The Litigation Psychology Podcast

Georgianne Walker, Trial Attorney & Partner at May Oberfell Lorber, LLP, joins Bill Kanasky, Jr., Ph.D. to discuss changes she has seen in litigation over the past couple of years. Georgianne talks about how her firm manages the volume of trial work with the logjam of trials taking place. Bill and Georgianne discuss the challenge of hiring, training, and retaining younger associates and how Georgianne's firm manages their associates and lateral hires. Georgianne shares how she works with difficult plaintiff attorneys and how she prepares witnesses for situations where opposing counsel might be acting up during their deposition. Bill and Georgianne discuss AI in legal and different ways they are seeing AI being used and not being used. Lastly, Georgianne provides a breakdown on a med mal case she recently worked on. Watch the video of this episode: https://www.courtroomsciences.com/r/CqN

Bill Kanasky, Jr., Ph.D. joins Steve Wood, Ph.D. to answer some recent podcast viewer/listener mail: - How can my client get their side of their story across at deposition if you tell witnesses to not offer explanations when answering deposition questions? - How often should my witness be taking a break during a deposition? - How can I prevent my witness from getting anxious during their deposition? - If my witness is getting argumentative during questioning, how should I handle that? - My witness has gone through the training process but the trial date got moved back, do we need to do the training again? - I don't want to stress out my witness before deposition; should I tell them that we won't win or lose the case based on their testimony? - Are some witnesses just a lost cause?  Watch the video of this episode: https://www.courtroomsciences.com/r/ZBS

Steve Wood, Ph.D. joins host Bill Kanasky, Jr., Ph.D. to talk about how to help witnesses navigate deposition situations where they may be thrown off by plaintiff's counsel disorganized approach or confusing questions, whether intentionally confusing or not. Bill and Steve describe what witnesses should do and be encouraged by defense counsel to do when plaintiff's counsel asks bad or poorly worded questions. What must be avoided is your witness trying to fix opposing counsel's poorly phrased question and providing a response to that since, regardless of how the question is worded, if the witness provides any answer to what they think the question is, they are stuck with their answer. It is critical to practice asking your witnesses bad questions and help them understand how to respond when they are asked poorly worded questions. Get a scouting report on opposing counsel to know what their style is for questioning and practice asking questions of your witness with that approach so the witness is able to experience it in the prep and be prepared when it happens at the deposition. 

Larry Hall, Partner at Chartwell Law, joins Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. to break down the process and positive outcome of a recent trial. Larry shares an overview of the case, how mediation went, and what the demands were from the plaintiff attorney. The group discusses the jury research that was conducted for this case, how the research was set up, what the legal team wanted to learn from the research, and what some of the findings were in the research, including surprises. Bill, Steve, and Larry also talk about identifying pro-plaintiff and pro-defense jurors based on the jury research and how they used the research findings to develop juror profiles, voir dire questions, and their opening statement plan. Larry then describes the process for jury selection, how they approached their strikes, and how the jury research informed both his opening statement and his closing. Lastly, Larry talks about the curveballs they experienced during trial, how his team handled them, and his client's reaction to the final verdict. Watch the video of this episode: https://www.courtroomsciences.com/r/k0J

Bill Kanasky, Jr., Ph.D. concludes our 4-part series on a sophisticated approach to voir dire. Bill discusses juror sympathy and commitment to following the law. Bill talks about a concept called sympathy override and gives examples of how to get jurors to open up about the concept of sympathy and whether they can maintain discipline when it comes to sympathy. You have to address the challenge that jurors will experience when their heart and head are in conflict. Next, Bill explains Pre-Commitment Theory and how to leverage public commitment from jurors to increase the likelihood of them sticking to their commitment, plus how Pre-Commitment Theory can also be used to hold each other accountable in deliberations. Verbal commitment in front of the other jurors is critical for this to work. Bill concludes by emphasizing that the key to the entire concept of this sophisticated approach to voir dire is pre-programming the juror brain and the stepwise process required to do so. Watch the video of this episode: https://www.courtroomsciences.com/r/pXC

Bill Kanasky, Jr., Ph.D. continues with part 3 of our 4-part series on a sophisticated approach to voir dire. In this part, Bill talks about cognitive dissonance and personal responsibility. Cognitive dissonance is defined as mental discomfort. You have to give jurors examples of when you have experienced mental discomfort so they can relate and will share their own experiences with cognitive dissonance and also so they will hold themselves and each other accountable during deliberations. Next Bill describes how to address the topic of personal responsibility and how to plant seeds on it so you prime their brain for the concept of personal responsibility. Lastly, Bill talks about the topics of sharing fault and risk awareness. Watch the video of this episode: https://www.courtroomsciences.com/r/oBj

Bill Kanasky, Jr., Ph.D.'s second part of our 4-part series on a sophisticated approach to voir dire. Bill talks about emotional persuasion resistance and the goal during voir dire of inoculating jurors against emotional appeals. Bill shares example questions and stories for how to inoculate jurors against emotional appeals by the opposition during trial and how to identify jurors you want to keep and which you want to strike. Bill also talks about anchoring and how to approach the concepts of anchoring, high dollar awards, counter-anchoring and social inflation, all during voir dire. Watch the video of this episode: https://www.courtroomsciences.com/r/Stb

Bill Kanasky, Jr., Ph.D. kicks off the first of a 4-part series on a sophisticated approach to voir dire. Bill lays out a highly advanced voir dire model based on behavioral science, cognitive psychology, and decision making research with a focus on cognitive fit, flexibility, and first impressions. It is critical in voir dire to build rapport with jurors to normalize differences in opinion and disclosure of information. The goal is to give jurors an easy out to strike themselves. Bill shares example questions to accomplish this and how to identify juror fit. Next, Bill talks about assessing cognitive flexibility and confirmation bias and gives examples on how to identify jurors with inflexible thinking. Lastly, Bill talks about the importance of likability, vulnerability, and relatability of the attorney and how that impacts your voir dire success and the rest of the trial. It is imperative to use personal experiences and stories to get jurors to open up, to be honest, and to trust you. Watch the video of this episode: https://www.courtroomsciences.com/r/5wH

Bill Kanasky, Jr., Ph.D. continues discussing the importance of validity and reliability in jury research and specifically talks about the use of the clopening in jury research. The clopening is a combined opening and closing statement - basically a summary presentation of the case. The issue with the clopening is that it impacts your validity and reliability because jurors don't hear clopenings in a real trial so any feedback collected is skewed. Also, in order to get the most accurate data in jury research, you have to measure immediately after the presented stimulus/information. For example, if you want feedback on your opening, you must measure immediately after the delivery of the opening. If you want feedback on a witness, the measurement must come immediately after the mock jurors hear from that witness. Waiting to gather feedback until all witnesses have been shown will not provide an accurate measurement. The most scientifically sound methodology for conducting jury research is to take measurements immediately after completing delivery of each piece of content that you want feedback on. Any other process for data collection will compromise your validity.  Watch the video of this episode: https://www.courtroomsciences.com/r/ZBE

Bill Kanasky, Jr., Ph.D. describes the scientific concepts of validity and reliability in research and why they are individually and collectively so important when conducting jury research. The question that validity helps answer is: are you measuring what you think you are measuring? Bill gives examples of how you can limit or improve your validity through witnesses and presentations in jury research. It's critically important to secure a clean read in your research and Bill explains how to achieve that.  Reliability in research refers to the consistency and repeatability of a measurement, so that if the same process is repeated under the same conditions, it should yield similar results. Having reliability in your data means you can count on the results and increases confidence in the findings to better guide decision-making on your case. Watch the video of this episode: https://www.courtroomsciences.com/r/1lp

Jim Pattillo, Partner, Christian & Small joins Bill Kanasky, Jr., Ph.D. to talk about different types of plaintiff attorneys. Jim and Bill discuss what the reasons are for why there has been a degradation in civility between attorneys in recent years and what can be done about it. They share how important curating a reputation is for younger attorneys and the importance of communication. Bill and Jim identify several different plaintiff attorney types and how to manage them:  - The unqualified and incompetent plaintiff attorney - The jerk, bombastic plaintiff attorney - The too busy or lazy plaintiff attorney - The unethical plaintiff attorney - The unrealistic plaintiff attorney  Lastly, Jim shares his firm's philosophy on mentoring and training younger attorneys and his advice to early career attorneys on honing their craft. Watch the video of this episode: https://www.courtroomsciences.com/r/6Em

Bryan Falchuk, President & CEO of Property & Liability Resource Bureau (PLRB), joins Bill Kanasky, Jr., Ph.D. to discuss several topics related to the insurance industry. Bryan shares some details on his background and describes what PLRB is, what they do, and the help they provide insurers/MGAs, service providers, and outside counsel. Bill and Bryan talk about current trends in the insurance industry, key issues around litigation, and Bryan describes how he used to manage litigation during his time as a Chief Claims Officer for an insurance carrier. Bryan shares his perspective on how the plaintiff's bar has increased their leverage in litigation and how players in the insurance defense industry are contributing to the current unbalanced situation.

Brent Turman, Partner and Trial Attorney with Bell Nunnally & Martin LLP in Dallas, joins Steve Wood, Ph.D. on the podcast to talk about the hit series Suits and ethical issues that surface on the show. Brent gives an overview of an ethics CLE he presents referencing episodes of the show. Steve and Brent discuss how issues that occur in different episodes can inform the appropriate approach to litigation including mock trials, witnesses, ethical questions, competing loyalties, depositions, and more. Watch the video of this episode: https://www.courtroomsciences.com/r/X66

JFK assassination expert Jefferson Morley joins Bill Kanasky, Jr., Ph.D. to discuss the latest updates on the JFK assassination including the recent executive order for a full and complete release of all JFK assassination records. Jefferson discusses what the FBI and CIA responses have been to the executive order, provides background on developments around digitization of some records, and his concerns about the delay of the records release since the executive order was signed. Jefferson and Bill also talk about the status of the lawsuit filed to get the JFK files released, share their thoughts on Jefferson's recent interview with Tucker Carlson, and discuss the recently surfaced audio tape that mentions LBJ's potential role in the JFK assassination. 

Bill Mitchell, Founding Partner of Cruser & Mitchell, joins Bill Kanasky, Jr., Ph.D. to discuss deal-making and negotiation in litigation and how to be disruptive lawyer. Bill Mitchell describes his philosophy on managing litigation and how he got started taking this unconventional approach to litigation management. Bill talks about three characteristics required to operate as a disruptive lawyer: #1 - legal acumen, #2 - proactivity, #3 -  emotional intelligence. The two Bills discuss several different challenging scenarios, how Bill Mitchell addresses them, and what he recommends other attorneys doing in those situations. Watch the video of this episode: https://www.courtroomsciences.com/r/Ur7

Bill Kanasky, Jr., Ph.D. shares insights with attorneys for witness prep prior to their witness's deposition testimony. Bill emphasizes that the most important thing for witnesses is to fail during preparation in order to learn and grow so they are prepared for their deposition. This approach can be a challenge for attorneys as you don't want your witness to get mad at you or you may have concerns about hurting their confidence during the prep. It is critical for the witness to understand that their failure during preparation has value and is actually necessary in order for them to be successful during testimony. As you start your mock questioning and you observe them failing, stop and give them feedback to build awareness of their performance. How you give them feedback is very important. You have to use operant conditioning and provide both constructive and positive feedback in order to punish poor performance -  to eliminate it - and reward good behavior - to increase it. The use of these psychological principles will help you fully prepare your witness by allowing them to fail during prep and providing them with the appropriate feedback so they are ready for the real thing.  Watch the video of this episode: https://www.courtroomsciences.com/r/hPR

Dr. Bill Kanasky, Jr. talks about the psychological concept of amygdala hijack, which is the fight or flight reaction, and whether to induce amygdala hijack in the plaintiff or plaintiff's expert at deposition. Bill discusses the considerations and situations in which defense counsel should and should not employ this approach and some ideas on how and when to do so: 1) Start the deposition with a surprise such as asking about a sensitive aspect of the case and apply pressure, something that you might have originally planned to do later in the deposition. This can induce a fight or flight reaction.  2) Properly use verbal and non-verbal emotion such as tone of voice, smirks, eye rolls, etc. when not getting the answer you want and then repeating questions. Amygdala hijack (fight or flight) is a neurochemical reaction that lasts inside the witness's system for 3-5 hours and gives you a distinct advantage.  3) Use your best exhibits early and don't wait until later in the deposition.

Medical malpractice trial attorney Tad Eckenrode joins Bill Kanasky, Jr., Ph.D. to talk about the latest issues they are seeing in med mal cases. Tad and Bill discuss developments they are seeing recently including the increase in the number of 7-figure med mal cases as well as more openness from defense clients on investing in jury research to understand what these cases are really worth to help inform whether they should settle or go to trial. Tad shares the value he sees in collecting insights from mock jurors early in the life of the case, particularly during discovery and especially prior to mediation, to help shape how he approaches the strategic plan for the case and to inform the mediator of what his research shows the case is really worth. Tad and Bill talk about Gen Z jurors, artificial intelligence (AI), and attracting and retaining associates and giving them experience to help them develop and learn. They also describe examples of different witness situations and the challenges with preparing witnesses in these scenarios, including working with the growing population of physician assistants and nurse practitioners. Lastly, Tad and Bill talk about the risks of witness pivoting and how to handle witnesses who come into deposition prep with a high level of anger. Watch the video of this episode: https://www.courtroomsciences.com/r/1EM

Bill Kanasky, Jr., Ph.D. joins host Steve Wood, Ph.D. to discuss five (5) problematic witness types. Steve and Bill talk about who these witnesses are, how to identify them, and how to work with each type of witness: 1) The overly agreeable witness - a witness who is willing to agree with everything opposing counsel says or implies;  2) The defensive witness - someone who wants to argue or won't agree with even basic facts;  3) The angry witness - a witness whose rage about many/all aspects of the litigation prevent them from working constructively with the legal team and/or who are defensive in their demeanor;  4) The apathetic witness - a witness who appears uncaring;  5) The experienced witness - a potentially arrogant witness who has prior experience with testifying and therefore may believe they know what to do and what to expect which could lead to a compromised performance during testimony.  Each witness type can potentially fall victim to fight, flight, or freeze responses. Fight is an argumentative response when a witness wants to argue and defend their actions. Flight is when the witness feels scared or triggered and responds in a way to pacify the questioner via explanations and sharing too much information. And the freeze response is when the witness simply agrees with the assertions of the questioner and doesn't want to contradict them. Effective witness training requires proper neurocognitive assessment of the witness to determine their cognitive, emotional, and behavioral state and an appropriate amount of time to identify potential psychological barriers that will prevent the witness from fully understanding and embracing the training and prep so their testimony can be effective. Watch the video of this episode: https://www.courtroomsciences.com/r/O5F

Bill Kanasky, Jr., Ph.D. shares ideas on how to upgrade your voir dire by applying measurement. One of the primary purposes of voir dire is to elicit information and Bill talks about ways to extract information from jurors to get accurate responses. Bill discusses how to handle oral questioning during voir dire, including the use of a 0-10 scale and asking jurors to give one reason for their number. After going over the scientific methodology for this approach to data collection, Bill talks about the art aspect of voir dire: the setup of the question, the answer set/options given to the jurors, and what to do with their answers. As an example, when you get negative information from a juror, you don't want to punish that juror with your reaction because you want to identify other jurors who share that same perspective so you can strike them. Reacting negatively to a juror's response could shut down other jurors who may feel the same way but want to avoid your negative reaction. Lastly, Bill talks about how to do this in Federal court or if you are really short on time. Watch the video of this episode: https://www.courtroomsciences.com/r/Psf

Steve Wood, Ph.D. and Bill Kanasky, Jr., Ph.D. answer the latest podcast listener mail:  - When doing jury research and there is a confidentiality issue, should I use real names or fake names? - Should I advocate when doing jury research?  - What are the benefits of a focus group over a mock trial? - How should I handle testing evidence that may or may not come in at trial? - What are the advantages and disadvantages of doing focus groups or mock trials virtually vs. in-person? - How much should I prepare my witness with information prior to their deposition?  - Do jurors make up their minds about the case right after opening statements? Watch the video of this episode: https://www.courtroomsciences.com/r/QEX  

Bill Kanasky, Jr., Ph.D. talks about witness preparation and the benefits of using an alternate questioner during mock questioning. Bill shares details on how the CSI witness training program works by building a foundation based on psychology. The first phase of the training is educational and focuses on cognition, behavior, and emotion and how the brain operates in its natural state and how we need it to work during testimony. Once the psychological foundation is built, then strategy can take place, which is the second phase of the training. Bill talks about the benefits of recruiting another attorney to roleplay plaintiff's counsel during the mock questioning portion of the witness training. Bill also shares ideas about how to leverage exposure theory and operant conditioning to help guide the witness during their mock questioning and how this is easier to do if you have an alternate questioner. Lastly, Bill suggests that including younger associates or early career attorneys in the witness preparation process is good practice for them, discusses how you know if your witness is ready for their testimony, and how to handle schedule changes with depositions. Watch the video of this episode: https://www.courtroomsciences.com/r/SZ9

Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. are joined by NYC trial attorney Tony Battista of Condon & Forsyth LLP in the second part of their discussion about a high profile trial they recently worked on together. The group talks about their approach for opening statements, how many drafts of the opening they had, how many versions they tested with mock jurors, and how they dealt with all of the bad stuff in their case in the opening. Tony shares his strategy for cross-examination and his philosophy on dealing with judges. Tony also discusses how he developed his closing for a 14-week trial and the group talk about how to define a win in any case. Bill, Steve, and Tony share how they maintained their mental and physical health during this lengthy trial preparation process and what some of their key takeaways were from working on this huge case. Lastly, Tony shares insights on how he gets the younger attorneys in his firm training and experience. Watch the video of this episode: https://www.courtroomsciences.com/r/VZF

Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. are joined by NYC trial attorney Tony Battista of Condon & Forsyth LLP in the first of a two-part discussion on trial techniques and details on a large aviation fatality case that they recently worked on together. Tony shares his background, talks about how he approaches highly complicated cases, and how he keeps a positive perspective when experiencing difficult days during trial. Tony describes how his team responds to an aviation accident at the time of the incident and what the legal team does to address the emotions of witnesses who are processing a highly tragic situation, including how they manage challenging depositions with these witnesses. Steve shares details behind the jury research conducted for this case and the group talks about the importance of testing and re-testing strategies, themes, concepts, and other ideas that the legal team have to ensure that research-support data are driving decisions and not individual team member biases. Tony, Bill, and Steve also discuss jury selection, the research-based juror profile they developed for voir dire and the importance of sticking with the data-supported profile even when it may seem counter-intuitive to some members of the legal team. Watch the video of this episode: https://www.courtroomsciences.com/r/FR3

Bill Kanasky, Jr., Ph.D. shares a list of dirty little tricks used by opposing counsel at deposition that can cause issues for witnesses who have not been trained and prepared for these devious tricks.  1. Repetition of questions (i.e., negative reinforcement)  2. Getting the witness on the Yes Train (lull the witness into an agreement pattern)   3. Using silence after a witness's answer to get the witness to share more  4. Asking for clarification on simple points   5. Being friendly (get the witness to drop their guard)  6. Appealing to the witness's ego   7. Asking the witness to help them understand a witness's answer   8. Triggering the witness to have an emotional reaction   9. Having witnesses check the box next to questions printed out on sheets of paper   10. Asking the witness personal questions, particularly about their family   11. Asking the witness a question while holding a document as if the question is on/from the document Watch the video of this episode: https://www.courtroomsciences.com/r/a3Q

Bill Kanasky, Jr., Ph.D. is joined by JFK assassination expert, journalist, and author Jefferson Morley to discuss the latest updates on the still unreleased government documents associated with the JFK assassination. Jefferson provides an overview of where things stand currently with release of JFK assassination documents, particularly with regards to the active litigation around these records' release. Bill and Jefferson compare and contrast the JFK assassination to the assassination attempts on President Reagan and President Trump. They also talk about what people may not know or realize about the JFK assassination. Lastly, Bill and Jefferson talk about the state of journalism today. Watch the video of this episode: https://www.courtroomsciences.com/r/dQe

Bill Kanasky, Jr., Ph.D. is joined by Associate Attorney Jeffrey Oates, Attorney Kristin Petty, and Attorney Jason Preciphs from the law firm of Roberts, Carroll, Feldstein, and Peirce. Bill's guests describe the diverse types of cases their firm works on, how their firm attracts and retains associates, and how they provide growth opportunities for their attorneys while also growing the firm. The group share how they talk to clients about getting early career attorneys in their firm the experience they need to be beneficial to the firm's clients. Bill asks the attorneys what surprised them about civil litigation when they first got involved in it and what advice what they would give to younger attorneys. The group have a discussion about artificial intelligence (AI) in legal, what their firm's philosophy is regarding AI, and how they use AI personally. Bill asks the guests how they talk with their clients about the definition of a win and how to help clients realize the benefits of working up cases earlier, particularly by using focus groups. Lastly, the group talks about how they each protect their mental and physical health and maintain a healthy work/life balance in a highly stressful environment and career. Watch the video of this episode: https://www.courtroomsciences.com/r/LfO

Bill Kanasky, Jr., Ph.D. talks about unique voir dire questions, particularly around damages, to help attorneys improve their jury selection process and to set the stage for openings. Bill gives examples of topics to ask about during voir dire that help to indoctrinate jurors. Some of the topics for questions Bill discusses: social inflation, lawsuit abuse, justice for the defense, commenting on articles/social media, anchoring, and open-ended questions. Watch the video of this episode: https://www.courtroomsciences.com/r/gYg

Bill Kanasky, Jr., Ph.D. talks about something all attorneys, but particularly early career attorneys, need to keep in mind when preparing witnesses for deposition. Sometimes witnesses come into deposition preparation with some trauma which could be related to the litigation, or from other sources, that may be triggered or further exacerbated by the litigation. It's important for the attorney to build trust with witnesses and not add to this stress in how they interact with and communicate with the witness. Bill explains the concepts of exposure theory and systematic desensitization and how attorneys need to approach witnesses they are preparing. Bill shares ideas for how to handle the initial meeting and conversation with witnesses to gauge their mental state and identify how they are doing emotionally. Let them share what's on their mind. You also need to be constantly assessing how they are doing as they could be fine but then get triggered after you start going into the details of the case. And this assessment needs to happen at each subsequent meeting with the witness. Watch the video of this episode: https://www.courtroomsciences.com/r/y8H

Bill Kanasky, Jr., Ph.D. talks about the critical importance of preparation for litigation, and particularly early preparation. Bill discusses the risks for the defense by not being prepared and the costs for not being prepared. Bill talks about steps to take before litigation even strikes: 1. Education: Identify people who will be involved in litigation and/or likely to get deposed in a future lawsuit and educate them on the litigation process and start to train them as witnesses in advance;   2. Review and edit all documentation: Policies & procedures; training manuals; employee handbooks; websites - the language in these materials often set an idealistic standard that opposing counsel will use against the corporation; review, edit, and update immediately. Communication and enforcement of the policies and procedures is key;  3. Review and revise hiring practices - Revisit your hiring practices to feel confident about your hiring protocols; hire an attorney to review your policies and procedures and hiring practices to identify your vulnerabilities;  4. Create a litigation crisis plan - Develop a plan and communicate it to all the key personnel; be sure everyone understands what to do and what not to do when there is an incident. Watch the video of this episode: https://www.courtroomsciences.com/r/ZrO

Jonathan Wohlwend, Associate Attorney at Bradley, joins Steve Wood, Ph.D. to talk about Name, Image, Likeness (NIL) and the legal implications around NIL. Jonathan provides background on what NIL is and is not, particularly within the context of college athletics, and describes how the process for NIL works for recruiting players. Jonathan defines what a collective is, the changes that have happened over the years around collectives, and their role in NIL deals. Steve and Jonathan also discuss several cases related to NIL. Lastly, Jonathan shares his past background as a JAG Officer and words of wisdom for attorneys who are earlier in the career.

Bill Kanasky, Jr., Ph.D. talks about the biggest mistake witnesses make during testimony: guessing. Bill describes why this happens, even in light of clear direction to not guess, and how to address it. Bill talks about the attention/behavior gap which is driven by the brain's native neurocognitive wiring and explains the two categories of reasons why witnesses guess: internal and external reasons.  Internal factors:  1. Witnesses experience shame and guilt for not knowing or not remembering something;  2. Witnesses don't want to hurt the case and/or want to win;  3. Witnesses have a fear of punishment. External factor: Plaintiff counsel. Lastly, Bill covers the four things your witnesses cannot say during testimony: 1. "I think..."; 2. "I believe..."; 3. "I assume..."; 4. "I probably....". Watch the video of this episode: https://www.courtroomsciences.com/r/UFC

Steve Wood, Ph.D. talks about seeing more and more examples of witnesses who are fighting with opposing counsel in their deposition or at trial, motivated by a desire to get their story across. Steve covers several reasons why pivoting like this is a bad idea including: arguing with a professional arguer is foolish; jurors view witnesses who pivot or argue with opposing counsel as less credible; the questioning attorney will call the witness out on this move; most witnesses aren't experienced enough to be selective about when to fight and when not to fight, leading to potential pitfalls. Steve highlights that witnesses need to own bad facts and move on. A fact is a fact. Witnesses and their attorneys need to develop a trust and attorneys should share their strategy on how they plan to get the witness's perspectives across to the jury without the witness having to pivot to get their points out. Watch the video of this episode: https://www.courtroomsciences.com/r/bcz

Bill Kanasky, Jr., Ph.D. talks about how to select experts for trial testimony. One option is to pick national experts and another approach is to choose an expert who is more local to the venue. Bill walks through some important considerations when selecting an expert witness:  - How much time does the expert spend testifying professionally? - How much of their income comes from testifying as an expert witness? - How effective as a witness are they in addition to being a subject matter expert? The decision about who would make the best choice as your expert depends on a number of factors: - What do mock jurors think about professional expert witnesses? To find out, do the research to learn how much that matters to jurors.  - How often does the expert testify for one side vs. the other? Jurors will have thoughts on this and you need to understand how they feel about any imbalance.  Oftentimes jurors prefer local/regional experts, however, they have to be a good witness and their testifying performance is as important as their expertise and local presence. The combination of all these considerations (local/national; percentage of income that comes from testifying; volume of work done for one side vs. the other; etc.) is what matters to jurors. Lastly, remember that juries don't make decisions on liability or damages based solely on expert testimony.

Bill Kanasky, Jr., Ph.D. and Ava Hernandez join host Steve Wood, Ph.D. for another edition of From the Trenches where they discuss recent observations and updates from jury research projects, witness trainings, and cases that the CSI team have been working on. First, they talk about how too many attorneys wait until close to trial to contact the CSI team for help with training witnesses for trial and/or jury research, or even jury selection, and the problems with waiting until the eve of trial to bring in help. They discuss the more appropriate timing to prepare witnesses for trial and why starting early is important, particularly with emotional or challenging witnesses, because of the significant time it takes for behavior change. Next, they talk about the pitfalls of having the witness's spouse present during their testimony and why the spouse should not be involved in a witness's deposition preparation nor in the courtroom. Ava shares how defense attorneys should prepare for aggressive plaintiff counsel questioning of emotional witnesses and how the training for these emotional witnesses needs to be handled during preparation. The team also discuss use of interpreters and how some witnesses for whom English is a second language sometimes request an interpreter for their deposition, however, they are fluent enough that an interpreter is not needed and actually creates a credibility issue. Lastly, the group talk about how the qualifications of an expert witness do not always translate to a strong performance during testimony. Watch the video of this episode: https://www.courtroomsciences.com/r/PJQ

Paul Motz, Shareholder and Trial Attorney, at Segal McCambridge Singer & Mahoney joins Bill Kanasky, Jr., Ph.D. to dispel several myths around litigation and talk about what's fact and what's fiction. Paul and Bill discuss whether jurors hate corporations, whether the person most knowledgeable should always serve as the corporate representative, whether someone who has been deposed many times before is a good witness for subsequent depositions, whether witnesses can win the case at deposition, whether witnesses are more vulnerable during a Zoom deposition, when to prep witnesses for trial, whether the former employee is always a horrible witness, whether mock trials are superior to focus groups, and whether witnesses with tattoos or piercings have credibility issues with jurors.

Steve Wood, Ph.D. joins host Ava Hernandez to discuss his background and how he got into the litigation consulting business. Steve shares details on his education and his interest in how people make decisions which he applies to his role as a litigation consultant. Ava and Steve also talk about their fascination with how people behave and in particular how people's perspectives are influenced by their interactions with others especially within the context of the litigation process. Steve discusses the changes he has seen in litigation since he started as a litigation consultant and the aspects of litigation research that he finds the most fascinating. Lastly, Ava and Steve discuss the importance of humanity in the approach to litigation, even in an adversarial business. Watch the video of this episode: https://www.courtroomsciences.com/r/KgM

Bill Kanasky, Jr., Ph.D. talks about how to manage stress during trial. Bill shares the three areas to focus on: physical health, emotional health, and mental health.  Physical health keys:  1. Protect your sleep - really important to get plenty of restful sleep.  2. Exercise - get your body moving, even if its just for a few minutes by taking a walk or a short run.  3. Eat right - you have to eat well and eat right; ignoring your diet is a recipe for poor performance.  Emotional health: To preserve your emotional health, focus on making a self health plan. Carve out time for your family, every day during the trial.   Mental health keys: Maintain positive thinking patterns. Avoid negativity and second-guessing. Control your emotions and avoid amygdala hijack. Watch the video of this episode: https://www.courtroomsciences.com/r/UvM

Nationally recognized and renowned memory expert Dr. Elizabeth Loftus joins Steve Wood, Ph.D. for the second part of their discussion about memory, where they talk about repressed memories. Dr. Loftus shares her experience working on cases where repressed memories were at the core of the case and the research she has done on repressed memories and false memories. Steve and Elizabeth discuss the ways in which she has been challenged and attacked for her research and the work she has done around repressed memories. Lastly, they talk about how Dr. Loftus acts as an investigator on the cases she works on.

Bill Kanasky, Jr., Ph.D. answers another round of podcast listener mail: - What is the best timing for witness training? - What is the best routine for the witness the morning of the deposition?  - How do you deal with catastrophic injury and death cases every week? - How long should focus groups be? - Any updates on nuclear verdicts and how to prevent them? Watch the video of this episode: https://www.courtroomsciences.com/r/yn6

Nationally recognized and renowned memory expert Dr. Elizabeth Loftus joins Steve Wood, Ph.D. for the first part of a two-part episode about memory. Dr. Loftus is a Distinguished Professor at University of California-Irvine and has consulted on the issue of memory for hundreds of civil and criminal cases throughout her career. Dr. Loftus shares her background on how she got into the study of memory and eyewitness memory, in particular. Dr. Loftus describes the three major stages of eyewitness memory, the malleable nature of memory, and gives examples of research studies that she has been involved with, including research on suggestions, leading questions, and semantics. Steve and Beth talk about the impact of stress on memory, the misconceptions about memory, and the types of cases that Dr. Loftus has been involved with where memory is one of the core issues, including the Martha Stewart insider trading case. Lastly, Steve and Elizabeth talk about misinformation, memory contamination, and the "I don't remember" and "I don't recall" responses of witnesses at deposition.

John E. Hall, Jr., Partner with Hall, Booth, Smith, P.C. joins Bill Kanasky, Jr., Ph.D. to talk about the trial process. Bill and John discuss preparation for trial, managing stress leading up to trial, as well as, managing stresses during trial. John shares the strategic approach his team employs to prepare for trial and how he works with his trial team. John and Bill talk about how to stay focused on trial matters while there may be conversations taking place about settlement, as well as, how to deal with opinions and ideas from other stakeholders such as insurance carriers, reinsurance, excess, etc. They talk about how to handle judges that may not be favorable toward the defense, the importance of strategic objections, and managing clients at trial. Lastly, Bill and John discuss the differences between the plaintiffs bar and defense bar with regards to collaboration, the structural issues that encourage the sharing on the plaintiffs side and limit it on the defense side, and solutions to providing younger attorneys with more opportunities to learn and become better trial attorneys. Watch the video of this episode: https://www.courtroomsciences.com/r/sV8

Legal Sector Analyst and Forecaster Jordan Furlong joins host Ava Hernandez to discuss a range of topics around the future of legal including shifts in market expectations, the development of early career lawyers, and changes in the business of law. Jordan and Ava talk about how law firms must reconsider and reimagine their approach to their purpose. Jordan highlights  how the development program for new associates needs to change, in particular due to the impact AI and other technologies are having on lower-level legal work. They discuss generational divides in law firms and how successful firms are managing the mix of generations in their firms. Ava and Jordan also speak about the expectations of clients today, how difficult it is for firms to adapt to these changing client requests, and the lack of trust on both the law firm side and the client side when considering changes. Lastly, Jordan and Ava talk about how millennials can position themselves to be the type of lawyer they want to be. Watch the video of this episode: https://www.courtroomsciences.com/r/Rk1

As a follow-up to Part 1 (Episode #220) of what not to do in opening statements, Bill Kanasky, Jr., Ph.D. talks about what to do in your opening statements. Bill discusses a few key principles for delivering opening statements: the speed of delivery, eye contact, repetition, pausing/using silence, movement, volume, and telling the jurors what you want. Bill talks about primacy and recency effects and leveraging them in the delivery of an opening statement and also defines and describes the cognitive lens and how it should be used to frame your case. Bill breaks down why a shorter opening statement is critical and how much time should be spent on each element of the opening. Watch the video of this episode: https://www.courtroomsciences.com/r/WOQ

Michael “Mick” Williams, Ph.D., Founding Member of The Science of P/CVE & Shawn C. Marsh, Ph.D., Director of Judicial Studies and Associate Professor of Communication Studies / Social Psychology at the University of Nevada, Reno join Steve Wood, Ph.D. to discuss the concept of Terror Management Theory and its implications on civil litigation. Mick and Shawn define what Terror Management Theory is, how Terror Management Theory relates to the Reptile Theory and Edge Theory, and what the evidence and implications are for juror decision making related to concepts of mortality. The group also discuss some of the research and subtle ways in which jurors can be influenced to drive specific perceptions and decisions. Shawn describes how stress, environmental factors, humanizing defendants and corporations, and other worldviews also can be used to influence jurors. Mick, Shawn, and Steve discuss the role of self-esteem and anger in the litigation process and lastly talk about implicit bias and what role it plays on jurors, attorneys, and judges. Watch the video of this episode: https://www.courtroomsciences.com/r/fWm

In the first of a two-part episode, Bill Kanasky, Jr., Ph.D. talks about opening statements and what not to do in your opening statement. First, Bill explains the primary reasons why opening statements fail:  1) Attorneys don't get formal training on how to construct an opening statement; 2) Attorneys don't have an understanding of how the juror brain processes information; 3) The games our minds play on us; 4) Many attorneys have less experience and opportunity to do opening statements because fewer cases go to trial.  Bill shares what not to do in your opening statement: - Do not introduce yourself to the jury;  - Don't thank the jury for their civic duty; - Don't start your opening with a corny story or a joke;  - Don't discuss the role of the jurors;   - Don't go on too long;   - Don't read your opening statement from a legal pad or a tablet;   - Don't go on the defensive. In part 2, Bill will discuss what you should do in your opening statement. 

Attorney Chris Turney of Turney LG joins Bill Kanasky, Jr., Ph.D. to discuss inflated settlements and verdicts. Chris describes what he believes are the factors that are influencing and effecting outsized settlements and verdicts and walks through a 4 quadrant concept to help explain what is happening. Chris defines what he refers to as direct actions, indirect actions, intentional actions, and unintentional actions and provides examples and details for each quadrant. Chris and Bill discuss verdict shaming, spike evaluations, storytelling, generating interest for the jury, and how to talk to clients about investing in weaponry. Lastly, Bill and Chris talk about preparing and training witnesses for deposition, particularly witnesses who are wrestling with stresses that are outside the litigation. Chris emphasizes the importance of getting down into the trenches with your witnesses and really understanding their perspective and challenges, plus how to deal with personal questions at deposition. Watch the video of this episode: https://www.courtroomsciences.com/r/7w6

Ava Hernandez, M.A. joins Steve Wood, Ph.D to talk about her background and how she got started in the litigation consulting field. Ava shares how she spent the early part of her career working in law firms, including both plaintiff and defense firms, then got interested in psychology, went back to earn her Masters in Clinical Psychology, and then ended up at Courtroom Sciences as a Litigation Consultant. Ava talks about what type of cases she enjoys working on and why the application of psychology in litigation is so interesting to her. She shares how important it is for her to help people and her fascination with understanding why people think the way they do and believe so strongly in what they believe in. Ava and Steve talk about how they manage feedback from jurors that may seem nonsensical since those thoughts and comments do make sense to the person sharing their perspective. Lastly, Ava shares how her experience working with plaintiff attorneys gives her an advantage when working on the defense side. Watch the video of this episode: https://www.courtroomsciences.com/r/dEs

Holly Howanitz, Managing Partner, Tyson & Mendes joins Bill Kanasky, Jr., Ph.D. to talk about cross-examination of expert witnesses. Holly highlights that you need think about your goals when cross-examining expert witnesses especially since experts often have more experience testifying than a fact witness. Bill and Holly talk about strategic decisions such as when to bring up "bombs" for the expert either at deposition or at trial and how to approach preparing for cross-examining an expert. Holly shares how she prepares for an arrogant expert or an expert that does primarily work for the plaintiff's side. Bill and Holly also talk about preparing experts for the defense and what that process is like. Watch the video of this episode: https://www.courtroomsciences.com/r/fO6

Kent Doll, Trial Attorney & Owner, KND Law joins Bill Kanasky, Jr., Ph.D. to share his litigation philosophy, Bill and Kent discuss the difference between a trial attorney and a litigator. They discuss trial technology and Kent's approach to jury selection and how important it is to get jurors to open up and share so you can understand their biases and perspectives. Bill and Kent talk about opening statements and closings and Kent shares the advice he would give to attorneys in the early part of their career and thoughts on managing mental health in a highly stressful job.  Watch the video of this episode: https://www.courtroomsciences.com/r/CMp

Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. conclude our med mal litigation series by talking about trial preparation for medical malpractice cases. Steve and Bill discuss important tips about managing and preparing witnesses for trial testimony, working with witnesses as early as possible before trial, and helping them understand the difference between direct and cross examination and what to know if they are called adversely. They emphasize how important it is for witnesses to be completely familiar with their deposition testimony and to keep their responses to questions short so that jurors can follow along. Bill and Steve also talk about voir dire and misperceptions about what types of people make "good" jurors or "bad jurors" and how demographics or occupations are poor predictors of juror perspectives. Lastly, they discuss opening statements in med mal cases and how and why to leverage the cognitive lens in your opening statement.