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
Full Episode Transcript
[00:05] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Corporate Sciences. I am Dr. Bill Kanasky. As you can see behind me, coming to you live from the LAX Hilton. Just got to LAX, folks, about five and a half hours on that trip. Thank you, Delta, for making that very comfortable and the first great, the first-class upgrade. Always the way to go, always the way to go. Um, I was able to catch a couple Z’s on that flight. I am beat. I look like I’ve been hit by a train. However, I’m gonna still bring you the podcast because there’s an important topic, uh, that’s coming up a lot lately, which we haven’t had to deal with for a while: trial preparation.
A lot of trials going forward. Uh, this phone is ringing non-stop. In fact, I’m gonna put it over here so I don’t have to look at it. Um, trial prep. We’ve got to get back into the trial prep mode and a lot of us haven’t done that in a while. So I think we could go over the to-do list, which I think is really important. I’ve been doing this almost every week for the last several months here, getting clients ready for trial. And you know, it’s, it’s something that if you don’t use it, you lose it. And so we’ve got to get back into, uh, game shape, right? And be ready to get back in the courtroom, which is going to bring some new challenges.
[01:37] Bill So number one on my list, um, and this is always a difficult one, is you’re gonna have to call your, your clients, your witnesses, and say, “Oh by the way, we’re gonna have to start blocking off time. Uh, we’re gonna have to get to trial prep mode. We’re going to set up meetings. You’re going to have to get copies of everybody’s depositions and start assigning homework.” Now, most of your clients or key fact witnesses have probably put your case on the back burner. Uh, they’ve not been thinking about it. They’re thinking of, they’ve been thinking about a million other things. And now they’re gonna have to get back, uh, in, into that mode. So I think the first thing to do: get on the phone, maybe get on the Zoom calls, or just have a team meeting with your clients and say, “Hey, you know, now we have a trial date. This is going to be our calendar going forward, and this is what we’re going to need from everybody,” because everybody really needs to jump in with both feet. That’s going to be really, really important because the back burner stuff’s not, going to, not going to work anymore. And so that’s really the first step, and make sure you get everybody’s head straight. You’re going to have a ton of questions. Clients, you know, “When’s the trial day? Same courthouse? What are the updates in the case?” Maybe some discussions you haven’t had in a while, and that’s going to be really, really important.
Number two is setting up witness preparation sessions. You know, a lot of these, a lot of these trials were postponed, and so we’ve already gone through witness prep maybe a year ago or six months ago, and now we’re going to have to get back into that mindset. And what that’s going to involve is, generally with us, is a booster session. Going through our training from Courtroom Sciences to, uh, didactic training to run these witnesses through, get them up to speed, right, cognitively on these, um, skills which are really important for the courtroom. And even if we’ve been over them already, there’s some decay that happens over time. And so we’re going to have to re-educate them, take their questions, and go through that training process again. I know it’s a real pain, but it’s really important because that’s what your adversary is going to do, um, as well.
[04:04] Bill Now remember, you know, deposition prep is much different than, than trial prep, and it always has been. One of the, the new challenges here is what the courtroom setup is going to be like, what the parameters are going to be. And I don’t think I’ve seen the same setup twice in the last several months as far as what the local or county or judge’s rules are going to be. Are you wearing masks? Are you not wearing masks? Are you limited to the amount of people in the courtroom as far as your, your trial team? There’s a lot of homework to do and sometimes they don’t even tell you til the very end, which is, which is, uh, anxiety-producing, uh, to say the least. So those are, those are questions that you’re gonna need answers to because your witnesses are probably going to be playing by a very different set of rules than they were before COVID.
Another challenge which is in the same category are where these jurors going to be located. Some courtrooms are not letting jurors sit in the box, or they’re putting half of them in the box, half of them in the gallery, and they’re spreading jurors across the room. This is going to make eye contact very challenging for any witness. It’s also going to make it challenging for the attorneys if your audience is spread out. And so that’s something that’s very difficult to practice for because you don’t know how it’s going to be. You don’t know exactly where these people are going to be.
[05:41] Bill So we’ve been setting up our prep sessions, our training sessions to try to simulate what that would look like. But again, it seems like it’s, it’s, it’s very different in each courtroom. So I think, uh, one order of business as soon as you can is try to figure out, um, and maybe some other trials have gone before you, you know, where, “Hey, how many jurors do you have? Where are they going to be sitting? Who’s going to be masked? Who’s not going to be masked?” Because that’s going to be vital to your witness’s success because they’re going to have to know who to speak to. You know, I think training witnesses to talk to the jury has always been a challenge because you’re getting the question from one direction and then you’re diverting your answer into a, you know, a different angle and then you’re, you’re back to the questioner. That was hard enough when the jury was sitting in a box, you know exactly who they were, where they were. Um, if judges and court systems continue to spread these people out, it’s gonna, I think it’s gonna make things, uh, challenging.
And so that’s going to be an issue. Definitely need to figure out, um, where those jurors are going to be located. Um, I think it’s going to make it really challenging on the attorneys too if they’re spreading jurors. Um, think about things like opening statements, which we’ll talk about here soon. Um, how to direct your opening to that group of people if they’re not all together. That’s gonna, um, that’s gonna take some work, uh, by the trial attorney to make sure that you’re getting a nice even, uh, balance of attention and eye contact across that group.
[07:23] Bill But even before we get into, uh, opening statements, let’s talk about jury selection, voir dire. Been getting a ton of calls on the types of things that you should be asking in voir dire in the new world that we live in. I think there’s obvious COVID questions and people’s experiences with COVID. Those need to definitely come up. I think some of the problems that we’re gonna face—which is why I’m a big fan of filing a motion for a supplemental juror questionnaire—is a lot of these questions could be uncomfortable, particularly if someone has lost a loved one to COVID. But even, even more, the mental health issues that have popped up, uh, because of COVID and maybe, you know, job losses or, or getting laid off. Financial problems, evictions, bankruptcies. Uh, I’ve seen it all. And these are very difficult topics for some jurors to talk about, if not all jurors to talk about.
And so my first recommendation, which your adversary should want too, would be to file that motion. Because I think a lot of jurors are much more honest, uh, when they’re filling out a questionnaire. They don’t have to answer maybe anything embarrassing in an open court. But you really need to get that information because so many people have been affected, uh, by the pandemic. Um, a lot have financially, and you really need to know where they’re at, how they feel about that, who, who are they blaming for that? Um, do these jurors think things are going to get worse before they get better, or do jurors feel like, “Hey, you know, we’re on the, we’re on the tail end of this and everything’s gonna be back to normal”? So to really dig deep on those emotions, um, the attitudes, kind of where we’re at in this pandemic, I think it’s going to be really important.
[09:27] Bill You have some places in the country that are really pushing the mask mandates while others are not. You know, how is that affecting, uh, people? Are jurors gonna be comfortable sitting in a courtroom for one, two, three weeks if they have to wear masks? Or are they gonna be resentful? Are they gonna be upset that they’re, they’re there and they’re going to have to do that? So these are really important topics that the attorneys are really going to have to dive into when they’re doing their voir dire with jurors.
Back to the mental health thing. Um, huge monumental problem in this country right now, if you haven’t figured that out. And the last thing that you want on your jury is someone that’s emotionally unstable, irrational, uh, illogical, um, and that would make foolish decisions that would ignore jury instructions. So, um, again, questionnaire is the best way to do that. But if that gets denied, you’re gonna have to ask some of those questions in open court. And that’s what makes it challenging, because you can’t, you can’t say, you know, “Raise your hand if you’re clinically depressed,” right? You know, “Raise your hand if you’re, uh, taking psychotropic medications.” Um, you’re not going to ask those questions because no one’s going to tell you. No one’s going to. And they’re really inappropriate questions, I would think, for, for open court.
But to maybe get the discussion, to make it more vanilla, you know, “Who here is maybe, um, you know, has, you’ve had difficulties with attention and concentration during the pandemic?” Right? Things like that. Or, “Who here, um, has kind of been down in the dumps maybe, you know, during this, uh, uh, pandemic and you’re trying to work your way back?” See how people are emotionally, what they’ll give you in the open court and get the conversation. And sometimes it’s just as simple as, “Hey, how are you? What is your situation like?” I think a lot of that is going to be tied where you can kind of get into that with not being so intrusive, are going to be in questions about employment status and how that’s affected their finances.
[11:45] Bill You know, some industries like the restaurant industry, the hotel industry, amongst others, have been absolutely decimated financially. You have people lost jobs. Um, you know, another issue that you need to ask about which, again, is kind of uncomfortable, but it’s important. You know, did people, did a jury receive stimulus money? Um, was that a good thing for them? What, was it enough? Did other jurors maybe apply for stimulus money and they never got it and they’re really ticked off about it? Um, small business owners, I think many of them have been absolutely crushed during the pandemic. How would they do? Are they coming in to the courtroom with an axe to grind?
And that’s—you were always looking for that before. You were always looking for that before, is finding jurors that are coming in ticked off about something because they’re not going to be good for your case, particularly if you’re on the defense. Plaintiff, that’s a different story. But if you’re on the defense, those are the people you always want to avoid. And you have some new factors out there that may have, uh, many people coming in, uh, pretty unhappy with things. They could be unhappy with the local government and, and, and mask mandates, uh, you know, things like that.
The topic of vaccination. Um, that’s a tricky one. That is a real, because that is the probably number one hot button issue now. Um, I think you do need to ask about it because, again, I think that’s a topic that can trigger emotion. Okay? And you have some people out there that are absolutely furious that everybody’s not, you know, vaccinated. You have others out there that are more in that kind of pro-health choice, you know, “It’s my choice.” Um, and I think you got to figure out what their attitudes are about that, even if it’s completely unrelated to your case. Because if you have someone coming into your courtroom, they’re listening to your case and they’re on edge about one of these key topics, uh, it could be trouble for you.
[13:57] Bill And so, again, try to get that into the questionnaire. I think that it’s a lot less intrusive. There’s no stress of talking or sharing those feelings in public. But if you’re not able to get the questionnaire, you’re gonna have to figure out a way. And yes, I can help you by designing these questions in a way that will get people talking and that you’ll get most of the truth on how they’re doing, um, emotionally with that.
I think the big challenge here is federal court. Federal court—listen, before COVID, nothing gave me a heart attack more quickly than jury selection in federal court. Because you’re most likely going to have a jury in a couple hours, if not less than that. And some judges won’t even allow the attorneys to do voir dire. That’s now—you got judge-conducted voir dire. How in the hell are you supposed to do jury selection if you can’t ask questions and then all the jurors are wearing masks? In that particular situation, I think you need to fight really, really hard to submit questions. Trust me, the other side’s going to want the same thing. They’re in the same boat because they’re going to have problems reading people on a limited number of judge-conducted voir dire questions. And as you know, judges are terrible at asking those questions, and usually none of the questions are helpful to either side. Right?
[15:34] Bill So maybe again, submitting a motion or making a request to say, “Your Honor, you know, maybe both sides could, you know, give you 5, 10, 15 questions each because we think these things are going to be, you know, important to the case,” and just hope, um, that your judge is okay with that. Otherwise, I think both sides are kind of going in, you know, you’re driving down that road at night, you know, without any headlights on. That’s not the place to be in litigation, particularly if it’s a high-exposure case. I think there’s a tremendous amount of risk there.
So I think fighting, fighting as much as you can to get the questionnaire, uh, or, um, submitting those questions is gonna be key. I also think an argument behind the supplemental juror questionnaire, because some judges say, “Well, I don’t want to waste any more time, I want to get this thing going, it’s going to be slow enough.” I think an argument can be made that it’s actually going to expedite the process. They’re a question—I just designed a questionnaire this morning. It’s two pages. Take the jury 15 minutes to fill out. A lot of check boxes and options, not a lot of written narrative. That will make that process go easier. And again, I think your argument to the court is that by using the questionnaire, we’re going to get the information we need, both sides, and it’s actually going to expedite the process so we don’t have to waste a lot of time once the oral, you know, in-court, voir dire starts.
[17:06] Bill So that’s really where I’m seeing a lot—the number one area of anxiety right now from attorneys calling me is, “What, what the hell do i do during this jury selection process because the rules and parameters really haven’t been set?” Um, you know, a lot of jurors, either they’re going to have to wear a mask or they’ll choose to wear a mask. So I can’t see their facial expressions. What can I ask the jury to tap into these key emotional issues that’s not going to scare them away? You know, we are not in Kansas anymore. We are really doing a start over, a do-over from scratch. And as I, um, get more experience in this post- or, or, you know, pandemic era that we’re in and I see things that are working or not working, I will let you know and I will share this on the podcast with you, or just feel free to call me.
I had an attorney from Cincinnati just text me, uh, Monday morning and say, “Hey, can I, can I pick your brain for 20 minutes on voir dire questions?” Yeah, go ahead. Didn’t even charge them. Happy to. Um, Tom Evans, thank you very much, Tom, for calling from Cincinnati. Tom’s a great guy and we talked about voir dire because his situation’s gonna be very different than somebody trying to case in, in LA or Orlando or Chicago. So feel free to reach out and we could always have, uh, that conversation. But the better thing to do, and what, what I did this morning, is, uh, have that questionnaire ready to submit. Even if it gets rejected, you’re gonna use many of those questions anyway. But you really need to come up with a voir dire script. And a lot of attorneys are, are admittedly guilty from, for recycling voir dire questions from case to case to case. That ain’t gonna work anymore.
[18:55] Bill We really need to start from scratch making sure you’re asking the right questions, that you’re tapping into those areas that we talked about. And so there’s gonna be, um, I think what’s gonna determine a lot of cases is who’s putting the most effort into voir dire development. Right? Who is really, really doing that? Now, something that’s very helpful for those of you that have clients that are willing to pay for jury research. You’ve done a focus group, you’ve done a mock trial per se. Well, now you have some data to work from. You probably have some questionnaire data in there or focus group discussion where you tapped in to some, some key issues that you know is going to be important to jurors, or key issues that are going to strike a chord with jurors.
That’s one of the other benefits of the jury research is you get to do this practice session. It’s like a, it’s like an NFL pregame or a preseason game, right? You get to run your plays, right? You fumble a couple times, you throw a couple picks—that’s okay. But you’re going to learn about how jurors feel about your case. But even more importantly, you’re going to learn about how different types of people feel about your case. And yes, demographics—you’re looking at that. Okay? But remember, that’s going to be, you’re going to have a limited predictive validity there.
But you really need to get how do people feel about these topics, uh, what are their belief systems, um, uh, what are their experiences in certain, in certain areas. That’s really what you’re gonna have to do. So plan on tripling the amount of time that you’re going to be preparing for jury selection. So I think that’s really, really, really important.
[20:42] Bill Moving right along, opening statement development. Here’s another thing. I was sent a, consulting on a case in Atlanta and an attorney sent me their opening this weekend. I got to tell you, they did a really, really nice job. And the one thing that they did very well was that they kept it short. Uh, juror attention span continues to dwindle. It was always bad, then it got worse, then it was terrible, now it’s like atrocious. Okay? They don’t have the time, the patience, the energy to sit there and listen to your hour and 15-minute opening statement. It’s not going to happen. I’m a very big 20 to 30-minute guy. I think once you start going over that 30-minute mark, you start losing people, particularly if your adversary puts on a nice tight opening and you come out and double that time. You’re, you’re going to be opening yourself up to a lot of availability bias. If you remember what that is—availability bias means the party you’re most talking about, the party doing the most talking, right? You have the target on your back.
So I think it’s going to be a less-is-more going forward. Okay? I’ve been selling this for a long time. Less is more. Hitting those key issues, hitting them hard. Let you, let your witnesses do the heavy lifting. Okay? I think as the attorney, um, I think there’s this burden that you have to go out there and in your opening you gotta put everything out there. I completely disagree. I think that’s the number one way to probably lose the jury, and that’s the last thing that you want to do. Let your witnesses, okay, do the heavy lifting. What you need to do is provide a framework.
[22:32] Bill Okay, now the one thing that that, uh, attorney from Atlanta, uh, they sent me the opening, um, statement. The one thing I helped with was ordering of information. She had inadvertently put some of her best stuff at the end of the opening statement, which is not the place for it to go. It needs to go at the front. Remember you have this what we call—if you read my paper on the primacy effect and opening statements—we have what we call the cognitive lens. The cognitive lens. And what that is: you got that first couple minutes, okay, with these jurors to lay out the who, what, where, when, why, how. And you have to define those in those first couple of minutes.
You cannot tell your story chronologically. It’s the worst type of story. There’s no—go, go, go to Netflix right now or go to Showtime or HBO. And whether it be a movie or one of these cool new series, right? Nothing, nothing that’s of value goes in chronological order because they don’t want to be predictable. They want the “wow” factor. Okay? And you can do the same thing, but you got to put your best stuff up front. Okay? Because that’s where it’s gonna have the most cognitive value for the juror. Okay?
Jurors, jurors’ brains—scientifically proven over and over again—when you put things in a list, okay, the brain automatically values primacy. Okay? The first few things in that list. Okay? But a lot of the things chronologically in your list are going to come on the back end. So you have to take that, move it up front. Okay? Come out guns blazing. And then at the end, you can use your recency effect. Now, the recency effect provides no value, but it provides a huge memory advantage. Meaning the last couple minutes of your, of your opening statement at the very end, you need to repeat what you did in the first five minutes. Okay? Paraphrase it, but hit it again. So they’ve heard your, your best things twice. You’ve maximized your cognitive value up front, you’ve maximized your juror memory on the back end. Everything in the middle? That’s the weeds. Okay? That middle part of that opening, you know, “Witness A’s gonna say this, Witness B’s gonna say that, I’m gonna show you this, I got this expert coming in”—that’s going to be the middle. But the key parts in liability, okay, causation or alternative causation, right, or your empty chair, whatever it is. And, and depending on who your judge is, damages. You gotta hit that at the very, very front and at the very, very end. Do not tell the story in chronological order.
[25:36] Bill Finally, you know, witness testimony. Going back to the witness prep stuff, obviously the big difference besides the jury being present during trial is your ability to call your witness and to question them. Now oftentimes your witness is going to be called adversely, and you would be doing more of a rehabilitation of that witness. Or maybe you don’t have an opportunity, or they don’t call your witness, and you’re calling your witness within the defense case. The key here is training, not telling. Training the witness how to get answers—explanations, they’re all going to be explanations—to get those to the jury and to do so in a way that’s understandable and not overwhelming.
We’ve talked about this in this podcast before. There’s some key mistakes—really three key mistakes—that, that defense witnesses make when they’re being questioned by their own friendly attorney, and they can do some damage here. The first one, by far the most common: too much information. Right? You ask your witness a question, they turn the jury and they give a minute and a half answer. Entirely too much. We have the five-second rule. Okay? One-one thousand, two-one thousand, three-one thousand, four-one thousand—stop. That is the amount of time that jurors can process information without losing information. Okay?
[27:08] Bill So you got about five seconds. So it’s the attorney’s job to design and offer questions that don’t just let your witness start spurting off. That’s not going to help your case. The jury gets cognitively overwhelmed, they get lost quickly. And by the way, a lot of jurors are note-takers. And if your witness is giving long answers and they start writing, if they’re writing, what are they not doing? They’re not listening. So if they get those answers shorter—more questions, less amount of time during those answers—maximizes jury cognition, which is your ultimate goal along with persuasion.
Second key issue and problem that we see with defense witnesses being questioned either in rehab or direct is volunteering of information that has not been asked for yet. Okay? Uh, it’s a problem. I’m not a big fan of giving your witness a script. Right? I wouldn’t give your witness a script of, “Hey, here’s questions 1 through 50.” But they do need a blueprint to know what the order of questions or topics is going to be so they don’t inadvertently feel some type of pressure like, “Hey, I’m leaving something out, I better bring this up now on my own.” Because in both of these situations—too much information, volunteering information—you as defense counsel now have to interrupt your own witness to get them back on track, which looks bad. It looks unprepared. Uh, really, really not good.
[28:44] Bill The third common problem that we see with defense witnesses during rehab or direct examination is going too fast. Okay? We teach these witnesses—we train them—during adverse or cross-examination: you get that question, you fully process that question for two to five seconds, then you turn and you’re gonna maximize witness cognition, you’re going to drastically decrease errors, and it really helps the jury stay along with the, with the interaction between the attorney and the witness.
So if they do that and then you get up on rehab or direct and all the answers are coming like this—in fact, a lot of defense witnesses start talking before the attorney’s even done because they’ve predicted the end of the question because you guys have been working together, you’ve gone over the questions, you’ve probably done some practice Q&A. Well, that looks totally rehearsed and the jury is like, “Now wait a second. With the plaintiff attorney, the witness was careful, thoughtful, and answered questions a certain way, but now with their attorney…” Right? Looks really, really, uh, really fishy. We want to, um, we want to avoid that.
Finally, you know, with, with closing arguments. Um, yeah, I’ve been doing this a while. Um, our research pretty much shows, I mean, eight out of ten jurors have pretty much made their mind up by the time you get your closing. That’s why that primacy effect’s so important. Okay? They’re told not to make their mind up until they’ve heard everything, but that’s not how the human brain functions.
[30:27] Bill So again, i think with your, your—the goal of the closing argument is not what you think it is. You’re not winning anybody over there in closing. I’ll tell you that right now. If you do, that’s a weak juror. What you’re doing is you’re providing your defense jurors with sound bites to use during deliberations. You want your jurors to go into deliberations repeating things you just said in your closing. Okay? Don’t try to win over anybody. It’s not going to work. You need to give those defense jurors ammunition to fight for you in deliberations. Number one. Right?
And then number two—we’ve talked about this many times on this podcast—you gotta anchor damages. I’m sorry. And the vast majority of cases, you, you’ve got to give an alternative number and tell them in jury selection, tell them in opening, tell them in closings: I’m assuming this is the case. “I’m not admitting liability, but I have an ethical obligation to my client to show you that, hey, this number the plaintiff is asking for is not appropriate, it’s not fair, it’s not reasonable. If you do end up going down that road—which by the way I don’t think you’ll ever get to that question—if you do, I think this is a far more reasonable number based on the evidence.” You got to give that, that counter anchor. Okay? Because the other side is going to anchor, and if you haven’t counter-anchored, now that jury has one number to work from. And even if they cut it in half, that could be a multi-million dollar, you know, nuclear verdict that probably could have been avoided if you gave them another number to think about. We talked about in the last podcast, don’t forget the double anchor as well. So you have to listen to the last podcast to get the details on the double anchoring technique.
[32:25] Bill Um, all right. I’ve got to go, uh, do a walkthrough for a mock trial, so I’m gonna cut this a little bit short today. Uh, but I thought going over these trial tips, particularly the jury selection stuff—that’s, that’s really gonna be just a huge factor going forward. I think it’s going to be a moving target. I think it’s going to change venue by venue, could change month by month depending on public health policy. A lot’s going to change, and the more time you spend planning on that, I think the better off that you’re going to be and you’re going to reduce your risk of getting a bad jury that’s going to do some, do some damage. I am Bill Kanasky with Courtroom Sciences. Thank you so much for participating and we’ll see you next time on the Litigation Psychology Podcast.
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