The Litigation Psychology Podcast

The Litigation Psychology Podcast - Episode 239 - Career Insights from a Panel of Defense Attorneys

Bill Kanasky, Jr., Ph.D. is joined by Associate Attorney Jeffrey Oates, Attorney Kristin Petty, and Attorney Jason Preciphs from the law firm of Roberts, Carroll, Feldstein, and Peirce. Bill's guests describe the diverse types of cases their firm works on, how their firm attracts and retains associates, and how they provide growth opportunities for their attorneys while also growing the firm. The group share how they talk to clients about getting early career attorneys in their firm the experience they need to be beneficial to the firm's clients. Bill asks the attorneys what surprised them about civil litigation when they first got involved in it and what advice what they would give to younger attorneys. The group have a discussion about artificial intelligence (AI) in legal, what their firm's philosophy is regarding AI, and how they use AI personally. Bill asks the guests how they talk with their clients about the definition of a win and how to help clients realize the benefits of working up cases earlier, particularly by using focus groups. Lastly, the group talks about how they each protect their mental and physical health and maintain a healthy work/life balance in a highly stressful environment and career. Watch the video of this episode: https://www.courtroomsciences.com/r/LfO

The Litigation Psychology Podcast - Episode 238 - The Art and Science of Voir Dire with Unique Questions

Bill Kanasky, Jr., Ph.D. talks about unique voir dire questions, particularly around damages, to help attorneys improve their jury selection process and to set the stage for openings. Bill gives examples of topics to ask about during voir dire that help to indoctrinate jurors. Some of the topics for questions Bill discusses: social inflation, lawsuit abuse, justice for the defense, commenting on articles/social media, anchoring, and open-ended questions. Watch the video of this episode: https://www.courtroomsciences.com/r/gYg

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.