were to the anchors and counter-anchors. They explain the importance of testing and re-testing cases with mock jurors in focus groups in order to understand what jurors think about the figures being presented from both sides and the emotion and perspectives behind where jurors land on both the anchor and counter-anchor. Testing damages with focus groups helps legal teams be better prepared for both mediation and trial. Watch the video of this episode here: https://youtu.be/eWz8WMAiCVw

Bill Kanasky, Jr., Ph.D. compares focus groups in jury research to x-rays in medical evaluations. X-rays are fast, reliable, and inexpensive early tests to reveal critical, structural issues prior to more advanced testing like an MRI. Similarly, focus groups conducted early in a case can be executed quickly and inexpensively and can reveal core foundational issues and opportunities in your case prior to more advanced testing like a mock trial. Virtual focus groups are exploratory in nature and exploration is the first step in the scientific method. Once exploration is done and hidden vulnerabilities and juror comprehension issues are identified and addressed, a confirmatory research study such as a mock trial can be done.

Bill talks about scenarios where a virtual focus group may not be sufficient or what the options are when there are complicating factors at play. Exploratory virtual focus groups help guide discovery, help make better decisions for settlement and mediation, help for trial prep, and help keep up with exactly what the plaintiff's bar is doing on their cases.

Trial Attorney Tad Eckenrode of Eckenrode-Bauman joins Bill Kanasky, Jr, Ph.D. to talk about the current state of medical malpractice litigation. Bill and Tad discuss the reasons for a lack of trust in the healthcare system. They talk about questioning strategies in voir dire to identify more specifically where juror frustrations with the healthcare system stems from and the challenge with not being able to discuss insurance with jurors. Tad and Bill also discuss the challenges with medical malpractice cases in the correctional facilities space and their perspectives on the use of AI in healthcare and the risks of using AI in both the patient/provider relationship and in the legal process. Last, Bill and Tad talk about witness pivoting, the problems that occur when a witness pivots, and the problem with attorneys who encourage their witnesses to ramble and be evasive in order to keep opposing counsel from getting a clean transcript.

Brent Turman, Attorney with Munsch Hardt, and Sean Murphy, Practice Lead of CSI's Crisis Consulting services, join Steve Wood, Ph.D. to talk about the recent verdicts against Meta and Google and what the juries in those cases found. Brent compares social media platforms to tobacco companies in the fact that these platforms were developed to be addictive. Brent also talks about how the representatives of these companies performed on the witness stand and the internal documentation that these companies had that made it clear they were aware of the risks of their platforms, particularly when it comes to children. Steve, Brent, and Sean discuss the crisis communications challenges for these companies and how these lawsuits are comparable to personal injury lawsuits.