The Litigation Psychology Podcast

The Litigation Psychology Podcast - Episode 79 - Strategies for Settlement Negotiations

Kellie Howard-Goudy, Attorney with Collins Einhorn Farrell, joins the podcast to talk about strategies for settlement negotiations. Since over 95% of cases settle, honing the skills and process to manage settlement negotiations is a critical skill for litigators. Kellie shares her strategy for settlement negotiations with Dr. Steve Wood including developing a risk/benefit analysis. Communication with the client is also key to the settlement strategy as it is important to consistently remind your client about the definition of a win. Kellie also talks about how critical it is to know the strengths and weaknesses of your case and the opposing counsel's case, as well as knowing what your case is worth, in advance of entering into settlement negotiations. Lastly, Kellie and Steve discuss the impact of Covid on settlement negotiations and the expected volume of settlements, the importance of doing jury research and working up a case as if it will go to trial and not assuming your case is going to resolve. Watch the video of this episode: https://www.courtroomsciences.com/r/7aE

The Litigation Psychology Podcast - Episode 78 - Bluewire: Trucking Litigation Defense Software

Steven Bryan, CEO and Doug Marcello, Chief Legal Officer, of Bluewire join the podcast to talk about their new company that uses software to help trucking companies identify reputational vulnerabilities in the defense of their litigation. Steven provides some background on how the company came about and their areas of focus. Bluewire has identified reputation as a key contributor to nuclear verdicts and Steven and Doug share how leveraging technology, data, and a network of experts helps give the trucking industry the tools to defend themselves against Reptile and nuclear verdicts. They also discuss the Motor Carrier Reputation Survey on their website and how trucking companies and insurance carriers can participate and benefit.
Doug and Steve talk about the importance of information exchange and educational programs within their network of trucking companies and how addressing vulnerabilities ahead of time is useful for underwriters and excess carriers who are looking for ways to reduce their reputational risks in litigation. The group also highlights how this technology and data can help reduce nuclear settlements by resolving cases early through early identification of vulnerabilities.
Lastly, Steve, Doug, and Bill discuss the exposure created by internal company documentation about safety that paint trucking companies into a corner and how they would benefit immensely from a proactive review of all company materials to identify and address these vulnerabilities, which are potential attack opportunities for plaintiff attorneys. Watch the video of this episode: https://www.courtroomsciences.com/r/b5q

The Litigation Psychology Podcast - Episode 77 - Safety is NOT Your Top Priority

Sean Murphy, Practice Leader, CSI Critical Communications joins Dr. Steve Wood to talk about the myth that safety is the top priority for most businesses. Many company communications, mission statements, and handbooks default to stating that the safety of their employees/customers/shareholders/community is the foremost priority of their business, but this unnecessarily blanket claim can create potential litigation issues in the future. And this issue has become even more pervasive since the start of the Coronavirus pandemic. 
Sean and Steve discuss the importance of companies aligning their crisis communications with their litigation strategy and understanding the potential legal ramifications of a seemingly innocuous public statement. They specifically discuss the myth about "Safety being the top priority" for a company and how, when Covid hit, many companies sent out messages that stated that the safety of their customers and employees and communities  was their top priority, but how safety should be communicated as A priority but not THE top priority. Sean explains how the messaging and positioning of the concept of safety should be handled and how, now that companies are deciding to bring employees back into the office, opening up their businesses/stores, etc., how they should craft their messaging to limit future litigation risk and exposure. 
Sean and Steve discuss the importance of doing research to figure out what messaging will resonate with your target audience, plus crafting messaging that doesn't box you in in the future. They also talk about using messaging that is specific to what the business is doing to address the specifics of the crisis situation they find themselves in, rather than simply defaulting to the headline of "safety is our top priority". Watch the video of this episode: https://www.courtroomsciences.com/r/N2V

The Litigation Psychology Podcast - Episode 76 - What Young Attorneys Need to Know

Our guest for this episode of The Litigation Psychology Podcast is Punam Kaji, Assistant General Counsel for Ben E. Keith. Punam is focused on employment and litigation matters for the company and is the 2021 winner of the Outstanding Young Lawyer Award of Tarrant County (TX) Young Lawyers Association. She shares with Dr. Steve Wood some of her background as a young attorney and how her experience has benefited from working in a law firm as well as in-house. 
Punam talks about how young attorneys can help their firm's litigators assess how strong their case is for trial, particularly by conducting witness interviews early in the case. Young attorneys can also gain great experience by helping to work up the details of a case. They can make themselves valuable in managing the case by knowing all of the details of the case, understanding the case inside and out and looking at the case from the opposing side's standpoint to bring that perspective to the trial team. 
Punam also emphasizes the importance of young attorneys learning about the business of their clients, how they operate, their culture, vocabulary, etc. and how valuable that knowledge can be when working with their clients. Lastly, she shares her thoughts on how young attorneys can build a book of business and the importance of the critical step of asking for the work. Watch the video of this episode: https://www.courtroomsciences.com/r/p3X

The Litigation Psychology Podcast - Episode 75 - Frequently Asked Questions

A special episode for the 75th edition of The Litigation Psychology Podcast. Dr. Bill Kanasky answers questions that have come in from podcast viewers and listeners. The questions asked and answered:
- Should I do my mock trial in the actual venue of the lawsuit?- How should I handle confidentiality and do you recommend using real names in the mock trial?- My witness is not responding back to me. What do I do?- I started my opening statement with the company commercial to humanize my client, but I got hit with a nuclear verdict. Why did my approach backfire?- My witness won't shut up during prep and is trying to win the case in the deposition - how do I stop this?- My witness speaks very little English - what is the best way to conduct witness prep with a translator?- Are jurors angry in the post-Covid era?
Listen to this episode to hear Dr. Kanasky's answers to these questions. Have your own questions? Send them to bkanasky@courtroomsciences.com.  Watch the video version of this episode: https://www.courtroomsciences.com/r/d5v

The Litigation Psychology Podcast - Episode 74 - How to Manage and Prepare Emotional Witnesses for Deposition

Attorney Matt LaBeau with Collins Einhorn Farrell joins Dr. Steve Wood to discuss preparing emotional witnesses for deposition. Matt talks about the different types of emotions that witnesses might be struggling with (sadness, anger, nervousness) and how important it is to identify in advance if your witness may be an emotional one so that the attorney and consultant can offer the proper level of preparation and training. Matt shares some examples of emotional witnesses he has worked with where things went well, as well as the story of a challenging witness whose testimony ended up sinking the case. Steve and Matt give examples of depositions where the emotional witness gets themselves into situations where the attorney can't do much to help and how that can be avoided with advance preparation and training. They also touch on Reptile and the impact of Reptile plaintiff tricks, plus difficult witnesses who won't meet with the attorneys and how to find ways to work with those types of witnesses. Matt shares the approach he uses when identifying an emotional witness including determining what their emotions are, how he meets and talks to them to make a connection, how he takes time to explain the process and help them understand how to deal with opposing counsel, etc. Lastly, Matt and Dr. Wood discuss the challenges of Zoom depositions and managing the witness's needs in a virtual setting and the impact of cases related to Covid deaths and the challenge of witnesses for those types of cases. Watch the video of this episode: https://www.courtroomsciences.com/r/mL4

The Litigation Psychology Podcast - Episode 73 - Cognitive Fatigue of Witnesses at Deposition

In this episode of The Litigation Psychology Podcast, Dr. Bill Kanasky talks about preventing nuclear settlements at deposition by doing a better job of managing the cognitive fatigue of witnesses during deposition testimony. Scientific evidence makes clear that witnesses begin to fatigue mentally at around the 35-minute mark, so the "take a break once per hour" philosophy of most attorneys is a major strategic mistake.
Dr. Kanasky highlights the key factors that contribute to cognitive fatigue:
negative reinforcement (plaintiff attorney wearing down the witness);
virtual testimony (virtual sessions can be more draining than live);
reptile (reptile questioning is challenging to navigate and it takes a lot of mental energy from the witness to deal with reptile deposition questioning);
stress of the litigation itself (fear, anxiety, irrational thoughts, etc.);
litigation guilt and sorrow (witness's guilt about negative outcomes);
corporate representatives who have a higher level of burden on their testimony than standard fact witnesses;
personal issues not related to the litigation (divorce, family issues, financial problems, substance abuse issues, etc.)
All cognitive fatigue issues are preventable. The ways to prevent cognitive fatigue is by properly assessing the mental state of your witnesses well in advance of deposition preparation, providing your witnesses with the appropriate level of neurocognitive training so they are fully prepared for the stress of deposition, identifying the right break schedule for the witness based on their personal situation, and being aware of the pace of the interaction to adjust the breaks accordingly.
Watch the video of this episode: https://www.courtroomsciences.com/r/g8g

The Litigation Psychology Podcast - Episode 72 - Trucking and Construction Litigation

Eric Miersma, Attorney with Balestreri Potocki & Holmes, and a former commercial truck driver, joins the podcast to discuss both trucking and construction litigation. Eric compares and contrasts the two different types of litigation, noting that construction players often have lots of experience with litigation but with most of the smaller trucking companies that he works with, they often have much less experience with litigation. Eric and Dr. Bill Kanasky discuss witness performance at deposition and trial and how Eric approaches the witnesses he works with in order to build trust and rapport. They talk about the challenge of working with terminated employees as witnesses, as well as foreign born witnesses. In addition, Eric and Bill discuss the strategy of admitting liability and how to position this with the jury. Lastly, they touch on the new challenges of jury selection in the current world of social unrest, political turmoil, and Covid. Watch the video of this episode: https://www.courtroomsciences.com/r/xw7

The Litigation Psychology Podcast - Episode 71 - Mental Health Awareness

May is Mental Health Awareness Month. Whitney Burkett, Associate Attorney with Anderson, Rasor & Partners, and CSI Litigation Consultant Dr. Alyssa Parker join Dr. Steve Wood to discuss mental health, and in particular the mental health of witnesses. Whitney and Alyssa discuss the importance of assessing the mental state of witnesses in advance of their preparation for testimony and understanding their overall mental health. Sometimes witnesses can be experiencing mental health stressors that go beyond the litigation which can impact their ability to avoid opposing counsel tricks and feel confident and calm for their deposition testimony. The group also talks about the importance of helping witnesses who are struggling with their mental state to understand that its okay to be having these stressful feelings and concerns and why discussing them will better prepare them for the battle of testimony. Dr. Parker provides an explanation of an amygdala hijack and the danger of the fight or flight response that is activated when the amygdala is hijacked due to emotion. Lastly, they discuss the impact of COVID on witnesses, how to prepare witnesses for virtual depositions, and the necessity of getting comfortable talking about witness' emotional well-being and mental health. Watch the video version of this episode: https://www.courtroomsciences.com/r/egp

The Litigation Psychology Podcast - Episode 70 - Traumatic Brain Injury Cases

Rick Joslin, Attorney with Collins Einhorn Farrell, talks to Dr. Steve Wood about Traumatic Brain Injury cases and some of the considerations when managing these types of cases. Rick and Steve discuss the challenges in defending traumatic brain injury cases which aren't always as visible as a physical injury and how the plaintiff's bar uses neuropsychological testing in making their case. Rick shares some of the approaches he has taken to be successful in defending traumatic brain injury cases and highlights and explains the importance of obtaining specific types of records early in the process including medical records, high school records, plus EMS records and emergency department records. Lastly, Rick and Steve talk about how a diagnosis of a traumatic brain injury is derived and how well jurors understand these types of traumatic brain injury cases in order to deliberate and arrive at their verdict. Watch the video version of this episode: https://www.courtroomsciences.com/r/ZQB