The Litigation Psychology Podcast

#186 - Building Rapport Early With Your Witnesses

Brenda Smith, Attorney with Dvorak Law Group, joins Bill Kanasky, Jr. Ph.D. to discuss the importance of conducting an early, thorough assessment of witnesses before beginning deposition prep and to make a connection with witnesses before even starting prep. This early assessment allows the litigation team to address any issues in advance of deposition prep so the preparation can be more impactful and deliver positive outcomes. 
Brenda and Bill talk about working with witnesses who may be suffering from emotional issues and/or physical injuries from the accident. Brenda shares her approach for witness preparation, including starting the preparation very early, and checking in regularly with the witness to build rapport and see how they are doing with any physical or emotional  issues they may be dealing with. Brenda and Bill discuss how these check-ins are critical to building a connection with the witness, allowing them an opportunity to vent, and continually reassuring the witness that the litigation team is there to help and will be with them throughout the litigation process. 
Brenda and Bill give specifics on a recent case they worked on with an emotional and injured driver. The driver was being triggered by the video evidence and was having difficulty with acknowledging his culpability in the accident after viewing the video. They also talk about how important the support of the trucking company was in helping the driver in this difficult situation and how the owner of the trucking company even met with the driver face-to-face to express the company's support and assistance for the driver. Watch the video of this episode: https://www.courtroomsciences.com/r/xft

#185 - Biggest Mistake by Defense Attorneys in Depositions

Bill Kanasky, Jr., Ph.D. talks about the biggest mistake defense attorneys are making at deposition, which is the erroneous assumption that the beginning of the deposition, when plaintiff's counsel is questioning the witness on background information, is not important. The witness (and the attorney) need to understand that those background questions are part of the setup for the plaintiff attorney and are critical for establishing good habits in responses from the witness that will need to be applied during the rest of the deposition. When witnesses get too comfortable with answering background questions, which are not perceived as threatening to the witness, they put themselves at a higher degree of risk to slip up when the questions become more difficult. Defense attorneys need to take the background questions seriously and practice them with their witnesses so they don't fall for the trap being setup during the background questions. It is imperative that defense counsel work with witnesses to establish proper habits in answering questions right from the outset of the deposition.

#184 - The Power of Mentorship

Dr. Jonathan Glenn, Director of Diversity and Inclusion at Alma College, joins Steve Wood, Ph.D. to discuss mentorship. Jonathan talks about the power of mentorship and describes both formal and informal mentorship and how they differ. Jonathan shares how great mentors are able to see things within others that they can't see within themselves. Strong mentors challenge "safe dreams" and push others to dream even bigger. Jonathan describes some of the challenges with getting mentorship from potential mentors who are intimidated by confident, talented mentees and the importance of identifying mentors who want success for their proteges and are supportive of their needs and goals. Lastly, Jonathan describes the four key elements of successful mentorship: consistency, commitment, passion, and communication. Dr. Glenn's TedX talk can be seen here: https://www.youtube.com/watch?v=w2faGK8uRsI Watch the video of this episode: https://www.courtroomsciences.com/r/PE7 

#183 - The Problem with Witnesses Who Pivot

Bill Kanasky, Jr., Ph.D. shares the issues with a witness he is training for trial testimony and the witness's problem with pivoting, which he did extensively in his deposition. This witness's deposition included responses that went on way too long, responses that came way too quickly, including speaking over the questioner, and most of his responses to questions about facts were pivoting responses like "Yes, but....". Witnesses must accept facts - facts are facts. Bill describes how he will be approaching the training for this witness based on what he observed in his deposition testimony in order to fix the mistakes that were made so they aren't repeated during his trial testimony.

#182 - Deepfakes in Litigation

Fred I. Lederer, Director of the Center for Legal & Court Technology (CLCT) and Daniel Shin, Cybersecurity Researcher for CLCT join Steve Wood, Ph.D. to discuss the topic of deepfakes in litigation. Fred and Daniel provide the background and history of CLCT and how the center has expanded its focus to new and emerging technologies including machine learning and AI. Daniel defines what a deepfake is, how deepfake technology is being used and applied, and the group discuss the implications of deepfakes on litigation. Fred brings up the impact on admissibility of evidence as well as the larger concern of the triers of fact not believing whether any digital, video, photographic, or physical evidence is real. Daniel shares how some companies have been creating technology to authenticate digital content to aid in dealing with deepfakes, though this technology is still in its infancy at this time so education on what is happening with deepfake technology is key in the legal space. Lastly, Fred and Daniel share details about the courtroom at William & Mary Law School, which is considered to be the most technologically advanced courtroom in the country. Learn more about CLCT here: https://law.wm.edu/academics/intellectuallife/researchcenters/clct/. Watch the video of this episode: https://www.courtroomsciences.com/r/E5q 

#181 - Listener Mail

Bill Kanasky, Jr., Ph.D. answers podcast listener mail:
- How can my client be better prepared for litigation before the court case is even filed?
- Do online jury projects work?
- If the witness only has two hours, is that enough for witness preparation and training?
- How long does it take to properly train a witness?
- When should I talk about damages at trial? - My witness is using marijuana to deal with their anxiety about the case. What should I do?
- What are the top opening statement mistakes?

#180 - Assessing & Managing Witness Mental Health Issues

CSI Litigation Consultant Ava Hernandez, M.A. joins Bill Kanasky, Jr., Ph.D. to discuss witness mental health. Often, fact witnesses that are preparing for deposition may be suffering from psychological issues that could impact their performance during prep and especially during the actual deposition. Bill and Ava talk about how witnesses that have been summoned to testify could be dealing with anxiety not just about the litigation itself, but also other issues in their personal and professional lives that make it challenging for them to focus and perform during deposition prep. All witnesses need to be evaluated, assessed, and any emotional or mental issues need to be identified and addressed, before the attorney begins their deposition preparation with the witness. They also discuss how some witnesses will appear to be doing better than they actually are and may be reluctant to allow others to know how they are really feeling, so working with someone who has experience asking the right questions of the witness to assess their true emotional and mental state is crucial. It's important to acknowledge how unfamiliar the situation is, to validate their feelings, and process those feelings so they can focus fully on the preparation. Lastly, Bill and Ava discuss practical steps that can be taken with witnesses to maximize their deposition performance. Watch the video of this episode: https://www.courtroomsciences.com/r/Aiq

#179 - Operant Conditioning & Witnesses - Part 1

Steve Wood, Ph.D. & Bill Kanasky, Jr., Ph.D. discuss the concept of operant conditioning and how it can be used with witnesses, particularly during deposition prep. Dr. Wood defines operant conditioning as the creation of an association between a behavior and the outcome. There can be both positive reinforcement and negative reinforcement, though its important to understand that negative reinforcement is not the same as punishment. Negative reinforcement is the elimination of a negative stimulus, not punishment. When working with witnesses to make them feel comfortable and confident about their performance during witness prep, its important to balance the negative feedback with the positive and be specific with the positive feedback so the witness understands what they are doing well and can draw on that as the prep continues. Negative feedback has to be constructive and the timing of any feedback, positive or negative, must be given at the moment that it is recognized. The witness must be able to recognize the association between their answer and the feedback. Watch the video of this episode: https://www.courtroomsciences.com/r/erz

#178 - Expert Advice on Negotiation in Litigation

Bill Mitchell, Founding Partner, Cruser & Mitchell joins Bill Kanasky, Jr., Ph.D. to discuss negotiation in litigation. Bill Mitchell shares his philosophy on managing litigation and comments on the lack of focus on the negotiation phase of litigation vs. the outsized focus on trial, when fewer than 1% of cases go to trial. Bill talks about mistakes that he sees defense attorneys making including not identifying the leverage point for every case and not being an open communicator and engaging in open discussions with opposing counsel. Bill Mitchell discusses his approach when dealing with plaintiff attorneys who are not willing to negotiate and how important communication is in those situations. Lastly, Bill talks about timing for negotiations, parachuting in on cases, and how he handle multiples co-defendants. Watch the video of this episode: https://www.courtroomsciences.com/r/mEq

#177 - Artificial Intelligence (AI) in Litigation

Gene Kissane, Partner at Cole Scott & Kissane, John Nunnally, Attorney at Ragsdale Liggett, and Billy Davis, Partner at Bovis, Kyle, Burch & Medlin join Bill Kanasky, Jr., Ph.D. to talk about the hottest topic in the legal industry today: Artificial Intelligence. The group discuss their initial perspectives on how they think AI is going to impact the legal field and litigation, what the discussions are about AI in their firms, and how they are using AI today. They talk about whether AI is an existential threat to law firms and how lawyers will adapt their way of doing business since the introduction of AI. The group shares ideas about efficiencies that they can see when leveraging AI including as a starting place for drafts and for business process applications such as accounting and billing. They have a broader discussion about the billable hour and flat fees and how AI may have an impact there and how important it is to recognize the places where AI can help and where its not appropriate to use in the legal space. The group also talk about what clients may expect from their firms with regards to using AI as well as whether AI is an advantage for plaintiff's attorneys over defense attorneys. Lastly, the panel discusses how questions about using or not using AI in specific cases such as med mal and transportation may come into play and be leveraged as a potential new standard of care. Watch the video of this episode: https://www.courtroomsciences.com/r/9hn