The Litigation Psychology Podcast - Episode 291 - Listener Mail

Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. answer another batch of podcast viewer and listener questions: • When is the right time to conduct a focus group—should I wait until discovery is complete? • Can I test my opening statement in front of staff members or family? • Why is it important to test opening statements with mock jurors? • Should a consultant or moderator sit inside the jury deliberation room during a mock trial? • What are the most common trial mistakes defense attorneys make in opening statements, voir dire, and cross-examination?

Bill Kanasky, Jr., Ph.D. breaks down why the single most powerful testimony tool in depositions and trial is the disciplined use of “No” or “I disagree”, followed by silence. Bill explains how witnesses get into trouble when they add explanations after a comma (“No, because…”), which leads to defensive or evasive answers and creates damaging credibility issues. Instead, he emphasizes a strategy rooted in cognitive science: reject the premise cleanly, elevate tone and composure, and force opposing counsel into an open-ended follow-up like “Why?”, which gives the witness more time to think and respond from the logical (not emotional) part of the brain. Bill also clarifies common misconceptions about witnesses who answer with "No" appearing evasive, why jurors dislike pivoting or arguing witnesses, and how “reject and elevate” protects credibility while maintaining emotional control. He explains how witnesses can later provide explanations, during defense follow-up at deposition or rehabilitation at trial, without exposing themselves to attack when they’re under pressure.

Bill Kanasky, Jr., Ph.D. expands on the “disruptive voir dire” approach, focusing on how to neutralize juror confirmation bias, which is one of the most dangerous psychological forces in the courtroom, and in life. Bill explains why all humans are hardwired to make rapid, belief-driven judgments and how those cognitive shortcuts can lock jurors into the plaintiff’s narrative before the defense even begins its case. He outlines a structured voir dire method that exposes confirmation bias directly. Bill emphasizes the importance of normalizing confirmation bias through the sharing of personal examples and guiding jurors to reflect on times when they changed their minds after learning more. By forcing jurors to engage cognitively rather than reactively, attorneys can dramatically reduce the likelihood of premature, biased conclusions. Bill closes with specific question structures and strategic sequencing that reprogram juror thinking and prevent snap judgments during trial.

In this episode, Bill Kanasky, Jr., Ph.D. explains why most defense teams misuse jury research by relying solely on a single mock trial and skipping the exploratory phase required by the scientific method for validity and reliability. Bill breaks down how early focus groups are critical in revealing juror confusion, hidden vulnerabilities in your case, and dangerous misconceptions that mock trials are unable to uncover. He also emphasizes that early exploratory research can shape discovery, expert strategy, themes, and voir dire long before mediation or trial. Bill warns that when defense teams skip this exploratory step, they enter mediation and trial preparation with major blind spots and lacking data while the plaintiff’s side often has extensive exploratory data and ammunition, which is particularly impactful with mediators. Bill closes by urging defense counsel to adopt a disciplined, phased research process that begins early with exploratory focus groups to reduce risk and improve litigation outcomes.

Steve Wood, Ph.D. and Linda Khzam, M.A. break down the topic of hindsight bias and its impact on juror decision-making. They explain how learning an outcome makes jurors believe it was predictable all along, leading to exaggerated foreseeability and unrealistic expectations of what defendants “should have known.” Steve and Linda discuss how hindsight bias appears across different case types from trucking and transportation to incidents involving police officers to decades-old sexual assault and molestation cases where jurors often apply modern norms and knowledge to past events. They also highlight how technology, especially video evidence, further expands hindsight bias by giving jurors clarity and insight that defendants never had in real time. Steve and Linda also cover counterfactual thinking (i.e., “If only they had done X”) and how plaintiffs use it to oversimplify causation. Lastly, they outline how defense counsel can confront hindsight bias during voir dire by using relatable examples and consistently reframing what was knowable in the moment rather than after the fact.

Bill Kanasky, Jr., Ph.D. discusses a recurring problem in wrongful death cases: jurors’ tendency to mistakenly believe their job is to assign a monetary value to a life. Bill explains how this cognitive shortcut often leads to inflated damage awards because jurors default to emotional reasoning rather than following the legal instructions. To prevent this, Bill emphasizes that the issue must be addressed proactively during voir dire. He outlines a process that begins with exposing the problem - acknowledging that jurors will naturally think, “How do we put a value on a life?” - and then clearly explaining that the law does not ask them to do that. Instead, jurors are asked to compensate surviving family members for measurable economic and emotional losses. Bill walks through a step-by-step strategy for correcting this misconception: expose and normalize the cognitive shortcut, redefine the juror’s task in line with the law, and secure public, verbal pre-commitments from jurors to follow the court’s instructions. He also recommends going a step further by asking jurors to commit to keeping one another on track during deliberations. Bill concludes by noting that this structured approach not only prevents confusion and emotional decision-making by jurors but also strengthens the defense’s position by grounding jurors in rational, law-based reasoning right from the start.

Bill Kanasky, Jr., Ph.D. talks about several issues he sees with opening statements. Bill highlights the biggest issue the CSI team comes across in opening statements: starting the opening statement in the wrong spot. Bill emphasizes the importance of the first two minutes of the opening and how those first two minutes frame how you want the jury to see your case (i.e., the cognitive lens.) The first thing that the defense attorney has to do in their opening is put someone or something else on trial, state emphatically what the case is about, and not talk about what the case is not about, which only reinforces the plaintiff's perspective. The goal with the opening statement is to reframe what the plaintiff presents in their opening. The next issue Bill discusses is how lengthy opening statements that include the attorney thanking the jury for their service, talking about themselves or their client, or sharing a story from their childhood are a waste of those critical first two minutes in front of the jurors. What attorneys have to realize is that jurors don't remember facts and details; they remember how you made them feel. Lastly, Bill talks about the importance of testing opening statements with mock jurors. Getting direct feedback from jurors and practicing the delivery and story is a critical, but often skipped, step in the trial preparation process and attorneys who do not test their opening statements with mock jurors in a focus group risk their entire case.

Bill Kanasky, Jr. Ph.D. shares a comparison between two different performances by witnesses at a recent mock trial and how their deposition performance impacted jurors' perceptions of the credibility of the witnesses and jurors' views of the case. One of the witnesses gave several pivoting responses, using phrases like "Yeah, but...." many times, which the jurors found evasive and did not like. Bill talks about how to handle situations where witnesses are asked questions related to bad facts or potentially problematic information and describes a much better approach than pivoting or arguing with the questioning attorney. Bill emphasizes the importance of owning your conduct and why that's the best way to diffuse this line of questioning from opposing counsel. Lastly, Bill addresses how to help witnesses address accusatory questions without pivoting.

Bill Kanasky, Jr., Ph.D. talks about what attorneys and defendants get wrong about jury research. Defense teams that follow the traditional jury research model and only conduct mock trials ignore the scientific method. If you want results you can have confidence in, you have to follow the proven scientific method. Bill describes the two biggest issues with mock trials: - conducting a mock trial as the first, and often only, research project invites a significant amount of error into your results, risking false positives and false negatives - mock trials are built on argument and persuasion and when presentations are not balanced and when the presenters for both sides are not equal in their communication skills, their persuasion skills, and their appeal to jurors, significant bias can skew the results The solution is to follow the scientific method and conduct focus groups before the mock trial. Focus groups allow the defense team to find hidden vulnerabilities and juror comprehension issues and avoid false positives and false negatives well before conducting the confirmatory research step that is the mock trial. The focus group is the necessary screening tool for litigation.

Bill Kanasky, Jr., Ph.D. discusses setting proper expectations when it comes to managing litigation and the relationship between each element in litigation. For example, Bill highlights that success in trial depends on a constellation of factors, not just one element like jury selection, and that defense teams often place too much weight on a single component while neglecting others. He explains that having a consultant present for jury selection without supporting jury research is ineffective, comparing it to a surgeon operating without diagnostic scans. Meaningful jury selection requires data to build juror profiles and well-structured, insightful questions and follow-ups to extract useful responses to identify safe and risky jurors. Bill stresses that winning cases demands balance across all stages of litigation: witness training for both deposition and trial, early and iterative jury research, scientifically-based voir dire, and tested and compelling opening statements. He notes that even a perfect jury selection is useless if the attorney is delivering a poor opening statement or putting up unprepared witnesses, and that cutting corners in these areas leads to predictable losses. Instead, he urges defense teams to invest in comprehensive preparation and ongoing training to strengthen performance across the board. Lastly, Bill shares a recent example of a defense verdict that came down to witness credibility and preparation. He outlines the techniques that led to success including the witness controlling the pace, avoiding argumentative “pivoting,” and keeping testimony clear, concise, and authentic. He closes by encouraging law firms to adopt structured, science-based training for attorneys to move the needle toward more consistent defense wins.