Episode #279 – Stop Losing to Start Winning

In this episode of the Litigation Psychology Podcast, Bill Kanasky, Jr., Ph.D. talks about common missteps in litigation and explains why defense teams must “stop losing before they can start winning.” He argues that many losses stem not from case facts but from preventable mistakes, as the plaintiff’s bar continues to be proactive while the defense often remains reactive.

Bill highlights three key areas for improvement: early and accurate case assessment via frequent jury research, early witness evaluation to address psychological and emotional issues, and early deposition preparation using neurocognitive remapping and systematic desensitization to ensure witnesses are protected from cognitive autopilot issues and plaintiff attacks. By eliminating these common errors, defense teams can significantly reduce the risk in their cases and position themselves for more consistent wins.

Full Episode Transcript

[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky here rocking and rolling. We are back. Football season is back. Get your lives back together. Dog days of summer over. Kids back in school. Thank God. But I tell you what, week one was not pretty in this house for my 17-year-old. Wow. That 5:55, 6 a.m. wake up was not pretty. I had to wake up. I mean, I’m typically always up at that time anyway. But yeah, I had to lay down the law on week one and that was not pretty. The glares I was getting. Wow. I you know, time to get up. I know. I stroll back in at 6:10. Hey buddy, it’s time to… I know. Well, then get your [__] out of bed. Like, what are we doing here? I’m tired. Well, maybe you shouldn’t have… Yeah, maybe you shouldn’t have gone to bed at 11, 11:30. Okay, this is training for the real world. Once you get older, you won’t be… Yeah, not, not happening.

[01:43] Bill So, yeah, harsh reality here, uh, as school is restarting in the Kanasky house. Couple personal updates. You may hear banging on my house. Getting the exterior of my house, uh, redone. So, a hurricane won’t blow it away. Went with the Hardie board. I really like it. But man, that said, that when these guys are pounding and using the nail guns outside… Wow. Um, it’s kind of screwing up a couple witness preps. There’s a personal update. Uh, number two, uh, yeah, I’ll show you if you’re watching on YouTube. Yeah, took eight stitches in my hand opening up a crate with the crowbar. It’s finishing up my man cave. Had one more machine. I had, I ready for… I got the leg extension, leg curl combo. Final piece of equipment, but they, they sent it in this crate that was sealed like the Ark of the Covenant. And so, I’m in there with the crowbar trying to open this thing. And, uh, there’s little metal framing around there. And yeah, I slipped and then it looked like the OJ Simpson crime scene in my driveway, but I was calm. Stopped the bleeding. Walked into my son’s room. He was a, he was a trooper. He doesn’t like blood either. I’m like, “Dude, I gotta just drop everything. We’re going to the ER.” I go, “Don’t look at me. Don’t look at the blood.” Because he like, him, my wife, they see blood like they pass out. I, I worked at a hospital for many years. I’ve seen, I’ve seen it all. So that’s fine.

[03:31] Bill So got, uh, eight stitches, got them taken out, working on that. Uh, the fall is always busy, busy. It is busy, busy, busy at Courtroom Sciences. But here’s really good news. Massively good news. Number one, we have the best team ever at Courtroom Sciences. Best consulting team, best support team ever, ever. And it’s making a huge difference. Number two, clients. Now, we, I still get the crazy phone calls every week, but I get to a majority of the phone calls early in cases, sometimes even pre-suit. They want to get on top of things. I’ve been screaming that from the top of the mountain for how many years now? It’s working. Clients are reporting getting a lot of cases settled earlier for more reasonable amounts. They’ve done their focus group research. They go into mediation armed. Trained witness deps go good. Okay, that’s how you do it. Early intervention.

[04:38] Bill But every week, a couple of knuckleheads call and their trial’s in the next 10 to 30 days. Yeah, not a whole lot we can do for you there. Blindfold and a cigarette, perhaps. Now those cases, a lot of those cases end up settling, but man, the, the money lost on those cases. Everybody’s worried about nuclear verdicts. Nuclear ver… No, it’s these nuclear settlements. Remember, nuclear verdicts are statistically rare. They’re an anomaly. Nuclear settlements. Oh, that’s where a ton of money is being lost and nobody really talks about it. It doesn’t, it’s not quite as sexy.

[05:28] Bill Right now, um, I was, uh, I’m a… I love this podcast. Um, hopefully you guys love it because our YouTube, uh, subscriptions is almost at 14,000. That’s just YouTube. It’s harder to track the stuff on Spotify and Apple and all that stuff, but man, it’s rocking and rolling. So, we’re doing something right. But I also like to listen to podcasts and, uh, we’re, we’re, we’re getting, you know, college football going, NFL football going. And, uh, as you all know, I’m a proud graduate of the University of North Carolina at Chapel Hill. And they come out with a couple podcasts every week, um, uh, particularly talking about, you know, whatever sports are going on. And they were talking about, uh, Bill Belichick, the new coach for UNC, and, uh, one of the, the phrases, um, that a former player heard him lose… uh, use, um, while talking to players long ago. And the phrase, and I think it applies to litigation. Here’s the phrase because remember Bill Belichick has coached, you know, everybody knows about the Patriots and the Super Bowls and stuff like that, but he coached for the Browns and when he took over the Patriots, it wasn’t a really good job. Um, he knows how to fix programs and I’m, I’m desperately hoping as a season ticket holder, he fixes the University of North Carolina’s football program. Um, that being said, here was the phrase from coach Bill Belichick from many, many years ago: To start winning, you must stop losing first.

[07:13] Bill Let me say that again. To start winning, you have to stop losing first. And what coach Belichick meant by that was self-inflicted harm. And you’ve seen this right after any, any sporting event—college, pro, high school, whatever—at the end, right? The, the commentators, they’re doing their analysis or it’s Monday morning quarterbacking. You’re going to hear one of the two things, right? This team played really, really good. They executed. They won. They obviously put in the hard work. That’s one of the things that you commonly hear. But here’s the other thing you commonly hear is this team beat themselves. They beat themselves. They fumbled. They threw a pick six. They had 10 penalties for over a hundred yards. And the clock management was terrible. They beat themselves.

[08:25] Bill And I see this a lot in, on, on these defense cases. I see a lot of this on the defense cases. It’s preventable. Largely preventable. To start winning, you got to stop losing. Number one, another thing Belichick is famous for. Famous for. So is Nick Saban. By the way, I am addicted to Nick Saban YouTube videos. Oh my god, what a absolute leader and, and genious. But him and Belichick had, you know, a couple things in common, but one of them is attention to detail. Details matter. Details matter. It’s the little things, okay? It’s your culture. It’s your philosophy. And the attention to detail, how you do things is really important. And what the plaintiffs’ bar has done very nicely is taken advantage of kind of the traditional insurance defense system which is notoriously and historically reactive in nature. You get a proactive system going against a reactive system. Proactive is gonna… they’re going to win a lot. Okay? They’re going to win a lot.

[10:06] Bill And so to start winning, you need to stop losing first. And what are some of the kind of common missteps here, right? A lot of this I’m involved in. Some of it not so much. Right? Uh, in no particular order, um, number one is accurate case assessment. Can’t tell you how many times a small case or a BS case turns into a big case because it was misread, right? What are the ways to… Okay, so the traditional reactive way is to look for historical research. Think about other cases and then you’re a defense attorney and you’re writing your case assessment report or pre-trial report and you tell the client, “Yeah, this is what the case is all about. This is the likely percentage of winning and this is the likely damages range.” And where are those figures coming from? These are hunches. These are gut feelings. No science there. Okay.

[11:26] Bill The much better way to do it is to test your case and test it more than once as discovery grows. Test it early, test it often. It’s exactly what the plaintiff attorneys do and they thrive off of this. No reason why the defense can’t do the same thing. Doing so much of this now. And boy is it helping because think about it, you want to get the case on the right trajectory. You want to be on the right path and you don’t want two years to go by, right? Because again, imagine… Yeah. Imagine the days I tell my kids, right? It’s like we used to drive from Orlando to Chicago or Orlando to Pennsylvania where I was born. And we used a map. My kids looking at me. “What? Huh? What’s a map?” Remember the AAA? They send you the TripTik, right? There was no GPS. None.

[12:21] Bill And here’s the problem with the map, which happened. Okay, this is a true story. We were, my wife and I, uh, and my son who was just born Billy who’s now 24. So, this is like 23 years ago. I am interviewing for residency slash internship for my PhD and we’re dirt poor and I couldn’t afford to fly. And so, I said, “Okay, well me, my, my wife, and my, my one-year-old, put him in the car seat. We’re gonna drive around the country going to these internship residency interviews and we’re gonna rent cheap hotels.” And boy, I’ve come a long way. But boy, that was a grind. And I remember my wife said, “Hey, why don’t you… I’ll drive. You get some sleep.” Baby was sleeping. Billy was sleeping. She goes, “You…” I go, “Are you sure?” She goes, “Yeah.”

[13:31] Bill Remember we’re on I-80 and we’re going through Ohio and we’re driving towards Chicago. So, I crank back, get a pillow, a blanket, and I’m out cold. I wake up about two hours later. She is badly off course. We have a map. We don’t have GPS. I wake up and I’m looking at signs and I’m like… right, remember the movie Dumb and Dumber when they’re driving and it says Aspen this way and Lincoln, Nebraska, right? And they’re not paying attention. That’s what she did. We went, we went Dumb and Dumber. No offense, honey. And so, we got like 90 minutes off course. We’re supposed to be on I-80 going west and now we’re going south for… So, it’s like to get back on course. These are costly. Costly because it costs more gas, more food, more time to try to get back on the right course. GPS, god. I mean you, you’re off by six feet. It’s starting to beep at you like, “No, no, no, reroute, reroute, reroute.” Right?

[14:45] Bill That’s what I’m talking about here with, um, early case assessment. You want to be on the right road. You want to be on the right path. And the only way to get there is to do research. Now, all the objections to research are now gone. “We can’t afford it.” Nope. We’ve made it highly affordable. “We need discovery to be done before.” No, you don’t. You’ve got plenty to test right now. “Our experts haven’t been to the… We don’t have experts.” I don’t care. Jurors don’t pay attention to most of that anyway. Okay. You got plenty to test early and then as your discovery starts to develop, you can then retest and add to the formula and see what changes.

[15:36] Bill Couple great things here. Number one, you’re going to get accurate forecasting because you got jurors telling you what they think, not your gut telling you, okay? Because that’s not accurate. Number two, you start to develop a database. Now, you got your pro-plaintiff high damages profile right there for you because you’ve developed a database. And now as you approach say mediation, you’ve got some ammo. You’re making good decisions, right? Remember Kenny Rogers? Got to know when to hold them, know when to fold them, know when to walk away, know when to run. Okay, that type of informed decision making as you approach mediation is exactly where you want to be. Better decisions looks good with the mediator and then as a group, client, attorney, you know you’re making the right choices because you’re, you’re taking a data-driven approach. Otherwise, you’re driving down I-80 at night with kind of no lights on, right?

[17:00] Bill Okay. To start winning, you got to stop losing first. Now remember, plaintiffs’ bar, hats off to them. That’s what they do. They do testing early because they, they can’t afford… Listen, they’re fronting all this money and time. They can’t afford to be on the wrong track. They cannot afford it. So, their business model, they kind of have to do things that way. By the way, I switched protein shakes. This is very important. You should be getting one gram of protein per, uh, pound of body weight. And I was on Gold Standard whey protein for god, 20 years, and it started bothering my stomach for whatever reason. Um, I switched over to Isopure. It’s like the most purest protein powder out there. It’s fantastic. It’s also really expensive, but you get what you pay for in this regard. Highly recommended. Slam two of those a day along with, you know, good high protein meals, you will be set. Your body metabolism will like that.

[18:07] Bill I’m all about health, folks. All about health. Saw a LinkedIn post, Holly Howantiz, good friend, been on the podcast a couple times, and she’s posting about, hey, you can’t run yourself into the ground pre-trial and during trial because it’s unhealthy. You still got to run. You still got to lift. You got to eat right. You got sleep, hygiene because you’ll be a better attorney. You’ll be more energized. All those things are advantages, right? But we all struggle to do it. End up burning yourself into the ground. Don’t need that. Okay. Back to start winning. You got to stop losing.

[18:52] Bill Second thing and where, where you think I’m going to go here, I’m not. You think I’m going to say get those witnesses trained for deposition, which is actually the third thing I’m going to tell you. The second thing I’m going to tell you is witness related, but it’s different. Meet with your witnesses as soon as possible. Not to prepare for dep, but to do that kind of armchair psychological assessment. How are they doing mentally, emotionally, physically? They having nightmares? Are they frustrated? Are they annoyed? Are they depressed? Do they feel guilty? Do they hate the world? Are they pointing fingers? Are they resentful? Oftentimes skipped or you meet with them and it’s very superficial. You’re not asking the right questions. If you want witnesses to perform, the number one thing, we’ve talked about this before: they’ve got to trust you, defense counsel, they’ve got to trust you. And trusting… I… there’s a massive assumption here that well, you know, I’m, I’m the defense attorney representing the corporation. Of course they’re going to trust me. Uh, no. No. Trust needs to be earned and meeting with those witnesses early and then keeping in touch is really important because these cases, again, this does not get enough respect. These cases are a huge psychological burden for the witnesses.

[20:51] Bill Then we have a lot of cognitive errors happening. Witnesses are catastrophizing. They’re connecting dots that they shouldn’t. They’re getting more and more stressed and anxious. They can’t sleep. They’re worried about losing their job. All that’s going to screw up your witness. And then week after week after week and these things drag on, right? So, assessing the witness and starting to form trust. Step number two, early early early early. And you may find something that needs to be addressed usually emotionally, and you can start dealing with it then versus letting a year go by and then it’s like a pressure cooker, right? What happens to a pressure cooker when it sits too long? Boom. Then the wheels come off. Gets ugly.

[21:50] Bill Okay. And then third is the dep. Depositions are everything. A lot of these cases, your fate’s really determined by the deposition performance. Really, really important. And if your witnesses bomb because they have not been trained appropriately, which is usually the case… they’re usually prepared on substance strategy, but then they go into deposition and they psychologically break down. Remember the brain, the brain’s hardwired to play checkers. Deposition’s chess. A chessboard and a checkerboard are identical, but the rules and the pieces are extraordinarily different and getting, you know, rewiring that brain to process information differently. Number one, and then simultaneously systematic desensitization to keep them out of fight, flight, or freeze responses. This is no easy task. That’s a 9 to 12 hour job for us, my team. That’s the sweet spot. Some more, a couple less, but that’s the sweet spot. 9 to 12 hours of training to rewire that brain so they can process information differently and more effectively. Meaning playing chess, not checkers. And then developing the emotional wiring to stay out of fight, flight, or freeze responses. Okay?

[23:42] Bill So, if the only thing you did were those three things very aggressively, you’re in the red zone. You’re in the red zone. You’re in really good sh… really good shape. You don’t… you do one of those three or none of… I mean typically it’s none in my experience with the phone calls I get. God. To start winning you have to stop losing first. Self-inflicted harm. It’s completely unnecessary. It really, really is. It’s kind of the lesson for today. If you want to start winning, you got to stop losing first. This goes across all areas of life, people. You’re a business owner. You know, you have maybe individual financials or, or health goals. This formula works across life. You got to stop losing first. That’s step number one. Then you can start winning.

[24:55] Bill All right. A lot of things that can be done early in these cases. Now, you know, getting with your experts early, right? Things like there’s all kinds of things you can do as an attorney, all that stuff, right? But those three I mentioned, I, I think have a profound impact on outcome. Profound. Often skipped. But again, the good news, many of… clients, both insurance clients and corporate clients, many clients have figured this out. They agree with the paradigm shift to proactive versus reactive. It’s a big deal. It’s a big, big deal.

[25:39] Bill Now, um, what I want to end with here, uh, because God, there’s been a lot of trials this year, lot of trials and trials are risky. Let’s define risk. I wrote this down: Risk is what’s left after you’ve thought of everything. That’s what risk is. Risk is what’s left after you’ve thought of everything. And we all know you can be perfect and lose at trial. Unpredictable events can affect outcomes. We had a trial recently where the judge flaked. Judge flaked. Started letting things in we did not anticipate. We’re like, whoa, whoa, whoa, whoa. And she changed her mind and let it in. It’s like, whoa. Who’s going to prepare for that, right? There’s one of those unknown factors. Your judge, some of them are more predictable than others. It’s a risk. Your expert witness—maybe they’re having a bad day and they bomb. Well, you only have so much control of that. Jury pool—because of whatever, you know, a tough group shows up that day. You have all your other bases covered, you know, you end up with bad jurors by random chance. It happens. It happens, right?

[27:41] Bill So, keep in mind that as you’re thinking about trial, right, there’s another… it’s so risky. It’s so, so risky and you want good outcomes, right? But remember, you can’t control everything. Can’t control everything. Another quote—I forget who said this, it’s a quote I’ve heard for a long time: You plan and God laughs. I’m more of a universe guy. Uh, but yeah, you plan and the universe just kind of sparks, “Oh, really? Oh, you think that? Oh, you think you’re that clever, huh? Here’s a curveball.” That’s what happens. And that’s why I think one of the best, again, I’m, I’m, I’m… god, see, I’m pushing 25 years. Geez, next month will be 24 years doing this. Um, I think one of the biggest strengths of any attorney, plaintiff or defense, is being able to adjust in the moment when the unexpected happens. When the judge overrules something or lets something in or your expert bombs or whatever. Um, you really can’t teach that, right? Those are instincts, comes with a lot of experience. That’s tough.

[29:17] Bill But I can tell you this from this year and all the trials, boy, a lot of trials. There’s going to be curveballs. There’s going to be curveballs. Um, that’s really, really important. So, oh yeah, one more thing. One more thing. There’s a very thin line between being bold and reckless. It’s like a one millimeter thick line. Being bold versus being reckless. Back to sports, right? You see some crazy play call, some trick play. If it works, you’re the hero as the coach. Doesn’t work, you’re an idiot, right? Which goes back to testing. Um, you may have a bold strategy. Maybe you want to attack the plaintiff because that’s a case that you’re thinking, “Hey, this plaintiff has weaknesses. We can attack this person’s character or background. They’re asking for all this money, but you know, look at how they live their life.” Things like that. That’s a… that’s a pretty bold move. Pretty bold move, Cotton. What movie? Come on, guys. What movie? “It’s a pretty bold move, Cotton. We’ll see how it plays out.” Dodgeball. Pretty bold move.

[30:46] Bill You’re going to make bold moves. I would really test those. That’s why so many of the… I mean, from a research methodology standpoint, the test-retest model is fantastic. You test it twice. You pick a conservative strategy on day one. You repeat it a couple days later. You go bold and you see what you can get away with. And if it blows up in your face, congratulations. You just saved yourself a lot of headaches at trial because now you know. If you get away with it, jurors agree with you. Aha. Now you know, you decrease risk, decreasing uncertainty. How do you decrease risk and uncertainty? Testing. Testing. You skip all that. And again, you know, you’re, you’re, you’re driving down the road in the dark with no, no headlights.

[31:46] Bill Okay. All right. Well, the today’s podcast is kind of like a lecture, right? No rant. I’m not gonna rant today. Not going to rant. I’ll save that. I’ll save that for when Dr. Wood’s on. I’ll save a good, a good rant. I have a couple stored up. I just don’t feel like ranting today. Many of you are not going to be happy about that because you like my rants. But today, today is just a non-rant today. I’m in a really good mood. My house is being fixed. My hand is healing. Guys working on my house right now. This is, this is… this is great.

[32:32] Bill But I think the real reason I’m happy is that it’s all coming together. Clients are figuring it out. Don’t get me started on the voir dire and opening statement work we’ve been doing since I delivered that four-part voir dire series podcast and then a couple of the ones I did on opening. Wow, everybody’s been calling and we’re doing a lot of great work there. A lot of great work because what, what are we doing? We’re eliminating or decreasing… not eliminating, decreasing uncertainty. Better voir dire scripts, better opening statements, finding mistakes before they happen, right? Because remember a lot of the mistakes or weaknesses or vulnerabilities you have, you are unaware of. That’s the whole… it’s the whole point. You’re unaware of it. Why? Confirmation bias. Number one offender right there. You can’t see. It’s really difficult to see your own mistakes or your own vulnerabilities. Having other eyes on it is really, really wise. Right.

[33:58] Bill So again, wrap this up. Continue on this pace. I see so many changes. They’re all positive. Continue to be proactive, not reactive. Continue to do the homework to find your true vulnerabilities, the ones that you can’t see. Okay, everybody’s doing a great job and football season is back. I have to get… I have to kind of have to give you… We’re going to have to get into like NFL playoff… I have to start doing my forecasting. We’ve been doing a terrible job of that. We have some college football playoff picks. Those will, those will come. Those will come. I only want to get a couple weeks under my belt before I start making picks, but hopefully Belichick can get the Tar Heels back on track. All right, thanks everybody for participating in this edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. We’ll see you next time.