Chris Patton, Partner at Lynn Pinker Hurst & Schwegmann and John Adams, Trial Lawyer at Gibson Dunn, join Dr. Bill Kanasky, Jr. to talk about commercial litigation and the article they co-authored titled Give the Jury What It Wants: Decision-Making in Trial Practice. Chris, John, and Bill discuss the importance of storytelling in trial and why and how to get the jury's attention early to frame the trial narrative. The group also talk about the availability bias and how jurors interpret and consider the information and litigants based on when and how much they are talked about by the attorneys. John and Chris share how they handle explaining complex concepts to jurors to help them understand so that they can properly evaluate the case facts and how they leverage sympathy and emotion in business litigation to help jurors relate. Lastly, the group talks about how to identify the right witnesses for the case, the way they handle bad facts at trial, and their perspective on bringing up tough questions during voir dire.
Podcast transcript:
Dr. Bill Kanasky [00:00:05] Welcome to another edition. Litigation Psychology podcast, by Courtroom Sciences. Dr. Bill can ask. Guzzling, guzzling water like like I'm going to the electric chair tomorrow. We have two great guests, couple updates first. Do I look terrible? Yes, I do. Do I sound terrible? Absolutely. Just got back from four days, Daytona Beach, Rockville Music Festival. Metallica was the headliner. My ears hurt. My feet hurt. I think I logged about 35 miles of walking. I just don't think that the human body is designed for four days of 12 hours a day of music. It's just it's not healthy, not healthy. Your liver's not built for that. I could tell you right now, liver, kidneys, the whole thing. But definitely I'm getting I'm just getting too old for this. Happy to have two really, really good guys on as guest today. John Adams, Chris Patten, who who authored a paper that you most papers attorneys write, with all due respect, I struggle with them because I think they leave out some of the most important things, which is the psychology behind this, particularly with jury decision making with things like storytelling and you guys just rocked it. Speaking of rock, you guys rocked it with this paper. Chris Patten, tell us a little bit about your practice and about your firm before it happened this paper. Then we move to John.
Chris Patten [00:01:40] Sure. Happy to be here, Bill. Thanks for having me. I'm jealous. You got to spend some time with some of music. Oh yeah. I am a commercial trial lawyer at Lynn Pinker, first and chairman here in Dallas, Texas. I've been here for about 10 years. Before moving to Texas. I practiced at a big firm in New York, doing kind of massive commercial lawsuits. And now my main practice is is, like I said, commercial litigation. Yeah. You know, I do a lot of antitrust, a lot of trade secrets, a lot of commercial disputes. And one of the benefits of being at a smaller boutique like Lynn Pinker is that you have opportunity to try cases. I just got back a couple of weeks ago from a trial in the Eastern District of Texas of a of a very large antitrust case, which was a lot of fun.
Dr. Bill Kanasky [00:02:36] That's outstanding. You're like in that Texas tax system versus New York, right? That's for sure. Yeah. Yeah. Makes me makes Christmas spending a little different. John Adams, tell us about tell us about your practice in your firm.
John Adams [00:02:53] So I'm a trial lawyer at Gibson, Dunn and Crutcher in the Dallas office. I actually work just across the street from Chris Patten. We were colleagues for several years. I learned a lot from working with Chris. I'm also in the commercial litigation space, so we focus on really large, complex disputes, everything from intellectual property and, you know, patent type work to kind of simpler breach of contract cases. You know, things that I think are really difficult subject matter for anybody to spend time with and get their heads around. But then particularly to try and instill that down for a jury to understand that just becomes such an important part of the job.
Dr. Bill Kanasky [00:03:35] Yeah, we do a lot of mock trials and IP cases. As bad as my brain hurts right now, I think the only thing that hurts my brain worse is IP litigation. It's so difficult. The jurors struggle. And I will say this, though, and and I think this is probably your experience as well. Commercial litigation has just as much emotion around it as a trucking case, as a medical malpractise case. Chris, I mean, when companies are going at it, I mean, emotions are up there, right? I mean, especially if they're going after each other. Trade secrets, I mean, some unhappy witnesses, I'd say,
Chris Patten [00:04:13] Oh for sure. One of the things that has surprised me about commercial litigation is that so much of it depends on the mood, the personality of the witness. And no matter you know, I've done cases for massive fortune 100 companies or smaller type startups, and in each case, somebody feels emotionally vested to a degree sometimes that it gets in the way. And so I'm always surprised at how much depends on personality and emotion in the trials sphere.
Dr. Bill Kanasky [00:04:45] Yeah. John, tell me about you and I'm kind of going off script a little bit, but we've been talking so much about this lately, the role the the corporate representative and how important that is. And and if you have if you have the wrong person, I found out that sometimes the person most knowledgeable is not necessarily the best, the best, the best witness. Talk about the importance on your matters of getting that 30b6 corporate rep really ready, particularly for deposition, because that that's going to ultimately sometimes determine your fate, right?
John Adams [00:05:22] Oh, for sure. I mean, and it's so there's a few a lot like kind of packed into that question, right? Because you have some really good tactical strategic plans about when you want to take this thirty six deposition, how early in the case to kind of frame those issues or later when it's more developed. So some. Important questions there, but certainly no, once you are tasked with putting this witness on and defending that deposition, that's critical to have gone out, done the research and then prepared that witness. And I think you did a great piece on this bill or an article about, you know, witness attention spans right when they're testifying and then preparing them. And so to realize, you know, you're going to have six or seven hours cram packed of the most vital parts of your case, this witness is testifying about. So then the back in, how much time is it going to take to to build up that witness's knowledge on that? And it's it's so common you leave this stuff to the last minute or just like one day of preparation, you can't expect somebody to to absorb all of that. So it's that's a huge issue in commercial cases, for sure.
Dr. Bill Kanasky [00:06:30] Yeah, it's something I've been preaching for a long time to the point where I do write a paper about it. But yeah, fatigue based mistakes with any with any witness is really, really common. And I find that if you don't understand how the brain works when it fatigues, how fatigues, when you need a break, how long that break should be. Boy, there's a lot of errors that can be avoided if you if you play the cards, play your cards the right way. Well, thank you so much for both of you guys for coming on the show. You know what I really love is that young attorneys love this podcast. I get contacted every week by young attorneys, so spread the word. Young attorneys. But I think it's important because, you know, the one thing that's probably, I think badly missing is the amount of training opportunities out there. And I think the more that we talk about these things and the more that we can help each other out, you know, spread the good word, particularly when that works. You guys did this with your paper in the US, the ABA behavioral economics. That article is really fantastic, and I'm going to pull up right now so I can read the title of it. Give the jury what it wants, jury decision making and decision making and trial practice. Now, of course, this caught my eye because I pretty much published about 19 papers around around this topic. And you guys really hit the science hard here. I was really, really impressed. So, Chris, like what? What was the spark here? What made you guys get together and say, you know, we really need to cover this topic and we'll go through these topics, but the idea had to come from someplace, right?
Chris Patten [00:08:12] Yeah, I think John was the originator of the idea. But what grabbed me about it was I have always been interested in some of the more kind of pop based behavioral economics the Michael Lewis. Malcolm Gladwell, the, you know, the Freakonomics type stuff. And I always listen to those types of podcasts. And, you know, I was going to fight my way to jail during my commute in and seeing this apply to what I do every day, just all of a sudden hit the nail on the head and it had me thinking, Oh yeah, this this works here, too. And John and I talked about it and realize like this is this is this is important stuff that lawyers are missing when trying cases.
Dr. Bill Kanasky [00:08:54] Yeah, John, I tell you what I was reading the paper and the thing the thing I really like about the paper is the focus and what I think is one of the most important things that gets zero attention is the art and science of storytelling. And I've, you know, a few people really understand, you know, how how this works and it's so important at trial. And I think when you go and you look at say, you look at the plaintiff's bar, right in the types of training that they get, a lot of it is in this area and they get their their best attorneys and their training younger attorneys on the proper storytelling model. John, correct me if I'm wrong because I've written about this, I've spoken about it a lot. Oftentimes, the best story does not come in chronological order, does it?
John Adams [00:09:49] Absolutely not. You know, I think and that's that's such a huge mistake in my mind because you're right, you know, storytelling is is synonymous almost with trial lawyers, right? Or going to trial. You got to tell a story that is, you know, something that everyone knows in that basic phrase. But you know, one of the things Chris made a great point about and particularly brought this out in the article, right? What's interesting is how much these, you know, old dogmas, right? Or these traditions really do lie with science, but they're not fleshed out well. And so people as idea, I've got to tell a story. And so they just put together a timeline or a chronology and say, Boom, boom, boom, here is what happened. But that's not what telling a story really means. And so, you know, you said this earlier bill about, you know, the emotion in commercial cases. And yeah, there's there's some witnesses that can be hostile or have their own emotions. But I think what's equally important is, you know, bringing that out intentionally and finding the emotion in a commercial case, the right emotion, right, the right themes, the right ideas, whether it's betrayal or theft, you know, things that people can relate to, that a jury can understand. That makes it something it's not just a dry dispute between, you know, ABC Corp. and widget company. And so, you know, finding those stories and the characters, really, I mean, to me, that's that's what the essence of the story is. And you know, what's going to help you make the decision much more than the order anything happened in is who are the characters and who the people really care about and want to win at the end of the day?
Chris Patten [00:11:26] And just to add on that, I apologize for jumping in here. But if you look at great literature or great movies, movies, plays, none of them are chronological beginning to end.
Dr. Bill Kanasky [00:11:37] No, not at all. I'm a big Scorsese fan, right? And I, when I was give it because back when we were in trials right now, I guess as where we're getting back into it. So I have to go back and start giving the speech again as I'd give this speech and I start to speak and say, OK, raise your hand. If you've heard of the movie Goodfellas, raise your hand. If you heard of the movie, you know, Gangs of New York, have you heard the movie Casino, right? And I go, How does each movie start? And then no one, everybody just kind of looks. And I got a better question where does each movie start? And it starts at the end. Scorsese, he gets the best stuff. He puts it right in the opening scene, but he doesn't conclude it right. He makes it gets those wheels turning. And some of that, yeah, some of the best stories. You know, you got to start with a, you know, Scorsese, he likes to do it with explosions and gangland murders and stuff like that gangster stuff. But it's really important, I think, to come out of the corner swinging right. And I think that there's this myth that nothing makes me crazier when an attorney, it's whether it be mocked, preferably mock trial, not real trial. But when an attorney comes out of the corner and like, you're thanking the jury for their service, you're reminding them this. Yeah, there's this is this civil duty and blah blah blah blah blah. And you burn through the most valuable five minutes you have. Getting warmed up, and I think the myth is that if I come out of the jury, if I come out of the corner swinging that the jury is somehow going to be offended or not be happy with me, or I mean. John, what do you think? Because I mean, I tell attorneys like, do your introduction in voir dire, right? They know who you are by the time you get up there. But that first I have labeled this the cognitive lens. And what that means is whatever you say in that first five minutes, it's the lens in which jurors are going to see the rest of your case. And if you screw up that lens, it screws up the rest of your story. John, talk to us about how important it is coming out of your corner to really come out swinging and not save your best stuff till the end because a jury is not going to care by the end,.
John Adams [00:14:02] For sure so not only it shapes everything, you've got this lens, but what I actually think is really interesting too, is there's this other science and it ties directly into storytelling about the chemicals in your brain and how storytelling triggers those. And right, if you come out of the gates and you can trigger a dopamine response, right? If you can, you know, show something exciting, let's get to the core of the action here. And you trigger that dopamine in people. People's intention is going to increase, right. People are going to be paying more attention to what you have to say next. So don't wait until later when people are dozing off already to get to the meat of your case. When if you can get people's attention, I mean, that's again, great stories. Any great movie? Let's lead with the hook. Let's get people's attention, and then we can introduce the characters and get into, you know, maybe some more substance. But leading out of the gate really does frame the whole story, frame your trial narrative and you've got to get people. It also, I think it shapes the jury's perspective of you as an attorney. Right? Are you coming out and you really have something to say to me right now because they just attacked? You write a lot of the other side's right against you. Yep. So do you have something to come back and punch back or are you going to kind of meander? And I mean they want to see that you really have something to say in response?
Dr. Bill Kanasky [00:15:21] Yeah, when so now everybody's going back to trial, so I'm getting a lot of emails with word documents saying, Hey, you know, can you check out my opening? And I think nine out of 10 of them, the first thing I do is I delete the first two paragraphs. And I take something from the back and I move it up. I'm like, Why? Why are you waiting for this? And again, there's this like this fear, this fear of coming out, you know, swinging. You know, the other thing that I've seen and this is more, let's pick on the older attorneys. Let's just go ahead and do that right? Let's pick on these guys because really, the guys have been doing this 30, sometimes 40 years. There's this old way of doing it. And it was a different jury, and I think at that point you could get away with it because there was no social media, there was no internet where you can you come out of your corner and you're trying to warm up to the jury and you tell this story, you tell a story about, you know, my grandfather used to tell me and that. But if you do that today, I mean, Chris, I mean and Twitter universe and Facebook bill, I mean, you're not going to survive from an attention span standpoint with Gen Y and Gen X saturating the they're not they don't want to listen about your what your your grandfather taught you to do that right?
Chris Patten [00:16:39] They want to know the answer now. Yeah. They want to know, how are you going to dress that big, nasty problem the other side just pointed out. The first thing you say, I think my opinion is that a lot of this is driven by lawyers who are not comfortable standing in front of juries and who don't have that that level of experience, so they need to warm themselves up. Yes, a disservice to the client. Yeah. And it's it's kind of a symptom of the system we have here where where a lot of lawyers, even very senior lawyers, can't get those reps in court that enable them to feel comfortable and come out swinging.
Dr. Bill Kanasky [00:17:15] Yeah. And that's a really, really good point. It's a it's a it's a soft, warm up that I see a lot of it in public. You know, I do a lot of speeches. God, I think I'm probably approaching 100 speeches this year. That's how much I've been speaking and I get to see other speakers speak. And a lot of it's really bad because of this, this warm up. It gets boring. You know, I come out in a bull in a China shop, you know me, which is so important. Let's talk about something that you brought up in the paper, which I've written about. I've spoken about, which I think is so critical. It's a critical tool. That oftentimes gets misused, or you can kind of shoot yourself in the foot, and that's where the whole concept of availability. Otherwise known as the availability bias and where I've seen a lot of problems is the is an attorney not understanding how that can really work for you unless you put the wrong party out there to be so available. And so the other thing I tell my clients is I'm like, You're coming out of the corner swinging. I'm like, You should not mention your client in the first ten minutes because you're available, right? John, talk a little about the importance of availability and how if you come out talking about yourself, that could actually be a very bad thing, right?
John Adams [00:18:50] It can. I mean, so and I think this ties to, you know, the other idea one of the biases of wanting to ascribe conduct to somebody, right? And and that's some things. And this may not happen a lot lawsuits, but there's a lot of times in life that things happen because of circumstances beyond somebody's control. Right? But a jury in particular and people in everyday life are going to want to say it's somebody did something right. They're looking for the actor that caused the accident. They're going to lie to somebody that took the money. And when you're having this conversation in the courtroom or talking to a jury, they're not thinking there are some outside factor. And so the more that you're talking about one person in particular or playing up one person's role to your point, I mean, when the jury is thinking about this later and deliberating, that's going to increase the availability, they're going to think about that person more and want to attribute causation to whoever that person is. And so you certainly don't want to play people up in the wrong light. But, you know, I think the availability here is it crosses a lot of parts of the trial as well, just because, you know, people make fundamental mistakes about information just because what is being presented to them more
Dr. Bill Kanasky [00:20:07] Yeah, I mean, Chris, the other thing I see constantly and again, it's the attorney brain playing tricks on itself because you want to do the right thing. But then you as an attorney, there's an emotional factor is you want to come out of the corner defending versus attacking. And what I cannot stand seeing is particularly defense attorney come out going with, you know, we didn't do it. It's not our fault opening statement. That's not the best way to come out. And that's not swinging. That's that's backpedaling, right?
Chris Patten [00:20:40] It's not on defense. Yeah,.
Dr. Bill Kanasky [00:20:43] It's weak.
Chris Patten [00:20:45] I mean, I've seen that backfire quite a bit.
Dr. Bill Kanasky [00:20:46] Yeah, it's weak. And so, you know, the nice thing is that, you know, post, are we post pandemic ;I don't know where we're at this point, I guess depends on what state you're in. And Florida and Texas, we are New York, not so much, but we're doing a ton of mock trials and focus groups now that things are getting back going. And that's really it's a great way to test some of these approaches to see, you know, what's going to work, what's not going to work? Can you, you know, how far can you push it on your attack and see and see what the jurors, you know, see what the jurors say, see what type of feedback you get. And so I'm not I'm not a big fan of clients going into trials, essentially guessing on how on how to try the case and particularly the stuff that you guys do. There's some pretty complex topics that, I mean, if you don't practice on how to teach that type of thing. Talk about losing the jury. I mean, John, there's got to be your number one. Fear is that I'm going to lose this jury. They're going to they're not going to understand this. How do you how do you take something, particularly in commercial IP copyright takes something so complex? And not lose that group, because I think that's the biggest challenge for you guys.
John Adams [00:22:16] It totally is. And I frankly kind of approach it from the opposite perspective, which is I'm going to lose the jury. You have to go in knowing that if you want to tell every detail of this and get into the weeds of this, you're going to lose the jury at least two times. And so what are the things that we can do to make sure that we minimize that at least and focus on credibility, right? Focus on, OK, we're going to have to take a really complex issue. We're going to have to at least build the record, right? There's facts that are going to have to be introduced and you're going to have to prove if it's for the court, if not for the jury. But while you're doing that, what's the jury seeing right? Are they seeing a witness who is believable, who is confident in what they're talking about? Or is the jury not even paying attention at that point? And so I think that they're really thinking about kind of that almost call it like that meta view of the trial. You've got all the facts that are happening in here that have to be brought out at trial that are important, but that's not a big part of what the jury seeing. And so thinking then again, all right. What's the jury focused on? What is the jury seeing? What is the story that the jury is going to walk away from this as that's all playing out at the same time?
Dr. Bill Kanasky [00:23:32] Yeah, I mean, and I want Chris to follow up on that because what I what I see the big challenge here being, which is really, really hard. I think the side. That wins the simplicity battle has a monumental advantage. I mean, am I off here?
Chris Patten [00:23:49] No. Absolutely true. I'm always surprised at how my mindset switches when I get in trial prep mode from litigating the case mode and how you get focused on so many things in discovery and litigating the case that ultimately don't matter. Once you get to trial and you really have to force yourself into this view of, I'm trying to explain this to a layperson on a jury. And what matters to them may not be what matters to me. And one thing that I do. Having just done this for the first time live in-person since the pandemic began, I was reminded as to how hard it is. I did it in an antitrust case that was a pretty sprawling, ten year type allegations. And so I focused really hard on figuring out how to best explain those complex allegations to a layperson, in part by talking to my family members. So I had a moment in the weeks before trial when I was trying to explain something to my my in-laws, just kind of about the case.
Dr. Bill Kanasky [00:24:58] Good luck with that. Good luck with that.
Chris Patten [00:25:00] Right and I got about halfway through and their eyes glazed over. They weren't following me and I said, You know what? I'm not doing this right. And so I practiced again with my parents, my 14 year old son, who I mentioned earlier. I sometimes try and explain things to him and see what he gets from it. Yeah. And in it, the more you could practice explaining something to the folks that are around you every day that aren't lawyers, I think the better and the more equipped you are at trial to be able to explain that to a jury.
Dr. Bill Kanasky [00:25:30] John, this question just popped up on my mind, I know the answer, I just want to hear you say it and explain it because a lot of people don't think this is true. It's absolutely true. You know, you see, OK, there's other areas of product liability, medical malpractise trucking. You're dealing with catastrophic injuries and death and a ton of sympathy. But John, correct me, if I'm wrong, you can use sympathy in business litigation. I mean, commercial litigation, there can be sympathy. It's just how do you tap into a how do you define it for the jury because there doesn't need to be catastrophic death and injury? You know, physically that can be done, you know, from a trust basis, from a financial economic basis. Right?
John Adams [00:26:21] You have to right, if you're missing that, I think you're not doing your job correctly because this ties back into the storytelling idea, right? And what are those themes ideas that do evoke those emotions that jurors can relate to a jury's not going to relate to oh, well, there's a $100 million that was unaccounted for and somebody didn't have in the right ledger of the right column. That's that's not a relatable idea. But if you talk to somebody about theft, right, or like you said, betrayal and the confidence that you place in somebody and you know, what does that really mean, the jobs that are on the line to somebody or these are these bigger ideas, the bigger concepts that do evoke emotion and therefore sympathy, and that can cause a jury to want to root for one of these players. That's that's critical in business litigation, just like in any other trial.
Chris Patten [00:27:13] what do you think is fair versus unfair, big versus little cheating to get ahead that those types of themes are ever present in business litigation?
Dr. Bill Kanasky [00:27:22] How do you Chris, how do you? Because you know, a lot there's there's a you know, I'm not sure this is a myth. I think I think we've pretty much proven it. Jurors aren't big fans of large corporations. I don't think they have that for some time. And I think, you know, as we move forward here, some companies are doing things a little differently than others. How do you and how do you define your client because you have to humanize your client? They can't be if it's always a particularly if you are the big guy in the case, right? A lot of jurors, I think, struggle to really understand who a company really is. I think that's where a lot of these key witnesses come in to, you know, to humanize the company. But can you talk about how you focus on that because if it's just all about revenue and profit, there's not going to be any sympathy, I'll tell you that much.
Chris Patten [00:28:23] Right, right. And so it totally depends, obviously on what side you're on who your client is. I tried a case for four or five years ago, and you know, one of the things you could tap into with a company like that on the defense side is their history and what they've done to the country and what they've built and and just what they've contributed to our society. And I think that type of thing is helpful. I don't want to overstate that, though. I think the more important thing is what we talked about earlier, which is humanizing the corporation through your witnesses. And so when you're choosing your witnesses at trial, you need to find those witnesses who are going to come across as genuine, authentic to to the jury and not the types of witnesses who kind of play into the stereotypes of big corporations. And that's sometimes a hard challenge to marry those types of witnesses with witnesses who may have knowledge. And so and so you have to spend a lot of time thinking about who's going to sit there at the table with you and who's going to testify about the main things in your defense.
Dr. Bill Kanasky [00:29:27] Yeah, John. And then we got a transition here in the jury selection. Then we'll wrap up this podcast. How what is your philosophy on dealing with shitty facts? Every case has them. I'm a big proponent of control. I think you hit them head on. I think the more you try to run away from them or explain them away, I think I think you, you draw more negative attention to it when you have bad facts. How do you tend to handle those at trial? And when do you tend to handle those because you know, the other side is going to beat you over the head with it, but you can if you play your cards, right? I think there's there's ways to to handle those things that are better than others.
John Adams [00:30:12] Absolutely. And I want to talk about that in a couple of ways. Fantastic question. I've actually heard trial lawyers describe really in like four categories of levels of mastery. And the first level, the basic level is if you have a bad fact, you ignore it. Second level is to acknowledge it. The third level is to deal with it. In the fourth level of mastery is to turn it to an advantage, and that's where you want to be. Every time as much as possible is to take that what you think is a bad fact and say, how do I fit this into my story in a way that spins it into something good? And I think that's critical for a few reasons, one of them being everything. You know, all roads lead back to storytelling, but one of the models that this describes in a jury decision making is this kind of idea of kind, gritty, right and credibility of it for a story to be believable. It has to account for all of the facts. And jury is going. The jury is going to match up what the story you've told them and see if you fit all the pieces into it and if things are missing, then the story isn't credible. Your narrative? Can't be true because it doesn't account for something. And so when you marry those things together, I mean, that tells me you've got to go in and figure out, you know, what is this this bad fact and what are the circumstances I can tie that to? What is a different way of looking at this, that I can, you know, not only just get in front of it, you know, somebody like, you know, take that bullet head on. I mean, sure, you don't want to ignore it, but is there some way I can tie this into my side of events? Maybe it just builds up the sympathy for my client. Maybe it just says, you know, there was a mistake. This is a fallible person. And look, then they tried to do the right thing. I mean, there's just you have to really not just see them and identify them, but wrestle with those and bake them into your trial.
Dr. Bill Kanasky [00:32:08] Yeah. Is that a perfect segue into our conclusion, which is going to be jury selection. So again, for a year and a half, no one called me for jury selection, now every body is calling and they want the updated voir dire. You know they want the post, Trump post COVID post, George Floyd. You know all this and these are all important factors and still still the big thing that again, it's this is all cycle. It's an emotional problem with the attorney. I send it, I send the questions is like, I'm not asking that question. I don't want to ask that question. I got, Yeah, you do. You need the damn answer to that, but I don't. I don't want to talk about I'm like, No, you have to. I mean, related, the bad facts or a bad topic in your case. I think you deal with this in jury selection, if they can. I mean, if you don't ask the tough questions about how people feel, what their belief systems are, you know, towards a certain topic. And I don't I completely disagree with the myth that what if a jury, if a juror says something bad in jury selection that's going to poison the well? No, no. You've just identified your hopefully a cause challenge, right? But Chris, talk a little bit about how and I still see this like this resistance to ask these tough questions. But if you don't ask those questions, you can be in trouble, right?
Chris Patten [00:33:31] Right. I mean, that's where you win or lose your case. Yeah, the jurors are the ones who are deciding the facts, and you need to know what information is available to them. And this kind of goes back to article and the availability, bias and things like that. And it is essential to ask what their experiences are. And I think if you do it in a genuine, thoughtful way and you plan in advance how you're going to do it, I think you can. You can make it like dealing with that fact. You can make it part of your your your story and make it part of your case in a way that doesn't, doesn't, doesn't come off as negative or problematic. But it's absolutely essential. I mean, I can't tell you how many times I've heard of or seen these, these, these, these board borders, as they call it, here in Texas, when I was in New York or Dear Dear Lord, I've been here. I've been here a good decade now, so I'll call it what what it's called here. But how many times you know there's there's just that one question you know you need to ask and people will shy away from it. And I think it's a lack in some in some instances and in some instances, is just this. This thought that if I let anything seem negative about my case, then all the jury's not going to go with me poisoning the well type of thing. And I think it's just so, so essential to find out about the jury you're going to panel.
Dr. Bill Kanasky [00:34:58] I think it's all about timing, too. Now here's where I do agree with the warm up. I think jury selection is the perfect time to get your warm up in. It's not opening statement, and that's that's what you see. But I think it's is that is the time that you have to interact with these folks get that warming up. You don't have to ask that that really tough question until may be, you know, an hour or two hours in. And then you'll know you'll know when the time's right, right to ask that. John how, how are you guys approaching jury selection going forward? I mean, every here's the the a huge, monumental problem I'm saying is, well, if your juries all wearing masks, you can't see their damn face, right? You can barely hear them, right? I mean, the adjustments that need to be made here are enormous. John, how's your firm? If guys like you guys talk and say, hey, here's how we're going to do things differently because we're not in Kansas anymore, right? We're in a very, very different world for sure.
John Adams [00:36:05] And so as a firm, I mean, the firm represents clients all across the country, internationally, a lot of different venues. And so people do things very differently in all those different situations. So I'm not sure there's a single unified approach at this point, but certainly I think there is acknowledgment that things have changed. I can speak for myself and the people I work closely with, right? It is very important to work with professionals like yourself and to get all of the information possible to think about jury questionnaires and to understand. I mean, one of the things you have uncovered is huge. But combined with the Trump administration of understanding how people get their information, what types of information people rely on, that kind of thing tells you a lot about the type of juror you're dealing with, right? Are these analytical people that are going to be able to try and pass through all your facts? Are they going to go with the crowd? Just what type of decision maker are they? And so I think focusing very much on understanding jurors is is critical at this point.
Dr. Bill Kanasky [00:37:13] Excellent. We're going to close up with Chris Patten. Same question. What what adjustments have you and your colleagues made? Are you talking about it? Because again, it's this it's we're really starting from scratch here when it comes from a jury selection standpoint because it's the whole country has been rocked and I don't care what race you are, I don't care what your sex or gender is. I don't care what your income is. Everybody's been impacted like this and it's I think it's been very different across the board and throw into this, which I've done several podcast. You have a serious mental health problem in this country. Serious of undiagnosed, untreated mental health, and that's a jury pool. Things got to change going forward, right?
Chris Patten [00:37:56] Right. And I think a lot of it is what we just did this, you know, we just did this a month ago. And and a lot of it depends on the judge's practices and procedures, which is the trial we just did was in federal court. He had some very specific procedures for voir dire that made it a little bit easier to kind of make sure that we're seeing the jurors seeing the jurors face. Although everybody was masked, you know they would come to microphone, take off their masks. But there are there. There are different things I think courts can do to make that a little easier. But it only emphasizes the the importance of being thoughtful in how you're asking your questions and what questions you're asking. You can't just kind of go by the old playbook if you really need to start thinking through why and how and precisely what you're going to be asking these jurors, especially if you're going to be limited in how you can interact with them. So in this trial, we just did. It wasn't one of those things where you could point and say, OK, juror number number three, what's your experience with X? Yeah. The juror would come up to the microphone. You'd ask him some questions and then they go, sit back down. And it was a little less kind of interactive in that regard. And so you have to think, think ahead and be sure and plan for that sort of thing.
Dr. Bill Kanasky [00:39:13] All right. Chris Patten John Adams. Thank you so much for being on the podcast. Keep in touch. Love to work with you guys because I think as we continue to move forward here and into twenty two, I see a big logjam of cases and I see a lot of stuff moving and moving very quickly to the point where it's actually very uncomfortable how fast it's moving. But thank you. Thanks. You guys are excellent. I will put a link to your paper for our audience, and I suggest everybody read that because it really goes over the science of storytelling and great having you guys on the show. Thanks so much. All right. And for our audience, we're approaching 100 episodes very fast. Got a surprise for you coming up. That's going to be awesome, but thank you for participating in the Litigation Psychology podcast brought to you by Courtroom Sciences. See you next time.