The Litigation Psychology Podcast

The Litigation Psychology Podcast - Episode 237 - No Trust, No Nothing - The First Meeting with a Witness

Bill Kanasky, Jr., Ph.D. talks about something all attorneys, but particularly early career attorneys, need to keep in mind when preparing witnesses for deposition. Sometimes witnesses come into deposition preparation with some trauma which could be related to the litigation, or from other sources, that may be triggered or further exacerbated by the litigation. It's important for the attorney to build trust with witnesses and not add to this stress in how they interact with and communicate with the witness. Bill explains the concepts of exposure theory and systematic desensitization and how attorneys need to approach witnesses they are preparing. Bill shares ideas for how to handle the initial meeting and conversation with witnesses to gauge their mental state and identify how they are doing emotionally. Let them share what's on their mind. You also need to be constantly assessing how they are doing as they could be fine but then get triggered after you start going into the details of the case. And this assessment needs to happen at each subsequent meeting with the witness. Watch the video of this episode: https://www.courtroomsciences.com/r/y8H

The Litigation Psychology Podcast - Episode 236 - Preparing for the Storm (i.e., Pre-Litigation Management)

Bill Kanasky, Jr., Ph.D. talks about the critical importance of preparation for litigation, and particularly early preparation. Bill discusses the risks for the defense by not being prepared and the costs for not being prepared. Bill talks about steps to take before litigation even strikes:1. Education: Identify people who will be involved in litigation and/or likely to get deposed in a future lawsuit and educate them on the litigation process and start to train them as witnesses in advance;  2. Review and edit all documentation: Policies & procedures; training manuals; employee handbooks; websites - the language in these materials often set an idealistic standard that opposing counsel will use against the corporation; review, edit, and update immediately. Communication and enforcement of the policies and procedures is key; 3. Review and revise hiring practices - Revisit your hiring practices to feel confident about your hiring protocols; hire an attorney to review your policies and procedures and hiring practices to identify your vulnerabilities; 4. Create a litigation crisis plan - Develop a plan and communicate it to all the key personnel; be sure everyone understands what to do and what not to do when there is an incident.
Watch the video of this episode: https://www.courtroomsciences.com/r/ZrO

The Litigation Psychology Podcast - Episode 235 - Name, Image, and Likeness (NIL) and Litigation

Jonathan Wohlwend, Associate Attorney at Bradley, joins Steve Wood, Ph.D. to talk about Name, Image, Likeness (NIL) and the legal implications around NIL. Jonathan provides background on what NIL is and is not, particularly within the context of college athletics, and describes how the process for NIL works for recruiting players. Jonathan defines what a collective is, the changes that have happened over the years around collectives, and their role in NIL deals. Steve and Jonathan also discuss several cases related to NIL. Lastly, Jonathan shares his past background as a JAG Officer and words of wisdom for attorneys who are earlier in the career.

The Litigation Psychology Podcast - Episode 234 - The Danger With Witnesses Who Guess

Bill Kanasky, Jr., Ph.D. talks about the biggest mistake witnesses make during testimony: guessing. Bill describes why this happens, even in light of clear direction to not guess, and how to address it. Bill talks about the attention/behavior gap which is driven by the brain's native neurocognitive wiring and explains the two categories of reasons why witnesses guess: internal and external reasons. 
Internal factors: 1. Witnesses experience shame and guilt for not knowing or not remembering something; 2. Witnesses don't want to hurt the case and/or want to win; 3. Witnesses have a fear of punishment.
External factor: Plaintiff counsel.
Lastly, Bill covers the four things your witnesses cannot say during testimony: 1. "I think..."; 2. "I believe..."; 3. "I assume..."; 4. "I probably....".
Watch the video of this episode: https://www.courtroomsciences.com/r/UFC

The Litigation Psychology Podcast - Episode 233 - Don't Let Your Witnesses Fight with a Professional Fighter

Steve Wood, Ph.D. talks about seeing more and more examples of witnesses who are fighting with opposing counsel in their deposition or at trial, motivated by a desire to get their story across. Steve covers several reasons why pivoting like this is a bad idea including: arguing with a professional arguer is foolish; jurors view witnesses who pivot or argue with opposing counsel as less credible; the questioning attorney will call the witness out on this move; most witnesses aren't experienced enough to be selective about when to fight and when not to fight, leading to potential pitfalls. Steve highlights that witnesses need to own bad facts and move on. A fact is a fact. Witnesses and their attorneys need to develop a trust and attorneys should share their strategy on how they plan to get the witness's perspectives across to the jury without the witness having to pivot to get their points out. Watch the video of this episode: https://www.courtroomsciences.com/r/bcz

The Litigation Psychology Podcast - Episode 232 - Considerations for Selecting an Expert Witness

Bill Kanasky, Jr., Ph.D. talks about how to select experts for trial testimony. One option is to pick national experts and another approach is to choose an expert who is more local to the venue. Bill walks through some important considerations when selecting an expert witness: - How much time does the expert spend testifying professionally?- How much of their income comes from testifying as an expert witness?- How effective as a witness are they in addition to being a subject matter expert?
The decision about who would make the best choice as your expert depends on a number of factors:- What do mock jurors think about professional expert witnesses? To find out, do the research to learn how much that matters to jurors. - How often does the expert testify for one side vs. the other? Jurors will have thoughts on this and you need to understand how they feel about any imbalance. 
Oftentimes jurors prefer local/regional experts, however, they have to be a good witness and their testifying performance is as important as their expertise and local presence. The combination of all these considerations (local/national; percentage of income that comes from testifying; volume of work done for one side vs. the other; etc.) is what matters to jurors. Lastly, remember that juries don't make decisions on liability or damages based solely on expert testimony.

The Litigation Psychology Podcast - Episode 231 - From the Trenches - Q3 2024

Bill Kanasky, Jr., Ph.D. and Ava Hernandez join host Steve Wood, Ph.D. for another edition of From the Trenches where they discuss recent observations and updates from jury research projects, witness trainings, and cases that the CSI team have been working on. First, they talk about how too many attorneys wait until close to trial to contact the CSI team for help with training witnesses for trial and/or jury research, or even jury selection, and the problems with waiting until the eve of trial to bring in help. They discuss the more appropriate timing to prepare witnesses for trial and why starting early is important, particularly with emotional or challenging witnesses, because of the significant time it takes for behavior change. Next, they talk about the pitfalls of having the witness's spouse present during their testimony and why the spouse should not be involved in a witness's deposition preparation nor in the courtroom. Ava shares how defense attorneys should prepare for aggressive plaintiff counsel questioning of emotional witnesses and how the training for these emotional witnesses needs to be handled during preparation. The team also discuss use of interpreters and how some witnesses for whom English is a second language sometimes request an interpreter for their deposition, however, they are fluent enough that an interpreter is not needed and actually creates a credibility issue. Lastly, the group talk about how the qualifications of an expert witness do not always translate to a strong performance during testimony. Watch the video of this episode: https://www.courtroomsciences.com/r/PJQ

The Litigation Psychology Podcast - Episode 230 - Fact or Fiction?

Paul Motz, Shareholder and Trial Attorney, at Segal McCambridge Singer & Mahoney joins Bill Kanasky, Jr., Ph.D. to dispel several myths around litigation and talk about what's fact and what's fiction. Paul and Bill discuss whether jurors hate corporations, whether the person most knowledgeable should always serve as the corporate representative, whether someone who has been deposed many times before is a good witness for subsequent depositions, whether witnesses can win the case at deposition, whether witnesses are more vulnerable during a Zoom deposition, when to prep witnesses for trial, whether the former employee is always a horrible witness, whether mock trials are superior to focus groups, and whether witnesses with tattoos or piercings have credibility issues with jurors.

The Litigation Psychology Podcast - Episode 229 - Getting to Know Steve Wood, Ph.D.

Steve Wood, Ph.D. joins host Ava Hernandez to discuss his background and how he got into the litigation consulting business. Steve shares details on his education and his interest in how people make decisions which he applies to his role as a litigation consultant. Ava and Steve also talk about their fascination with how people behave and in particular how people's perspectives are influenced by their interactions with others especially within the context of the litigation process. Steve discusses the changes he has seen in litigation since he started as a litigation consultant and the aspects of litigation research that he finds the most fascinating. Lastly, Ava and Steve discuss the importance of humanity in the approach to litigation, even in an adversarial business. Watch the video of this episode: https://www.courtroomsciences.com/r/KgM

The Litigation Psychology Podcast - Episode 228 - Managing Trial Stress

Bill Kanasky, Jr., Ph.D. talks about how to manage stress during trial. Bill shares the three areas to focus on: physical health, emotional health, and mental health. 
Physical health keys: 1. Protect your sleep - really important to get plenty of restful sleep. 2. Exercise - get your body moving, even if its just for a few minutes by taking a walk or a short run. 3. Eat right - you have to eat well and eat right; ignoring your diet is a recipe for poor performance. 
Emotional health: To preserve your emotional health, focus on making a self health plan. Carve out time for your family, every day during the trial.  
Mental health keys: Maintain positive thinking patterns. Avoid negativity and second-guessing. Control your emotions and avoid amygdala hijack.
Watch the video of this episode: https://www.courtroomsciences.com/r/UvM