Claim OwnershipThe Litigation Psychology Podcast
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The Litigation Psychology Podcast presented by Courtroom Sciences, Inc. (CSI) is a podcast for in-house and outside defense counsel and insurance claims personnel about the intersection of science and litigation. We explore topics of interest to the defense bar, with a particular emphasis on subjects that don‘t get enough attention. Our hosts are experts in Clinical Psychology, Social Psychology, and scientifically-based jury research with a wealth of knowledge about psychology, science, jury research, human behavior, and decision making, which they apply in the context of civil litigation.
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Bill Kanasky, Jr., Ph.D. describes the surprising connection between Meat Loaf's 1993 hit song I Would Do Anything for Love (But I Won't Do That) and the Reptile Theory. Bill breaks down the correlation between the lyrics of this love song and the unreasonable expectations and standards that are present in Reptile questions. He explains how attorneys need to help witnesses understand that circumstances and judgment play a pivotal role when responding to classic Reptile questions in deposition.
Holly Howanitz, Managing Partner with Tyson & Mendes, joins Bill Kanasky, Jr., Ph.D. to discuss the current state of litigation in Florida after the tort reform bill H.B. 837 was passed in March 2023. Holly shares how both tort reform and the new rules of civil procedure that went into effect in January 2025 are impacting cases. The biggest change that Holly has seen is related to medical bills since whether the plaintiff had health insurance was not allowed to be discussed in court before tort reform. Bill and Holly also discuss how to handle anchoring, thoughts on medical billing experts, dealing with modified comparative negligence, eggshell plaintiffs, anchoring apportionment, and more.
Bill Kanasky, Jr., Ph.D. describes what he calls the dead zone in opening statements. The dead zone is the middle part of the opening where juror attention is at its lowest. Bill lays out a 3 x 3 framework for the dead zone in the opening: 3 core issues supported by 3 high impact facts. He talks about how the opening statement should be focused on teasing and framing your case, not getting into the weeds, and letting your witnesses handle the details later. Lastly, Bill describes the concepts of dilution and repetition in opening statements.
Jim Pattillo & Todd Weston, Partners with Christian & Small, join Bill Kanasky, Jr., Ph.D. to talk about a range of topics on managing a law firm and managing litigation. The group discuss how to get younger attorneys trial experience, particularly when fewer and fewer cases are going to trial, how to manage stress, work/life balance, and healthy lifestyles while still growing a profitable firm, thoughts around voir dire, mistakes they have made while practicing law and the lessons learned, witness preparation, and more.
Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. take a look back at some cases the CSI team worked on during 2025 and share stories, takeaways, and lessons learned. Bill and Steve talk about what causes witness deposition failures and why leveraging neurocognitive witness training leads to improve deposition testimony. They talk about why the work attorneys do to prep witnesses are often inadequate and why its not the attorney's fault. Bill and Steve also provide updates on recent changes in how CSI conducts jury research and how focus group research has transformed case development and strategy for attorneys. They describe the importance of validity and reliability in jury research and how conducting exploratory research like focus groups vs. confirmatory research like mock trials can significantly improve litigation management decisions. Lastly, they discuss alternatives to traditional jury selection and why a focus on voir dire questioning strategy (i.e. disruptive voir dire) and opening statement construction is much more useful than having a jury consultant sitting next to the legal team during jury selection.
Bill Kanasky, Jr., Ph.D. speaks about how important it is to establish trust with witnesses prior to starting any prep. Attorneys need to ask witnesses how they are doing, demonstrate that they genuinely care about their witness's mental and emotional state, and earn their trust before diving into any of the specifics of the litigation. Witnesses may have issues impacting them that are completely unrelated to the lawsuit, though those factors may directly affect how they are able to perform during prep and testimony. Identifying and addressing distractions and concerns is imperative to maximize witness prep and performance. The other key is to start this process from the first contact with the witness. Expressing genuine concern from the first interaction with the witness communicates that their well-being is paramount in the litigation process and builds trust and rapport for them with the legal team, which results in a better prep process and, ultimately, better deposition outcomes.
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.
In this episode of The Litigation Psychology Podcast, Bill Kanasky, Jr., Ph.D. discusses confirmation bias and its destructive impact on litigation decision-making. He explains that confirmation bias — when attorneys or claims professionals interpret case facts in ways that support their preexisting beliefs — is one of the most dangerous cognitive traps in civil litigation. Plaintiff attorneys have recognized this risk in their own thinking and combat it through early and consistent jury research, conducting multiple focus groups throughout case development to uncover blind spots and test themes.
Bill contrasts this with defense teams that often rely on gut feelings, hunches, or prior cases rather than data from the case at hand. Using a real fatality case example, he illustrates how an insurance company’s refusal to fund jury research, despite facing a potential $25 million exposure, left the defense flying blind while the plaintiff likely had extensive data on juror perceptions, themes, and damages. This imbalance, he argues, fuels nuclear verdicts and demonstrates why relying on instinct instead of evidence is so costly.
To counter confirmation bias, Bill advocates for early, cost-effective jury research, even pre-suit. He emphasizes that small, exploratory focus groups can act as pilot studies that guide case strategy, discovery, witness preparation, and expert planning long before trial. By investing early in data-driven insights, defense teams can make more informed settlement decisions, reduce uncertainty, and prevent disastrous verdicts.
Bill Kanasky, Jr., Ph.D. breaks down two critical mistakes attorneys make in opening statements: dilution of their message and their communication frequency. Frequency refers to the attorney’s delivery dynamics - energy level, confidence, rhythm, and emotional tone - that either engages jurors or turns them off. Common problems with communication frequency include defensiveness, nervousness, over-talking, and coming across as if trying to sell something to the jury rather than telling them a compelling story. Dilution occurs when attorneys talk too long, over-explain, or defend unnecessarily, which weakens the message and causes jurors to tune out. Bill explains why less is more and that potency comes from repetition, silence, and reframing the narrative right from the start. He urges attorneys to avoid “dead zones” in the middle of openings, stay high-level (“in the clouds, not the weeds”), and let witnesses handle details later. Finally, Bill highlights the value and importance of testing openings with focus groups to gather feedback from mock jurors to help guide and fine-tune delivery, frequency, and clarity before trial.
In this episode of the Litigation Psychology Podcast, Bill Kanasky, Jr., Ph.D. talks about common missteps in litigation and explains why defense teams must “stop losing before they can start winning.” He argues that many losses stem not from case facts but from preventable mistakes, as the plaintiff’s bar continues to be proactive while the defense often remains reactive.
Bill highlights three key areas for improvement: early and accurate case assessment via frequent jury research, early witness evaluation to address psychological and emotional issues, and early deposition preparation using neurocognitive remapping and systematic desensitization to ensure witnesses are protected from cognitive autopilot issues and plaintiff attacks. By eliminating these common errors, defense teams can significantly reduce the risk in their cases and position themselves for more consistent wins.
Trucking defense attorneys Shane O'Dell and Larry Hall join hosts Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. to talk through several topics in trucking and transportation litigation. They begin by discussing the devastating illegal U-turn trucking accident in Florida resulting in multiple fatalities and the political fallout due to immigration issues with the driver. The group talk about how to address this horrible accident in jury selection and how to solicit honest perspectives from jurors about the trucking industry in order to identify biased jurors. Next the group discuss the need for the defense to be less reactive and to become more proactive and how to help clients see the value in starting early.
Shane and Larry talk about the benefits of conducting early jury research, even pre-suit, and how finding hidden and unexpected vulnerabilities early is incredibly valuable in figuring out how to handle the claim or case. They also share how jury research is highly useful in protecting the defense team from confirmation biases that may be clouding their perspective on the case. Lastly, the group discuss the complexities in litigation when there are multiple defendants, how the attorneys manage co-defendants, and the best ways to conduct jury research when you have co-defendants.
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