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.