The Litigation Psychology Podcast

The Litigation Psychology Podcast - Episode 96 - The Problems with Juror Instructions

Dr. Steve Wood and Dr. Bill Kanasky, Jr. talk about the problems with juror instructions. So many times, jurors don't understand them, don't pay attention to them, don't read them, are too long, etc. The biggest issues that jurors struggle with understanding are causation, burden of proof, negligence, past economic and non-economic damages, future economic and non-economic damages, and allocation of fault. 
To help jurors understand causation they must be educated and indoctrinated about causation beginning in jury selection, then repeating during opening and then again during closing so that by the time they get to deliberations, they have heard it a few times. For many jurors, burden of proof is confused with "beyond a reasonable doubt" due to their lack of understanding and what they have seen in TV shows and movies. Jurors don't understand the legal definition of negligence and is often just assumed to exist simply because there is a bad outcome. Jurors are very confused by past economic and non-economic damages and also by future earnings damages. Jurors do seem to get punitive damages and allocation of fault, for the most part, however, they tend to start their discussion around allocation of fault, which is not where they are instructed to start. The podcast wraps up with Bill and Steve answering viewer mail about witnesses responding with "it depends",  the pros and cons of blaming the plaintiff, and advantages of a mock trial with deliberations with fewer jurors vs. individual surveys of a much larger sample. Watch the video of this podcast: https://www.courtroomsciences.com/r/50F

The Litigation Psychology Podcast - Episode 95 - Winning Before Trial

This week's guest is Charles Price who manages litigation for Eaton Corporation and is a professor at the University of Akron where he teaches a law school course called Winning Before Trial. Charlie and Dr. Bill Kanasky, Jr. talk about differences between law schools and the background behind the Winning Before Trial course, which focuses on understanding psychology, economics, statistics, accounting, neuroscience in the application of law. They also discuss the changes that have taken place over the years with trial attorneys and the challenge of getting trial experience these days, particularly for younger attorneys. Charlie shares his perspective on the differences between serving as in-house counsel vs. working for a law firm and comments on the high turnover with millennial attorneys. He describes the approach that Eaton takes to develop early career talent to address the turnover issue and how they get less experienced attorneys more exposure and opportunities to help them grow. Lastly, Charlie talks about his blog winningbeforetrial.com and Bill shares the importance of being proactive on prevention and pre-litigation planning and training. Watch the video of this episode: https://www.courtroomsciences.com/r/UiD

The Litigation Psychology Podcast - Episode 94 - Critical Steps for Trial Preparation

In this episode, Dr. Bill Kanasky, Jr. reviews the critical steps that need to be taken when preparing for trial. Bill shares a trial preparation to-do list which includes:
- Making a schedule and plan
- Setting up witness preparation sessions, either for the first time or refresher sessions if the trial was delayed due to Covid. Witness training (not just telling) must focus on the keys to delivering strong testimony and training on the 3 biggest mistakes made by defense witnesses during rehabilitation or direct examination: sharing too much information, volunteering information, and going too fast
- Determining what the courtroom setup will be as many courtrooms are now set up differently due to Covid 
- Voir dire and jury selection questions and plan, including the filing of a motion to use a supplemental juror questionnaire to identify sensitive topics, particularly related to, or exacerbated, by the pandemic. Bill goes through a number of sensitive topics that are crucial to address during jury selection such as mental health issues, mask mandates, financial issues, vaccinations, etc.
- Opening statement development strategy and approach, including presenting a research-supported alternative damages figure
- Closing arguments by summarizing key arguments and repeating the alternative damages number from voir dire and opening statements
Watch the video version of this podcast: https://www.courtroomsciences.com/r/hQt

The Litigation Psychology Podcast - Episode 93 - Applying Sports Psychology to Litigation

In this episode, Dr. Steve Wood and Dr. Bill Kanasky, Jr. talk about the relationship between sports psychology and litigation. They discuss the concept of forcing cognition, which is a gap of time that a witness is trained to take during questioning in order to maximize cognition prior to any response. Bill and Steve share examples from sports and explain how forcing cognition addresses the biggest mistake that witnesses make, which is the speed at which they answer questions. Steve and Bill also discuss the importance of relaxation training to help address the nervousness of witnesses and another technique that sports psychologists teach: the skill of positive thinking. They talk about how critical it is for witnesses to be taught to reframe negative events and negative stimuli to prevent themselves from falling into plaintiff attorney traps or losing focus during questioning, which can lead to disastrous outcomes. To watch the video version of this episode: https://www.courtroomsciences.com/r/oCI

The Litigation Psychology Podcast - Episode 92 - Pre-Litigation Preparation and Double Anchoring

Dr. Bill Kanasky, Jr. describes pre-litigation preparation and talks about the importance of investing in these tools before clients are involved in litigation. Bill shares how more and more clients are proactively evaluating, assessing, and training potential corporate representatives and expert witnesses in advance of litigation. The 30(b)(6) witness is a really important role and making sure the best representatives are selected is critical. Potential corporate representative and PMK candidates are put through an advanced neurocognitive witness training and then tested with mock deposition questioning to help clients evaluate a witness' potential and opportunities to improve before they are called to testify at deposition. This pre-litigation training is being used for corporate representatives, safety directors, physicians, and others and helps them be confident and ready in advance of litigation. Dr. Kanasky also shares his insights on the concept of double anchoring. He describes the importance of conducting jury research to test admitting liability and alternate damages figures and attacking the plaintiff's number by presenting a reasonable counter amount. Testing different figures with multiple mock juries allows you to find a number that won't be perceived by the jury as low-balling and helps you develop a strategy for how to approach presenting alternate damages figure. To watch the video of this episode: https://www.courtroomsciences.com/r/Lyd

The Litigation Psychology Podcast - Episode 91 - Bad Behavior and the Implications for Jury Selection

Dr. Steve Wood and Dr. Bill Kanasky, Jr. team up to talk about the increased incidents of aggressiveness and violence that we are witnessing on airplanes, at airports, sporting events, and more. Steve and Bill talk about what these fights and bad behavior mean for the jury pool since the people involved in these fights are jury eligible. They discuss the psychology behind this behavior and what they are seeing in mock trials in the behavior and decision making of mock jurors since the start of Covid. They also talk about what attorneys need to be aware of during jury selection in terms of the mental health of jurors, as well as the emotional state of witnesses prior to their testimony at either deposition or trial. Steve and Bill share examples of what mistakes and assumptions defense attorneys are making about jurors and how those assumptions are hurting them in case outcomes, plus what the plaintiffs bar is doing to win more cases. Lastly, they highlight the diversity of these ever-increasing examples of bad human behavior which cut across all races, genders, age groups, geographies, occupations, etc., creating even more of a need to do a proper, scientific assessment of witnesses and jurors in your litigation. To watch the video version of this episode: https://www.courtroomsciences.com/r/2oK

The Litigation Psychology Podcast - Episode 90 - Physical Fitness for the Legal Profession

Brian Thompson, Founder of Law & Motion, joins the podcast to talk about physical fitness for attorneys and others in the legal profession. Brian is a practicing attorney who made a lifestyle change at the start of his legal career to put more of a focus on his physical fitness. He talks with Dr. Bill Kanasky, Jr. about the stresses of the attorney profession and how those demands make it easy to put off being healthy and physically fit and what some tips are to overcoming these obstacles. Bill has experience with clinical research on physical fitness and shares results from his dissertation on why people quit exercise programs, which is the biggest challenge with any exercise regime. The top two predictors of why people stop exercising are pain (overdoing it) and illogical, unmet expectations. Bill asks Brian to weigh in on how to address these predictors of why people stop exercising and they also talk about the necessity of a strong, healthy diet in addition to a solid exercise plan. Lastly, Brian shares his thoughts on fad diets, how to think about the gym as the practice ground for where you practice for your daily life activities, and how to make a plan for better health and physical fitness. Watch the video version of this episode: https://www.courtroomsciences.com/r/LWL

The Litigation Psychology Podcast - Episode 89 - Evolution of the Trucking Industry

Jay Blobner, Senior Safety & Risk Manager with International Transportation Services Inc., joins the podcast to speak with Steve Wood, Ph.D. about how the trucking industry has changed over the years. Jay shares a bit about his extensive experience in the transportation field and talks about the changes he has seen in the trucking industry over the years. He also gives his thoughts on what he would like to see the industry put more focus on and the biggest challenges he sees in the trucking industry. Steve and Jay talk about how important it is for defense attorneys who are working with trucking clients to know and understand the trucking and transportation industry and how investing in learning more about the industry builds their credibility and helps them during litigation. They also discuss nuclear verdicts and Jay shares what he's implemented to do more due diligence on drivers prior to hiring and what he emphasizes during onboarding and training. Lastly, Steve and Jay share their thoughts on the opportunities to better market and promote the value that truck drivers and the trucking industry deliver. Watch the video version of this episode: https://www.courtroomsciences.com/r/PII

The Litigation Psychology Podcast - Episode 88 - Litigation and Insurance Defense

Chantal Roberts, Principal & CEO of CMR Consulting, joins the podcast to talk about litigation and the insurance industry. Chantal serves as an expert witness for claims handling standards and procedures and has a wealth of knowledge about the claims process. Chantal and Dr. Bill Kanasky, Jr. talk about the shortsightedness of the insurance defense industry and what the reasoning is behind how insurance companies approach litigation. They discuss how an investment earlier in the litigation process by insurance companies could manifest in significant cost savings. They talk about how claims departments adjust claims, the relationship between primary carriers and excess carriers and how they can, and should, work together and collaborate for better outcomes. Lastly, Chantal shares her perspective on the workload that adjusters manage, the burnout, and how that leads to the mishandling of files. Watch the video of this podcast: https://www.courtroomsciences.com/r/pm4

The Litigation Psychology Podcast - Episode 87 - Attorney Credibility

Steve Wood, Ph.D. talks about what he's been witnessing lately with attorney presentations in mock trials and focus groups, how those attorneys are being perceived by mock jurors, and the impact that has on jurors' impressions of the attorney's credibility. Steve shares the research and insights he's collected on attorney credibility and the impact attorney credibility has on case outcomes. Persuasiveness and credibility are impacted by likeability, similarity, and physical attractiveness, plus trust. Steve offers suggestions on what younger attorneys, in particular, can do to become better and strong presenters and exude more credibility. He also talks about approachability and authoritativeness and the importance of finding the balance between the two to establish trustworthiness and credibility with jurors. Watch the video version of this episode: https://www.courtroomsciences.com/r/1tM