Bill Kanasky, Jr., Ph.D. delivers a detailed lecture on the concept of neurocognitive remapping and why the human brain is not neurologically equipped for the pressures of litigation. He explains that 95% of witness errors are psychological, not legal or strategic, and that traditional attorney-led preparation often fails because it overlooks critical elements like cognition, emotion, and behavior. Neurocognitive remapping is a science-based process that helps witnesses respond to high-stress litigation stimuli in a calm, logical, and strategic manner.
Bill explains how the brain is evolutionarily wired for workplace and social environments, where quick responses, cooperation, and elaboration are rewarded. However, those same behaviors become liabilities in testimony. A core focus of the training is slowing down cognitive reflexes, as fast answers often lead to volunteering harmful information or falling into traps set by opposing counsel. He introduces the question-answer cycle, a temporal model showing how witnesses can control half of the deposition process through deliberate pacing – improving cognition and limiting vulnerability by reducing the number of questions the opposing attorney can ask.
The remapping process includes assessing each witness’s cognitive, emotional, and communication profile, simulating real testimony pressure, and using operant conditioning through immediate feedback and reinforcement. Drawing from sports psychology, the training builds emotional regulation, focus, and mental endurance to keep witnesses functioning from the prefrontal cortex – the part of the brain where logic and impulse control reside – rather than slipping into amygdala hijack and fight-or-flight responses. Bill emphasizes this is not basic witness coaching, but a structured neurocognitive program that cultivates control, composure, and precision, ultimately producing testimony that is sharp, accurate, and resistant to tactics like the Reptile and Edge Theory.
Full Episode Transcript
[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky. I created a lecture for you today. Got it right here. Print—made it up, printed it out, and it’s going to be all about witness training and why the witness brain is not wired for litigation and what we’re actually doing with witness training. I think this is a really important topic. We’ve covered this before, but not quite in depth like this. And the reason why this topic is so important because there’s—there’s not much of this anymore after decades of screaming at the top of my lungs.
But there’s still kind of a handful of people out there that don’t understand what we do psychologically with witnesses and they don’t get it. Or they’ll say something like, “Well, why—why do I need help preparing a witness? I mean, I’m an attorney. That’s what I do.” Well, well, I have a lecture for you today to kind of walk you through what’s going on in the witness brain that’s leading to all these problems. Okay? And by the way, 95% of witness problems, errors, meltdowns are psychologically based. They’re not legally based. They’re not strategically based. I feel bad for attorneys because you spend hours and hours and days and days with your witness. Everything’s cool. You tell them all these things to do. You give them all your—your tips and then they go in and boom, it explodes in your face.
[02:01] Bill Now, before I get started on the lecture, I got to start with my rant because I went to the dentist yesterday for my cleaning. And I got—I listen, first off, I—I love my dentist. She is phenomenal. She went to the University of Iowa. Go Hawkeyes. Okay. And she’s about 15 minutes from me. She was my—because I got a different rant. Got—I think I ranted about this before where my previous dentist was ripping me off and I teed off on them. I was in the market for a new dentist. My sister said, “Hey, I—my—my dentist is great.” So, my sister sends me down there and it’s been—I’ve been going there for about five years. It’s been fantastic.
Here’s the problem though: the assistants there, right? Like the ones that actually do the cleanings, you know, dentist comes in at the end. It’s just fantastic. Kind of gives you a little update on how things are going. The—these—these—these uh, the dental hygiene folks doing the cleanings—phenomenal people, very, very nice—but I sit in the—this—this happens every single time. Every single time. And I’ve broughten it up and they don’t listen. I sit down in this chair and they get started and I feel like I’m an adverse witness being cross-examined at trial. This—this is how they treat me. And they’re not yelling at me, but I’m getting the—in fact, they’re like reptiling me in the dental chair. Like they’re doing their thing, right? And then the first question is, “So…” and it’s—it’s all like closed-ended cross-examination.
[03:43] Bill The first question is, “So, uh, you are aware that coffee can stain your teeth, correct? You know tea stains your teeth too? Coffee and—like, you know that, right? You are aware of that, sir, right?” This is how it’s starting. I’m—I just want my teeth clean, please. I don’t need the lecture. I drink coffee every day. I tell them that every single time. It’s in my file. “You know, coffee stains your teeth.” Then they move into the full kind of hypocrisy loop, right? The whole reptile edge of—then—then they move into, “So, you’ve been drinking a lot of coffee, haven’t you? Because I can tell.”
So, I’m getting—I’m getting coffee shamed in my dental chair every time I go. And I told them, listen, I—I’d blow my brains out if I didn’t have coffee every day. So, I—I’m not stopping. And yes, I’m aware it can stain your teeth. However, that’s why I’m coming to you every four to six months to kind of get me back to good. Okay. So, can you—can you stop with… Now, do—do you all go through this too? A lot of coffee drinkers out there in the legal industry. I was getting hammered every single time. “Drinking a lot of coffee. I can see, Dr. Kanasky.” Okay, I get it. I—I think you made your point. Good God.
[05:12] Bill So then after five years of just constant cross-examination twice a year, at the end my dentist says, “Oh, is this a—this is a good tip.” I did not know this. She goes, “Yeah, about these, you know, the coffee thing.” I’m like, “Yeah, yeah, been hearing about that—hearing about that the last 30 minutes.” She goes, “Every night, what you should do is get a little hydrogen perox—So, after you brush your teeth, get some hydrogen peroxide. Just pour some into like a little cup and wet your toothbrush and brush your teeth with that and that will—takes away the stains.” I’m like, “Took you five years for—for you to tell me this.” So now right there next to my sink I have my hydrogen peroxide and we’ll see what happens. In six months when I go back, see if the cross examination reptiling continues by my dental hygienists.
So that’s the rant for the day. Let’s get into witness training. So, okay. So, here’s the problem. This could be a long podcast. Here we go. Um, the witness brain is not neurologically prepared for litigation. It’s not wired for litigation. Okay? Got all kinds of things going on and none of it—none of it is—is—is the witness brain prepared for.
[06:41] Bill Now, in your witness prep session, uh, attorneys, you’re—you’re going to tell them a bunch of stuff. The problem is none of that’s going to work because the brain—the brain likes familiarity. It likes stability. Doesn’t really like to expend a lot of energy. And whatever positive habits you try to teach them, the brain is going to quickly regress and go back what it usually does every day. And that’s going to be a problem. Now, also, most attorney-based witness prep—and this is really important—addresses content and strategy. That’s key. And you attorneys do great work on this. Okay. However, it does not adequately—does not adequately address cognition, emotion, or behavior.
And this is where the wheels come off, folks. Okay? This leaves witnesses exposed, leaves them vulnerable because you’re putting all this work on strategy and content and then they start breaking down cognitively, emotionally or behaviorally or some combination and then the wheels come off and it’s a show and we’d like to avoid that. Okay. So, let me introduce to you kind of what—what I do, what our team does. And I built this from scratch based on my training. Let’s call this neurocognitive remapping. Neurocognitive remapping. Let’s define this for you. So, this is a strategic process of retraining a witness’s brain to process, evaluate, and respond to high stress litigation stimuli in a calm, logical, controlled, and strategic manner.
[08:55] Bill Now, the key word here is retrain. It’s retraining. You can’t just tell a witness to slow down. You can’t just tell a—and that’s what you do. Why? You’re attorneys. That’s your job. Problem is the witness brain is not going to cooperate with this. So, uh, some advanced training is going to be necessary to get this, uh, neurocognitive remapping done. So, when we focus on the rewiring, okay, we’re going to rewire neurocognitive and emotional reflexes because this is what’s killing the witness’s testimony. They’re going to regress to what’s familiar, which is work and social processing and communication. That’s what people do every day. It’s highly reinforced.
Say a witness goes into deposition or trial and they use that neurocognitive wiring to communicate with an adverse questioner and they will make every mistake in the book. So why is this neurocognitive remapping necessary? I’ve got—by—by the way folks, I got outlines right here. I got a long outline here. Got to take a deep dive in this. Okay. So, let’s talk about evolution. The human brain is evolution—from an evolutionary based standpoint—hardwired to survive in a social and work setting. Okay, these settings are not—generally not adversarial and not a lot of high stakes going on.
[11:05] Bill All right, think about what do people do every day? They hang around other people at work or socially, family, right? So, this is how the brain has evolved to be effective and to survive in those environments. Then we take them out of those environments. We put them in a deposition chair. Different ball game, right? Different ball game. And the—the brain, it’s—it’s not really the witness’s fault. Certainly not the attorney’s fault, but the brain’s going to do what it’s going to do. It’s going to rely on what it’s programmed to do. And all the program is based on work and social functioning. So, we have to essentially yank those wires out, rewire things.
Okay? So, for example, key behaviors such as cooperation, explanation, helpfulness are assets at work and socially. The exact same factors are liabilities and testimony. Okay, so there’s—there’s the crux of the problem. The things that are very successful and highly reinforced at work and in society are liabilities during testimony and witnesses can take—get taken advantage of pretty quick, right? So, let’s talk about the workplace. The workplace: explaining a lot at the workplace shows intelligence. Volunteering information at the workplace shows initiative. Agreeing in the workplace shows collaboration with colleagues. Rah rah rah. All right.
[13:03] Bill At dep or at trial, explaining and volunteering opens up new lines of attack. Agreeing to things, particularly generalities, leaves witnesses vulnerable into reptile edge traps, hypocrisy loops. When your witness gets on that yes train, like we’ve talked about, right, a string of agreements can get them in a lot of trouble. Preventable. Preventable. Now, how does—I mean we call this witness training to keep it simple, but it’s really neurocognitive remapping. That’s what we’re doing. How does this bridge the gap? Well, we have to cover a couple things here. We want to rewire the brain, so they avoid instinctual social behaviors. Okay? We want to—we want to avoid those because that’s what’s going to get us in trouble and avoid things like, again, overexplaining, defending, okay, reacting.
It’s what the brain’s wired to do. That’s what it does every single day, and it likes it because it’s highly reinforced. It’s comfortable. So, we have to get out of that. Um, as you all know, testimony, uh, well, specifically deposition testimony, not the time to tell your story. It’s about protecting credibility while under attack and usually while, uh, a camera’s rolling, right? On videotape. Very, very important. So, let’s talk about the scientific—neuroscientific foundations of all this. Okay. So, witness brain. So, we’ve talked about this many of times. It’s worth repeating. A couple issues going on here.
[15:07] Bill So number one, we have two brain systems. Okay, they’re kind of butting heads here. Okay, we have the prefrontal cortex system. That’s where you want to be. That’s where the money’s at. Okay. Prefrontal cortex, front part of your brain right here, controls logic. Okay. Rational thought, impulse control, executive functioning. It’s the most human, highest level of the brain. That’s where you want your witness to be. You want—you want that pre—prefrontal cortex lighting up for all of the testimony.
However, we have the subcortical systems, particularly the amygdala and hippocampus. This is where the fight or flight response is housed and we want to avoid that because then your witness goes into survival mode. They get defensive. They get argumentative. They get evasive. Fight or flight’s bad. Bad, bad, bad. Nothing—nothing positive is going to happen if your witness goes into fight or flight. And many witnesses, uh, that amygdala is on a hair trigger. Why? Evolution. It’s there to protect you. So, plaintiff attorney starts to introduce various types of threats. Amygdala hippocampus saying, “I got it. I got it. I got this.” And the wheels come off. That’s why it’s called amygdala hijack.
[17:04] Bill The amygdala will hijack the whole system, shut down the prefrontal cortex and that’s a sympathetic nervous system response. Worst possible place to be. Okay. Now, freeze, by the way, if you remember the freeze response, that’s deer in the headlights. That’s a hyperactivation of the parasympathetic nervous system. It’s not sympathetic. Fight or flight is sympathetic nervous system. Freeze is a hyperactivation of the parasympathetic nervous system, which is actually the relax—it’s actually where you want the witness to be. You want your witness in a parasympathetic mode because that’s relaxed, cool, calm.
The problem is if that gets hyperactive, turns into deer in the headlights. Okay, so that’s number one. Number two, cognitive fatigue. Wrote a paper about this, give speeches about this. This does not get nearly enough attention as it should. And, uh, sustained stress, particularly during long depositions, will erode witness attention, concentration, and executive functioning. That’s why these breaks got to come at 45 minutes. Hour’s too long. An hour is 15 minutes of vulnerability. Then you start multiplying that. The mult—the vulnerability multiplies over time. It’s got to be 45 minutes. Especially on Zoom deps. Zoom melts your brain. Fatigues faster. You got to understand the neuroscience to protect your witness because they’re going to sit there and be troopers the whole time. Okay, you attorney need to be watching the clock and protect the witness from cognitive fatigue.
[19:07] Bill This leads—this cognitive fatigue leads to all these unforced silly errors, just dumb stuff because the brain’s tired, doesn’t have the resources. All right? So, we got to protect that. Does not get enough attention. This whole, “Again, I give my witness a break every hour.” Yeah, it’s too late. It’s too late. Cognitive distortions. We’ve talked about this. Wrote a paper about this. Give speeches about this, right? Some witnesses catastrophize. “This is the worst thing ever. My testimony is going to torpedo the case. I’m gonna suck.” Right? All this negative thinking. Bad, bad, bad, bad, bad, bad. Polarized thinking: “If I’m not perfect in this dep, I’ve let everybody down.” Right?
We published a paper on this. There’s like 13 nasty, very, very nasty cognitive distortions that you really need to watch out with your witnesses. I’m not going to go over all 13. Read the paper. Okay? But yeah, we got that going on on top of everything else, right? So, there’s a lot going on neuroscientifically that we have to appreciate with the witness to get them where we want them to be. Now let’s throw in another wrinkle: the speed trap. Witnesses answer questions too quickly. And why do they answer questions too quickly? Because that’s what their brain is trained to do. Because that’s what they do at work and that’s what they do socially.
[20:57] Bill It’s what the brain is trained to do in work and social environments. What does speed mean? Speed of communication, speed of responses. It means competence. It means competence. You go ask your colleague something and boom, they’ve got the answer right there. This guy knows his… One of your clients calls—calls you with a legal question, what do you do? Boom. And your client’s like, “Hey, glad I got this person on my side.” Right? Speed equals competence at work and socially too, right? You’re in a social environment. Boom, boom, boom, boom, boom, boom, boom, boom. Speed’s fun. Keeps the conversation going. It’s highly efficient.
So quick answers in these two environments means again intelligence, competence, fast decision making, particularly at work. What does that mean? Means leadership. I’ve got this. Okay. Immediate responses, fast responses, show efficiency, respect, competence. Okay, this is how the brain is wired. So, the—so when you just tell a witness, “Oh by the way, now in—in deposition, I want you to really slow down,” and they go, “Okay, yeah, sure.” Completely incapable—they’re incapable. They have one gear and you’re asking—they have like fifth gear and you’re asking them to downshift into second gear and they—they don’t—they—they can’t do it.
[22:53] Bill They’re incapable. That’s why the training is necessary to train their brain to be able to do that. And that’s the big hangup. Attorneys get upset like, “My witness doesn’t listen to me.” It’s like they—no, they listen to this. They’re not capable of doing what you want them to do. They—they can’t—they can’t do it. They have to be trained to do it. It’s why we developed a training program for this. Okay. It’s very fr— If you’re an attorney and you’re telling your witness to—to do certain things and they’re not doing it, I mean, that’s very frustrating. There’s a reason for that.
Okay? And it’s all neurocognitive. It’s not a motivational thing. It’s—it’s not that your witness is ignoring you or doesn’t respect what you want. It’s just they’re incapable. Okay? So, you have to understand that to really know what you’re—your dealing with here and what needs to be done. So, here’s our problem with speed. Litigation testimony punishes speed. Okay? Fast answers are very dangerous. And defense council, you know this. When your witness starts answering questions in a rhythm and develop momentum and it’s a runaway train, you can’t object. Very, very bad. Bad things happen. Speed kills. Speed kills.
[24:20] Bill Why? There’s not enough time to properly assess the question. Okay, a lot of cognitive work needs to be done to properly and effectively assess a question. Okay, with speed also emotional reflexes can take over. Okay, that can override rational logical thought. So, speed and emotion can kind of interact there. And with speed, we have a much higher risk of volunteering information, getting off track, opening up a can of worms, or even worse, getting on the yes train and start agreeing quickly and with momentum. Speed kills. So, we have a neurocognitive mismatch of sorts. So, if testimony starts going quickly, okay, that’s going to be a problem and emotions can then, you know, kick in quickly.
Now, if the witness can be trained to go slow and maintain prefrontal cortex rational functioning throughout the whole time, they can be elite and be highly effective. But here’s the problem. It’s culturally underused and not reinforced. See, speed is reinforced. It’s reinforced by your surroundings, by your colleagues, by your friends, by your family. So going into a testimony setting to cut that speed down by 80%. And to develop slow, deliberate, rational thought before replying, it’s not reinforced.
[26:40] Bill And that’s where discomfort sets in for the witness. What they’re doing is uncomfortable because it’s never been reinforced. Hence why the training program is so critical. So, then someone like me or one of my team members can begin to reinforce that type of methodology. It’s never been reinforced. So, what typically happens is you tell your witness to go slow. They start the deposition going slow and the brain says, “You know what? I really don’t like this.” Yeah. Yeah. I don’t like this. I’m going, “This second gear kind of sucks. I’m going back into fifth gear.” And the brain just goes back to what it normally does.
So, like your little lecture series that you give them in your prep sessions—oh yeah, that’ll work for 30 minutes. The brain’s going to fight you the whole way and it’s going to want to go back to what it generally does because what it generally does has been highly reinforced. Going slow and deliberate has never been reinforced. So, we have to figure out this reinforcement loop, right? All right. The witness needs to understand—again this is a retraining cognitive remapping issue—is that going slow and deliberate is a weapon and not a weakness.
[28:09] Bill Because remember at work it’s a weakness. Go to your colleague next to you right now and ask a really important question. If they don’t answer you in a second, you’re—it looks bad. Or do that with your family or your friends. It’s—any delay in a response is seen as a weakness in society. That’s the problem. That’s the problem. Okay. Being slow, being deliberate is a weapon in the deposition setting. The witness brain does not know this. Why? It’s not been reinforced. So, a lot of operating conditioning science going on here. Okay? It’s got to be enforced. That’s a big part of our—big part of our training program.
Now when the witness goes through training, particularly on speed, okay, and we reinforce that and the brain now accepts it, becomes comfortable with it. This is an incredible amount of control that your witness has now attained. And that’s the number one issue with any testimony is that the witness feels they don’t have any control. The examiner is in control, right? It’s not true. The witness can be in full control if they understand where the control is.
[29:50] Bill If they know how to use it—and one the—I think the most important area of control is pace, speed. Okay. It’s a big part of the training program and a lot of good things happen when things slow down. But again, what’s the barrier here? The barrier is—is in society and at work. When things slow down, people think you’re an idiot or people think you’re dumb or people think you’re not paying attention. Socially, you’re not fun if you’re slow and deliberate. Like, nobody wants to hang. You—you’re going to lose all your friends. All right? So, got to train that brain to get very comfortable with that. Requires reinforcement. Okay.
Now, let’s go back to speed. Let’s just stick on speed here for a while because this is—this is really the apex of everything. So, let’s talk about—this is new. This is new. And I’ve had this in the training program, but I’m expanding it in the training program with witnesses. I’m starting to include this in my speeches. I came up with this off the cuff during a corporate rep training that I did recently in Dallas for a large corporation who sent like 35 people in for witness training, group training. And I was talking about the importance of speed, okay? And how from a cognitive standpoint, an emotional standpoint, it solves a lot of problems, right? You go slow and deliberate. Now, here’s another outcome of that. So, let’s talk about the—what I—I call the question answer cycle. Okay. So, let’s break this down. Start the stopwatch. We’ll make some assumptions, right? Okay. The question answer cycle starts with the first word that comes out of the examining attorney’s mouth.
Okay. The start of the question. That’s when the cycle begins. one 100, two 100, three 100. Let’s say the—it’s four or five seconds is how long the question takes. Okay, that’s time period one of the cycle. Time period two is the witness’s pause before the start of their answer. Now, the science shows that at work and socially, this is typically about a half a second, okay? That ain’t going to cut it in testimony, right? Half a second is not going to work. The training needs to be—we train them two to five seconds depending on the sophistication of the question. Okay, but that’s going to be the time period two. T2.
[32:57] Bill So T1 is the length of the question. Okay, this is all temporal. T2 is the witness’s pause. It’s either going to be a half a second or we would like it in that two to 5 second range, which provides for a lot more thinking. Half a second, you’re not doing too much thinking. That’s not very effective. Okay, that’s T2. T3, time period 3 is the length in seconds of the witness’s answer. Okay, so we got length of question, length of pause, and now length of answer. As you know, we never want an answer to go over 5 seconds. Okay, T4, time period 4. And the final part of the cycle is the gap of time between the end of the witness’s answer and the start of the next question. That is the temporal Q&A cycle. It has four time periods. Length of question, length of pause, length of answer, length of pause before the next question. Four time periods.
The witness controls 50% of this. The witness, which is the length of the pause and the length of the answer. All right. Now, I’ve done a little math. Where’d I put my math? Can’t find my math. Where is it? Come on. Do I go on my computer for my math? Let’s see here. All right, hold on. Every— Yeah, hold on with me. I just made some… Okay, so I did my math. Have it in a different file. All right, so let’s assume—let’s make some assumptions. Okay, the witness can pause half a second like they do at work or like they do in society, or they can pause—let’s just average it out 3 seconds.
[35:10] Bill Okay, now some answers are going to be short: yes or no, true or false, agree, disagree, it depends. Period. Period. Period. You know, I hate commas. Some answers will be longer explanations which should always be brief—being concise and precise—say up to five seconds. Okay. Now when you do the math over an hour. Okay. Do the math over an hour. If the witness pauses like they do at work and in society, about half a second, compared to pausing for 3 seconds. Okay. They can eliminate up to about 28% of the planned questions. 28%. That’s a staggering number. Why? Because the pause not only increases cognition, and that’s what it does, but the other thing it does is it’s eating away at the shot clock.
So, if you plan it over an hour, if a witness is responding quickly, the—the questioner can ask 28% more questions within that hour. More questions more—more vulnerability. The witness is reinforced to go slower and say they pause 3 seconds. That number drops by about 28%. It’s massive. That’s massive. Okay. So, you got many benefits from going slowly, but just the number of questions, that’s really important. Not too many people—not too many people think about this. All right.
[37:16] Bill Now, what are the goals of cognitive remapping? Okay. Several things going on here. This is where the training gets really intense with the witnesses. This is why we’re so busy with what—what we do because this is what we’re about to cover here is no easy task. This requires advanced training in psychology. Very important. Okay. Number one, we have to desensitize the witness from fight or flight response patterns, right? Have to desensitize them from emotional threats. The only way to desensitize the human brain to a negative stimuli is what? We’ve covered this. What is it? Repeated exposure.
The witness needs repeated exposure. Whether it be bad facts in the case, reptile edge tactics, you know, psychological warfare, emotional threats—we’ve talked about all that. Aggression, sarcasm, all that stuff. Repeated exposure will desensitize the brain to those tactics. It’s the only way neuropsychologically—it’s the only way the brain becomes desensitized. Repeated exposure. That’s a big part of the training program. Those of you who have worked with me, you certainly will know that because most witnesses’ fight or flight trigger, right? It’s very sensitive. It’s very sensitive. Some witnesses can fly off the handle if you just roll your eyes at them or smirk after an answer, or you ask them a question and they give a legitimate, “Hey, you know, I don’t know,” or, “I don’t remember,” and you go, “You—you don’t know?” Boom. Fight or flight. Like it’s a hair trigger. That’s got to be taken care of.
[39:32] Bill That can be taken care of. That will be taken care of. But you have to follow—you have to follow the systematic desensitization protocol to get there. There’s no—there’s no shortcuts when it comes to neuroscience. Sorry. Okay. Second thing is cognitive reframing. The brain needs to reframe its interpretation of such threats as a trap versus a threat. Because it’s not a threat. It’s a trap. It’s a trap. It’s not a true threat. You give an answer and attorney starts giving you an attitude, rolling their eyes at you, that’s not a true threat. That’s a carefully planned trap. And if the witness brain can interpret it as a trap as opposed to a threat, it will stay in prefrontal cortex functioning and go, “Aha.” You want the witness brand to go, “Aha, yep. Saw that coming a mile away. I know what that means.” Versus the witness brain going, “Oh, they’re mad at me. I’m screwing this up. Oh my god, they rolled their eyes— I look like an idiot.” Then it’s fight or flight. They’re done. Okay.
Cognitive reframing, attentional control, and mental endurance. They have to do this over 45-minute cycles. Okay? Need to build mental endurance. They can’t do this for 15 minutes and then fall off. That’s where the reinforcement comes in. Most witnesses early in training will do this stuff really, really well. They get to like 15, 20 minutes and crash and burn because their brain reverts back to what’s been selected for, what’s been reinforced, which is the work in social, right?
[41:43] Bill So, again, I’ll be working with a witness. First 20 minutes, they’re really, you know, they’re using two, three, sometimes 4 second pauses before they answer and they get to minute 21, it’s boom, boom, boom, boom, boom. The brain’s going to fight the whole time. That’s where you have to stop operating conditioning to get them back on track and to reinforce the slow pace because then over time the brain will be like, “Wow.” You want the brain going, “Wow, you know what? Going slow is actually a really good idea. I don’t look stupid at all. I look very wise. I look smart.” But see, that’s not how that’s currently defined. It’s currently defined as, “Well, I look stupid because I’m not answering quickly like I do at work and like I do at home and like I do with my friends. I look incompetent.”
Witnesses ask me that all the time. “Well, if I—if I don’t answer immediately, don’t I look like an idiot?” No. No, you don’t. You look like an idiot when you start answering questions quickly and start agreeing to things that really aren’t true. If you’d like to look like an idiot, go fast. We’ll get you there. Not the point. Look, training the witness how to learn how to detect fatigue. Now, I would strongly argue witnesses aren’t very good at this. We can train them to do it, but it’s really—I think this is an attorney. You attorneys keep a very close eye on your witness. Look for signs of inattention, lack of concentration. Watch for the speed to ramp up. That tells you your witness is getting tired. Okay. Got to be watching that like a hawk.
[43:35] Bill All right. More training: message discipline and verbal restraint. We don’t want our witnesses getting into teaching and lecture mode like I am today. It’s not going to do you any favors. Trying to win the deposition, overexplaining things, volunteering of information. They’ve got to be conditioned to focus on precision. Razor sharp precision. This is surgical. Answer should be surgical. Highly effective witness testimony answers are surgical. Not all over the place. Not in teaching and lecturing mode like they do at work. Or like to do socially.
Then finally, self emotional regulation. Steve Wood does a lot of this with the witnesses. So do I. We all do. But Steve is really good at this. Teaching your witness how to recognize signs of anxiety. Okay? How to breathe appropriately like professional athletes do before big free throws or that putt for the win. Right? A lot of sports psychology techniques that we use with witnesses. A lot of sports psychology techniques. It’s performance-based. It’s the same. It’s the same science, okay? Teaching the witness how to do that so they can regulate themselves, keep themselves in prefrontal cortex functioning and not slip in the fight or flight.
[45:37] Bill Now, here’s the problem with fight or flight. I get this question from witness—uh, not witnesses, from attorneys all the time. “Well, if my witness goes fight or flight, like what do I do to get him out of it?” I’m like, well, see, that’s the problem. Fight or flight by definition is a neurochemical response. Cortisol, adrenaline—this stuff stays in your system for hours. That’s why if your witness loses their mind and you take a break and you try to get them back to good, it—it generally doesn’t work. Okay? You have to prevent this. You have to prevent this.
How? Desensitization. Have them lose their mind during the training because then we can reinforce the proper response and start to extinguish fight or flight. Once they lose it in the real testimony, very difficult, if not impossible to get back. Why? Because you got all these chemical—you got these chemicals. Your hypothalamus is pumping out cortisol. Your adrenal glands are pumping out adrenaline because you’re getting ready to fight or you’re getting ready to run. Now, if you come face to face with a bear, a burglar in your house, okay, that—that—that—that’s really good to have that because it shuts down logical thinking. It goes into survival mode. Not good during testimony, folks. Not good during testimony. Plaintiff attorneys are very, very good at triggering fight or flight responses. Very, very good at it. However, the brain can be bulletproof to such tactics with the right training, which is going to be systematic desensitization.
[47:46] Bill All right, let’s talk about training phases. Hey, we’re almost done. This is good. I want to give you an overview of this because again, I—I do a lot of public speaking and again some of the questions I get are the, “Well, I—I tell my witness to do all this stuff.” I’m like, I know you do. You don’t train them. You—you tell them. You tell them to stay calm. That’s useless. It’s not going to work. You tell them to slow down. It doesn’t work. And they tell, “Yeah, I’ll slow down.” Yeah. Incapable. Okay. Neurocognitive remapping. We have to remap the brain’s wiring to handle the litigation environment because the litigation environment is nothing like the work and the social environment.
All right, training phases. Number one—now I’m—I’m only going to kind of cover this at a high level because again it’s just—it’s too much. But the things that we do, the things that I do, see the things that Dr. Wood does and the rest of our phenomenal team. Three things that we do immediately in the first hour of witness training. Number one, we have to assess the profile. There’s three profiles: cognitive profile, emotional profile, communication profile. Everybody’s got a different profile. We need to see how—so cognitive profiling: How does this person process information? Lightning fast, right?
[49:31] Bill Communication profile: How do they communicate? Highly efficient. They’re finishing your sentence for you. What’s their communication speed like? What’s the baseline as far as how talkative they are? Are they long-winded? Are they short to the point? Everybody’s different. And then finally, the emotional profile. Some of these witnesses, they come in hot or they have very high trait anxiety or trait anger, meaning they’re kind of hardwired to be that way. Some people come in with state anxiety. That makes sense. You should be having some anxiety when meeting with your attorney. Anything legal, your heart rate should go up by 20 beats a minute. Okay, that’s state anxiety. Or they’re angry about the case. That’s state anger. But do they have state or trait? Meaning, are they responding to the lawsuit with anxiety or anger, or are they naturally wired that way?
Got to figure that out. Okay, that’s the assessment process. Very, very important. Most attorneys skip it because they don’t know what to do because you’re an attorney. That’s—I—I don’t—I get it. But that’s what we do for you. So, you know what you’re working with. And then based on that assessment, the training model will be tweaked to meet that witness’s needs. That’s the key here. We have our training system, but the training system can be tweaked for each witness. “Oh, they’re foreign born and there’s deep cultural issues, kind of a cultural issue going on. Not just language barrier, but cultural.” Okay, got a model for that. Okay, assessment is really, really important.
[51:40] Bill Neurocognitive remapping, right? So, the key here—it’s all op—we—we wrote a paper on this, Dr. Wood and I—it’s all operant conditioning. You have to simulate. So, after all the educational stuff that we do with them—like all the brain stuff, I—I teach all the witnesses this now, I do it in different ways and I’ll explain it to a surgeon differently than a truck driver. Okay? But we—we explain this is a big part of the educational foundation of—they’ve got to know how their own brain works at work and society and how that’s going to be a detriment during the testimony. You’ve got to educate them on that, so they go, “Oh, wow. I didn’t know that.” Trust me, it gets their attention.
Okay. Then in the second phase of training, you’ve got to simulate what they’re going to go through. Whether that be deposition, mock deposition questioning, or trial testimony, direct cross, adverse rehab, right? We got to simulate the process. And then as they start going, we have to use operant conditioning. We have to reinforce or we have to punish based on performance. We reinforce the positive things to make those reactions stronger. Right? So, if they’re pausing really well, they’re being very precise and surgical at the answers, you stop and you go, “Exactly. That’s exactly what I need.” And here’s why. Brain gets that reinforcement. It keeps doing it.
[53:20] Bill They start getting faster. They start blah blah blah blah blah. They won’t shut up. Okay, time out. What are you doing? Punishment comes by the form of constructive criticism. “You’re going too fast. We just talked about this. Speed limit’s 20. You’re going 85. You were just a—asked a very straightforward question to explain something and your explanation was 52 seconds. That’s not surgical and precise. Let’s back it up. Do it again.” They screw it up the second time. “Nope. Time out. Nope. Did it again.” Now look at my—I’m like the football coach because like I coach football and basketball. I tell the player, I’m like, “I will sit here all day until you run this play perfectly. Like, let’s go. Do it again. Do it again.”
Now I’d make the players do push-ups. Talk about punishment and operant conditioning. I’m not going to make—I don’t make the witnesses do push-ups until they puke. I’d like to sometimes, but I don’t. I don’t. But I do not let them proceed until the error has been fixed. I don’t care if it takes 17 times. And then once they get it, we go, “Aha, now we’re back on the positive reinforcement of operant conditioning.” Positive reinforce—brain keeps doing that. Okay, we have to reinforce positive behaviors. We have to punish negative behaviors. Operant conditioning, BF Skinner 101. A lot of science behind that. It works. Okay. And this needs to be done at—in the most simulated way possible.
[55:08] Bill So now some of you attorneys don’t mind cross-examining your own witness and you have a good relationship with them, and you tell them beforehand, “Hey, like, don’t hate me for the next couple hours, but I’m going to be rough on you.” Others don’t like that. Oh, you bring in a colleague to do it. But you absolutely must simulate the stimulus in order to train the witness brain to deal with that stimulus in the real setting. Absolutely must do it. You can’t just kind of like informally go over Q&A. “Well, if they ask you this, what would you say?” No, because that—hey, that ain’t what’s going to happen. That ain’t what’s going to happen. That brain will go fly—fight or flight immediately in the real dep.
You got to put them under pressure, repeated pressure. And I’ve said this—I did a whole podcast on this a few weeks ago. The only way the witness excels is through failure—cognitively, emotionally, behaviorally. They’ve got to fail because that’s how they’re going to grow. Find the weak link. And it’s different for every witness. Sometimes it’s emotional, sometimes it’s cognitive, sometimes it’s behavioral, sometimes it’s a combination. Find the weak link, expose it, rinse and repeat to get their brain to go through it. It’s the only—it’s the only way.
[56:52] Bill Now, I never—I never took piano lessons because I grew up dirt poor. I—I don’t think I saw a piano until I was 30 years old. By seeing the movies and I hear the stories of back in the day. I guess you probably can’t do this anymore. It would be culturally frowned upon—is that the student, typically a younger student, would be at the piano and the instructor, the instructor would be standing there with a ruler next to them. And when the student got a note wrong, what would the instructor do? They’d whack them on the hand with a—with a goddamn ruler. Right. Boy, that—that’s some—that’s operant conditioning 101.
Now, again, I’m not—we don’t whack your witnesses with the ruler. Again, sometimes I’d like to. We don’t do that, but providing that—and by the way, by the way, let’s—let’s go back to this piano thing, right? When you get whacked with that ruler. When does the instruct—when—when does the instructor whack you with the ruler? 10 minutes after you’ve made the mistake? Oh, no, no, no. Immediately. Key principle in operant conditioning. The time lapse of the reinforcement is critical, and you want that short. Deal with stakes immediately. Do not wait.
[58:21] Bill All right, last page. We’re going to wrap this up. I promise. I told you this is going to be long. I told you this was going to be long. But this—what we do—is complicated. What we do is complicated. I had a—I had this potential client call me. No, I’m not going to tell you who it is. And they’re very interested in using CSI, Courtroom Sciences, for this exact program we’re talking about. And she’s asked me all these questions. She’s like, “Yeah, well, we—we’ve been using this other group for a couple years, but I’m kind of looking into alternatives.” I said, “Okay.” Okay. I go, “Well, what do they do?” And she goes, “Well, they’re actually attorneys.”
Okay. My response was like, “Well, you already have an attorney, right?” Yeah. “Then why would you hire more attorneys to prep your witnesses?” “Well, because they say they—that’s what they do.” I go, “Oh, oh, okay. Okay. I’ll just let you all do the math on that one. If you had a roof leak, would you call a plumber? Think about that. Both involve water, right? Water on your floor, your walls. But if you had a roof leak, would you call a roofer or a plumber?” I’m just going to let that one sink in. Just kind of leave that there for everybody. All right.
[1:00:02] Bill Okay. Let’s wrap this up. So, what are the outcomes of such an approach? Okay. So, we’re neurocognitively remapping, which gives the witnesses multiple benefits here. Number one, and most importantly, control of the process. Undervalued. Having the witness—having a sense of control—massive predictor of success. Okay. Number two, composure. How do you get composure? Desensitization. Composure. If you don’t have desensitization, again, that amygdala and hippocampus is going to be in a hair trigger. Okay. And then finally, clarity under pressure. Prefrontal cortex functioning at all times. Okay.
What do we get out of this? We get surgically precise answers. We get accurate answers. We avoid damaging admissions that they should have never said yes to in the first place. We decrease witness error rate. These are all things that are killing you, right? You get that deposition transcript of the video and you’re like, “Oh god, they said yes to this, and they said yes to that.” And the answer wasn’t yes. That’s what you want to avoid and that’s what we’re trying to do here. Any type of reptilian or edge tactics, you want to avoid those. This program is designed to do that.
[1:02:03] Bill And so kind of the final message here is: what are we—what are we doing? Okay, so neurocognitive remapping is not witness coaching. I hate that term. “I need a witness coach.” I’m not a witness coach. Jesus Christ. It’s neurocognitive remapping. Okay. We are rewiring the brain using scientifically proven tools from neuropsychology to get the witness to process information more effectively for the litigation environment. We block the wiring from the work and social environments and that is what makes witnesses effective. It’s not easy. It’s not easy because every w— Yeah. Every witness is built different. It’s hard.
We’ve talked about this many times on the—on podcast. A lot of witnesses come into these things emotional, right? And you’re kind of behind the eightball, but there are ways to fix this. Um, I think every single witness does have opportunities and ability to, um, improve. Everybody’s going to have a different ceiling. You’re not—you’re not going to take everyone from an F to an A. I mean, it’s not going to happen. But sometimes you’re going from an F to a B or maybe their ceilings at a C. It just really depends who they are, how they’re wired.
[1:03:58] Bill And so, I hope you enjoyed that summary on witness training and kind of what’s really going on. So, you’re wondering—I just had a email I just sent out. He’s an attorney. It—I told him what we do. He’s like, “Well, I gotta run this by— God, this is expensive.” I’m like, “Yeah, you’re damn right it’s expensive.” He’s like, “Well, I gotta—like, what do I tell my—like, my—my client’s expecting me to prep these witnesses? I’m telling them to bring in you. Like, they’re not going to understand. I need to know what you do.”
So, I pretty much this whole podcast, I like typed out my outline and sent it to them like, “Here’s—here’s what we’re going to do with your witness. You show this to your client, so they understand exactly what we’re doing here. Okay? You guys handle all that strategy and content because that’s where your expertise is and that’s what you guys are great at. You work really hard at it. We’ll handle all this foundational psychology stuff and that is what’s going to get your witness to the next level and that’s what’s going to lead to effective testimony at the end of the day.” All right, thank you for participating in this edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky. We’ll see you next time.
Be confident in achieving superior litigation outcomes. CSI has the expertise, track record, and capabilities to help you win.
