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.

Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. discuss the most common mistakes attorneys make during litigation touching on jury research, voir dire, direct examination, openings, and closings.

Bill and Steve stress that in jury research, confirmation bias is a major pitfall and attorneys often dismiss unfavorable results instead of using them to prepare for trial. They also highlight how waiting too long to conduct research is another mistake, as early testing reveals vulnerabilities before they become entrenched. In voir dire, many attorneys aren't vulnerable with jurors and also don't go deep enough with their questioning. Bill and Steve argue that opening up personally with jurors and going deeper on their responses helps identify problematic jurors and builds credibility.

On direct examination, they caution against long, unfocused testimony, irrelevant background questions, and overly broad prompts that cause witnesses to ramble. Openings should avoid lengthy introductions and dense slide decks, instead focusing on clear, simple storytelling that doesn’t overload jurors cognitively. Lastly, in closing arguments, they remind defense counsel that the goal is not to change minds but to equip favorable jurors with tools for deliberations.

In this episode, Bill Kanasky, Jr., Ph.D. is joined by attorneys Johan Flynn and Kevin Greene to discuss their recent nine-week asbestos trial in California that resulted in a major defense verdict. Johan and Kevin describe how they incorporated CSI’s disruptive voir dire techniques into their jury selection strategy, using them to identify unfavorable jurors, plant seeds on critical defense themes, and introduce concepts such as anchoring early in the process.

They also share insights on trial strategy, including coordinating with co-defendants, refining opening slides after judicial rulings, and carefully managing cross-examinations. Both emphasize the importance of adapting to surprises during trial and managing their mental and physical health during a lengthy trial. Johan and Kevin credit their success in this trial to the disruptive voir dire approach, which helped them connect with the jurors in a meaningful way, and highlighted how psychological techniques in voir dire can carry through to closing, reactivating juror commitments made during jury selection and directly influencing the final verdict.

Trucking defense attorney Doug Marcello joins Bill Kanasky, Jr., Ph.D. to discuss the latest in trucking litigation. Doug provides a “state of the union” update on where the industry has been, where it is now, and where it needs to go. They address recent tort reform efforts in states like Georgia, Louisiana, and South Carolina, and the importance of leveraging those reforms effectively. An important point that Doug and Bill highlight is the continued lack of collaboration among defense attorneys compared to the highly coordinated plaintiff’s bar, which continues to share strategies nationwide. Doug and Bill emphasize the need for defense teams to be more proactive, from filing first to secure favorable jurisdictions, to preparing witnesses early, and by using focus groups early to test case themes, witness credibility, and damages strategies before mediation. They highlight the benefits of repeated testing and retesting to refine approaches, rather than relying on gut instincts or past case experience. The discussion also covers the importance of simple, compelling storytelling in openings and closings, counter-anchoring damages with reasonable and well-justified numbers, and making strategic concessions to build credibility with jurors. Doug and Bill stress that winning doesn’t always mean a defense verdict — reasonable settlements and mitigation of liability and damages can be victories when approached the right way. Finally, they analyze the Texas Supreme Court’s Warner decision, which reaffirmed the necessity of proximate cause in negligence cases and rejected the idea that simply being present at the scene is enough for liability. Both agree that the ruling provides clarity and is a positive outcome for the trucking industry.

Bill Kanasky, Jr., Ph.D. talks about the role of juror beliefs and attitudes in voir dire and why they must be treated as distinct concepts. Beliefs are what jurors think (cognitive), while attitudes are how they feel (emotional). Bill emphasizes that while many attorneys stop at/after belief-based questions, it’s the follow-up attitude questions that reveal the real risk, since emotions ultimately drive juror decision-making.

Bill gives an example of the sequence: start with belief questions such as “Do you think corporations put profits over safety?” and then follow up with attitude questions like “How do you feel about that?” Two jurors may share the same belief but have very different emotional reactions with one seeing it as a natural part of capitalism, while another may express deep distrust. That emotional distinction - the 'why' behind the belief - is where attorneys uncover risky jurors.

Bill stresses that attorneys must not be afraid of uncovering negative emotions. In fact, identifying jurors with strong negative attitudes provides valuable opportunities to uncover additional risky jurors by asking who else feels the same way. Help make it easier for jurors to strike themselves. He advises attorneys to normalize negative responses, encourage openness, and use follow-ups, including multiple-choice options, to make it easier for jurors to express themselves. Ultimately, he argues that separating beliefs from attitudes and digging into emotional responses is the key to identifying and striking high-risk jurors.

Steve Wood, Ph.D. is joined by trial attorney Jeremiah Byrne of Frost Brown Todd LLC to break down a recent case that resulted in a defense verdict. Jeremiah begins with an overview of the facts, explaining the allegations against the defendant and the damages sought by the plaintiff. He describes the mediation process, the plaintiff’s settlement demands, and why the case proceeded to trial.

Next, Steve and Jeremiah discuss jury selection strategy, including how Jeremiah identified potential pro-defense and pro-plaintiff jurors, developed voir dire questions, and approached strikes. He and Steve walk through key themes from opening statements, how the defense framed the case, and how the plaintiff attempted to appeal to jurors emotionally. Jeremiah details his approach to cross-examination, particularly how he addressed damaging testimony and undermined the plaintiff’s key witnesses. He explains the role of expert testimony in supporting the defense narrative and how his team handled unexpected developments during trial.

Lastly, Jeremiah shares how the jury reacted, the factors that he believes led to the defense win, and his client’s reaction to the verdict.

Steve Wood, Ph.D. joins Bill Kanasky, Jr., Ph.D. to answer recent podcast viewer and listener mail.

• In voir dire, should defense counsel ask jurors about their AI use and habits?

• The judge has only given both sides, three to five questions, max, in jury selection. What do I do?

• How can you manage judge conducted voir dire?

• How do I counter-anchor in my opening statement if the plaintiff attorney doesn’t give a specific number but they just say that they want a large amount from the jurors?

• What are the updates on how the plaintiffs bar is using social media to change and improve their ambulance chasing stigma?