The Litigation Psychology Podcast

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.

Triple board-certified legal nurse expert Marilyn McCullum, joins Bill Kanasky, Jr., Ph.D., to talk about her experience as an emergency room nurse expert witness. Marilyn works with attorneys on both sides to review emergency room medical records, which can be more nuanced than regular medical records. Marilyn talks about the differences between working with plaintiff and defense attorneys and her experience and philosophy for depositions. Marilyn also shares her thoughts about the ER triage process and how she manages being asked to criticize the performance and decision making of nurses and physicians. She also talks about the challenge of communication issues with the number of healthcare personnel who may be involved in ER cases. Lastly, Bill and Marilyn discuss policies and procedures, the standard of care, and the toughest cases they work on.

Bill Kanasky, Jr., Ph.D. defines the competence trap with witnesses. Bill shares why there is often a perception that witnesses who are highly competent in their jobs will perform really well as witnesses during testimony and why this often isn't true. He describes several reasons why some witnesses who are highly skilled in their professional positions may not make good witnesses. Bill talks about having to break down and rebuild highly accomplished witnesses in order to get them ready for success at deposition.