#325 - The Current Litigation Landscape: A Defense Attorney's Perspective

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