The Litigation Psychology Podcast

The Litigation Psychology Podcast - Episode 194 - Managing the Teaching Moment During Trial Testimony

Bill Kanasky, Jr., Ph.D. talks about how to manage the teaching moment during trial testimony. When your expert witness or defendant is put on the stand with the goal of teaching the jurors something, your witness must meet the jury where they are. It's important to remember the concept of juror cognitive lag, which is that jurors will lag behind in their cognition and your witness has to understand that the jurors are not going to be able to follow along easily. So, the witness has to make adjustments to their teaching methodology and you and your witness have to practice the teaching process, perhaps up to 5-10 times. 
Common mistakes that are made during the teaching moment of trial: 
- Going too fast - have to remember that the jury can't ask questions or ask the witness to slow down. - Visuals are not juror friendly - exhibits and demonstratives need to be easy for jurors to understand and follow; it's important to test the visuals before using them at trial. - Talking above the juror's heads - have to define any terms that the witness is using that might be uncommon or unfamiliar to the jurors and use examples or analogies to help the jurors understand the concept the witness is trying to teach or explain.

The Litigation Psychology Podcast - Episode 193 - Defense Attorney Strategies for Deposition

Bryan Aghakhani, Partner, Bordin Semmer joins Bill Kanasky, Jr., Ph.D. to talk about the attorney perspective on the deposition. Bryan states that cases are won or lost at deposition and that the preparation before deposition, and being actively engaged at deposition with objections, is key for defense attorneys when defending depositions. Bryan and Bill discuss the difference in preparing a fact witness and a corporate representative 30(b)(6) for deposition and also talk about the strategy and approach for taking a plaintiff's deposition. Bryan shares his thoughts on taking the deposition of the plaintiff's expert and the philosophy around hiring an expert for the defense. Watch the video of this episode: https://www.courtroomsciences.com/r/HvF

The Litigation Psychology Podcast - Episode 192 - The Fallacy Behind Humanizing the Corporation for Jurors

Steve Wood, Ph.D. & Bill Kanasky, Jr., Ph.D. talk about the misperception that humanizing the corporation is valuable and relevant to jurors. Often, defense counsel and the companies they represent want to talk at trial about how their company is made up of individuals just like the jurors, how much the company gives in charity, how many volunteering activities they do, and more. Steve and Bill debunk the assumption that time spent humanizing the company will make jurors more sympathetic toward the company. Talking  about all of the things the company does that "humanizes" them is a waste of valuable time and doesn't resonate with jurors. Rather, the way that the corporate rep for the company presents at deposition and trial is much more important than focusing on the humanizing the company. The person representing the company needs to be authentic, caring, compassionate, etc. and this will be much more meaningful and impactful with jurors than a company "commercial" that tries to humanize the company.  Watch the video of this episode: https://www.courtroomsciences.com/r/40U

The Litigation Psychology Podcast - Episode 191 - The Science Behind How Depositions Start

Dr. Bill Kanasky, Jr., Ph.D. talks about the science behind how depositions begin. Most opposing counsel start off being friendly and nice and asking very simple, non-threatening questions at the beginning of the deposition to get the witness's guard down. The witness's brain gets comfortable with these easy questions which allows opposing counsel to take advantage of their comfort with later questions that are case specific and include bad facts and other difficult topics. The whole goal for plaintiff attorneys is to disarm the witness and turn the dynamic into a conversational situation to get the answers they are looking for. Witnesses need to be taught that these initial questions are a trap and must be taken as seriously as the more challenging case specific questions that will come later in order to establish the proper cognition for all questions. All types of questions that opposing counsel will ask should be practiced. 

The Litigation Psychology Podcast - Episode 190 - Health & Fitness in the Trucking & Transportation Industry

Dr. Mark Manera, Founder and CEO of Supply Chain Fitness, joins Bill Kanasky, Jr., Ph.D. to talk about fitness in trucking and transportation. Mark is a physical therapist and founded his company after identifying the level of unhealthiness in the trucking industry. Bill and Mark discuss the challenges with helping transportation companies understand the value and return on investment in health and physical fitness programs and how Mark has been addressing some of the objections to costs for these types of programs. Mark describes the programs his company offers including exercise, nutrition, and coaching and how he works to make things simple and accommodating for drivers such as exercises that can be done outside the truck, inside the truck, etc. He also provides nutritional guidance and healthy options for eating while on the road. Lastly, Bill and Mark talk about the impact of small changes, sleep hygiene, and the importance of rest. Watch the video of this episode: https://www.courtroomsciences.com/r/9kK

The Litigation Psychology Podcast - Episode 189 - Competing Priorities at Deposition Prep

Ava Hernandez joins Steve Wood, Ph.D & Bill Kanasky, Jr., Ph.D. to discuss competing priorities at deposition prep. The client, attorney, and witness are all involved at different levels in the deposition prep though sometimes the goals for each aren't aligned and may be in conflict with one another. The group discusses the witness's perspective and how their brain is wired to survive which, if not properly trained, may lead to answering questions in a non-ideal way. The attorney may be focused on defending their client and may not fully understand how a witness should be prepared in order for them to deliver their best performance. And the client might also be advocating for defending themselves and not aware of what the purpose of the deposition is (hint: its not to win the case) which is to get to the other side of the deposition without making things worse. 
To address these competing priorities, it's important to get alignment on the objectives before any deposition prep starts and to invest the time with the witness to evaluate, assess, and address any emotional issues or concerns that the witness may have to ensure they can be successful with the training and prep. The witness's needs and perspective must be front and center and attorneys and clients should treat them as an integral part of the process so they understand their role and why the legal team is asking them to do what they are asking for. Watch the video of this episode: https://www.courtroomsciences.com/r/b6a

The Litigation Psychology Podcast - Episode 188 - Effective Listening Skills for Witnesses During Testimony

Bill Kanasky, Jr., Ph.D. talks about the importance of effective listening skills by the witness during testimony. Listening is a skill that must be taught by a neurocognitive expert because the brain is not wired naturally to listen, particularly to the degree required during questioning. Bill dispels the myth that witnesses should engage in active listening during their testimony. Active listening is a communication tactic whereby the listener is analyzing the gestures, body language, tone of voice, posture, etc. of the speaker to understand their point and then when responding, adjusting the listener's own body language, tone, gestures, etc. to acknowledge you understood what the speaker was saying. The skill of active listening is not meant for an adversarial situation like a deposition or trial. 
When preparing a witness for testimony, you want your witness to practice passive, focused listening and not spending energy on trying to interpret opposing counsel's body language, tone, and posture as these can be a trap for your witness. In an adversarial environment like testimony, active listening will actually hurt the witness as the opposing counsel is often trying to manipulate the witness. The purpose of active listening is to send non-verbal signals to the speaker to acknowledge that you are hearing and understanding what they are saying. This is not relevant or appropriate during testimony.

The Litigation Psychology Podcast - Episode 187 - Operant Conditioning & Witnesses - Part 2

Steve Wood, Ph.D. & Bill Kanasky, Jr., Ph.D. discuss part 2 of the operant conditioning topic and how opposing counsel uses operant conditioning to derail witnesses during both deposition and trial testimony. Operant conditioning is the creation of an association between a behavior and the outcome and can include positive reinforcement, negative reinforcement, and punishment. It's important to understand that negative reinforcement is not the same as punishment; negative reinforcement is the elimination of a negative stimulus, not punishment. 
Witnesses need to educated on how the questioner could use operant conditioning during their questioning, including rewarding answers that opposing counsel likes and delivering negative reinforcement for answers they don't like. This is challenging for an untrained witness's brain to decipher and manage. Bill and Steve discuss how powerful negative reinforcement is and also how positive reinforcement is used to manipulate the witness. Lastly, they discuss the topic of punishment and how opposing counsel can use punishment with witnesses to achieve their objectives. Watch the video of this episode: https://www.courtroomsciences.com/r/Lml

The Litigation Psychology Podcast - Episode 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

The Litigation Psychology Podcast - Episode 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.