Episode #23 – Preparing trucking witnesses for deposition

This video edition of The Litigation Psychology Podcast features CSI Litigation Consultant Dr. Alyssa Parker discussing her experiences with preparing witnesses for deposition in trucking litigation. Dr. Parker also talks about the process of preparing healthcare workers for deposition, as both of these personas have specific needs and challenges that must be overcome before testimony.

Full Episode Transcript

[0:04] Bill Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky, with me is my colleague Dr. Alyssa Parker. Hi Alyssa.

[0:13] Alyssa Hi Bill.

[0:15] Bill You uh, well the one the first criticism I have for you is you really dressed up way too nice for this podcast.

[0:21] Alyssa I’m actually wearing yoga pants underneath this top

[0:27] Bill Okay well at least, at least you’re honest. You’re probably not the only one with all these video depositions just wearing from the waist up formally. I just decided to blow it off since I’m sitting on my, my back porch here in Florida. Well, thank you so much for being on the podcast.

You know, the reason why I wanted to bring you on—you know, you’ve been with Courtroom Sciences for four years now and you’ve had the unique experience of being thrown into the deep end, particularly in some of the trucking litigation that I have assigned to you. And I’d like to talk a lot about that because, as you know, with the whole COVID-19 pandemic, you’re hearing a lot of positivity about the trucking industry right now, which I can never remember in my life hearing more positivity than that I’m hearing now. We’ll talk about that in a sec.

But what I want to start off with you is, you know, being a trial litigation consultant and early on in your career being pushed into these really challenging and tough trucking cases—what were some of the main challenges you see as you’ve been involved with these cases? I’m sure that one of them, if not the top one of them, has to be the difficulty in preparing truck drivers for testimony.

[1:42] Alyssa Yeah, that’s actually exactly what I was going to say. First and foremost, with use of plaintiff reptile tactics, truck drivers are notorious for falling for these tactics. Second, one thing that’s not thought of very often is that a lot of these truck drivers are very resistant to the process itself.

[2:05] Bill No one talks about that. No one wants to talk about that. Everybody assumes well, they our truck drivers, so they’re gonna trust the legal team. Here’s the best one—they’re actually gonna be honest with us. Oh, maybe not always, right?

[2:14] Alyssa Well, there’s a lot of distrust for the attorneys and the process in general. And then a huge factor is that oftentimes companies are stuck between a rock and a hard place where they feel obligated to get rid or dismiss the truck driver for whatever reason following the accident in question. So a lot of these truck drivers no longer work for the company and feel like their lives have been worsened consequently as well. So that’s a huge issue.

[2:46] Bill Listen, I—it’s my 16th year of doing this. I have prepped thousands of witnesses at this point, both for deposition and trial. And I don’t care what industry it is: if you have a former employee, either they were terminated and they have an axe to grind with a chip on their shoulder, or they just left, they quit because they weren’t satisfied with their work.  I have found those to be the most difficult witnesses to work with again, across industries, because of the level of emotion involved, right? It’s like going to hang out with your ex-boyfriend and it’s like, well no, this is maybe not a good idea, but because litigation forces that. Tell us a little bit about some of the experiences you’ve had with those types of drivers and maybe some of the negative emotion that can be involved that can really impede effective testimony.

[3:35] Alyssa Right. I see this quite frequently, but one particular case that stands out to me was with a truck driver who was not at fault for the accident, but there was still a lawsuit and he had been terminated for other reasons. He had not shown up to multiple meetings with the attorneys. Finally did show up for a witness training that we had scheduled and almost immediately looked directly to me and said, “I don’t understand what the point of this is, no one’s gonna believe me anyways.” And ended up having a very long discussion about kind of his distress at the company, his distress with the attorneys involved, “what was the point of this,” and what had become of his life. He was extremely depressed. And so we spent a lot of time processing this and then ultimately he did great in his deposition.

[4:27] Bill I imagine that took a lot of effort on your part to get the temperature down. What I see sometimes is defense counsel brings them in and starts throwing policies and procedures, employee handbooks, documents, videotapes of the accident—it’s like, now wait a second there. If you don’t get through that emotional barrier… because I’ve seen a lot of truck drivers just not be honest because they’re, they’re angry. Can you talk a little bit about your professional experience and your understanding of emotion and how emotional witnesses can really derail a case if you don’t address it appropriately?

[5:11] Alyssa Right. And we’ve seen a couple of different specific emotional types, especially within trucking witnesses specifically. That includes you have your witness who is very readily and willing to agree to any premise the plaintiff attorney puts forth. And that’s usually caused by one of two things. One is—you especially see this with truck drivers—they feel guilty. It was a tragic outcome and whether or not they’re at fault for that outcome, it’s a really hard pill to digest, especially if someone did die in an accident. And then the other type is that they feel insignificant or incompetent in some way because they’re in a room full of very high-powered business people and intimidated by the process. So they’ll agree to anything the plaintiff attorney says because they just want to get out of there; they’re what we call a “flight” witness.

[6:09] Bill Now you’ve also worked on several mock trials and focus groups. So tell our audience pre-pandemic—so pre-COVID-19—and I think I know the answer to this, I kind of do, but I’m just kind of tossing you softballs: what was the general feelings towards trucking companies in the industry from jurors across venues in the United States?

[6:35] Alyssa Listen, I work in a lot of different industries for civil litigation and there are a handful of industries that I think actually start off on a lower peg to begin with. And the trucking industry unfortunately is one of those because almost everyone has had some experience with a semi or truck on the road that’s not been positive. And it’s easy to bring that into the case with you. And then there’s certain areas—for example, I’m located in Texas, and West Texas is a known area where the general temperature there is very negative towards the trucking industry. And so it just doesn’t work favorably. And when you have a witness who makes either some admissions or comes off looking cold or defensive, it just plays into those preconceived notions the jurors already have of the industry.

[7:30] Bill So now we’ve had two months of COVID-19 in which you’re seeing a lot of very positive public relations messages about the trucking industry. They’re calling truck drivers heroes for the first time ever. They’re kind of putting them on the same pedestals as the physicians, the first responders, the nurses. Everybody is asking me this question, I’m sure you’ve been worn out by clients as well—I think it’s a really complicated answer—but does that type of positive PR carry over into the deliberation room? And my answer to this is it really depends on probably where you’re at in this country, because I’d say you try a case in Philadelphia, I don’t care… remember there are these judicial hellholes we have which you know, Jesus could testify as your corporate rep, it’s not going to matter. What are some of your—I don’t want to use the word prediction—but just kind of thoughts on is that going to carry over and maybe what the industry can do to try to get it to carry over?

[8:32] Alyssa So I think that the “it depends” answer is by far the best. With that being said, I also have talked to a lot of people in the transportation industry and they’re feeling very positive about the ramifications and implications of what’s been going on. Unfortunately, there has been the start of research generally speaking to see what juror attitudes might actually be like and preconceived notions about various corporations and industries are unfortunately very entrenched. So even if there is kind of a positive peak that’s going on right now, the question is: is it going to be short-lived? Are they going to go back to their originally entrenched beliefs?

We have found in some research that the vast majority of people surveyed have not changed their views on corporations. And for those that have, there’s actually been a little bit of a dip towards the negative. So we’re not seeing exactly what the prediction and the hopefulness that things would improve actually bear out.

The other issue that has become important is that people want—yes, people have been excited and they’ve been proud of the truck drivers and see them as heroes because they’ve been working this whole time and they’re the ones that have been delivering goods to us—but how the companies themselves have responded to COVID-19 is what’s gonna make a huge difference as well. It’s not just the lip service; it’s have they actually taken actions and done things to either help the community or help their employees. I think that’s gonna make all the difference in how the juror perceives the company itself.

[10:12] Bill And yeah, there’s a lot of data to collect and a lot of research out there now. Unfortunately, again, you’ve been thrown into some pretty tough situations in the trucking and transportation industry. Could you tell the audience the difference really in your ability to do your job as a litigation psychologist when you get called early on in a case—typically maybe sometimes even before discovery started, to get involved before depositions to prep witnesses, corporate reps, safety directors—versus giving a call two months before trial? Discovery’s closed. Describe the ability and what that does to you as a litigation psychologist in those two very, very different situations.

[11:01] Alyssa Yes, it’s the difference between being preventative and being reactive. So when I get called in early on, there’s a chance to number one, address a lot of the pre-existing emotion in whatever witness, whether it’s the safety director, the corporate representative, or your truck driver. I can address the emotion. I can address all the reptile tactics that will be used successfully against them if they’re not properly prepared, and just generally a lot of tactics that get used to get these types of witnesses to make mistakes in depositions. And you would be amazed at the difference before and after that work, and sometimes it takes several sessions to get to that point.

Getting a call after a deposition or right before trial is trying to unring a bell. And while there’s definitely work that can still be done and a lot of improvements that can be made, you are stuck with damaging testimony that’s already been made. And so now it’s how to work that into their trial testimony in a way that’s still going to be effective and work for your side. But again, a lot of admissions have already been made in many of these cases that it’s hard to walk away from.

[12:15] Bill So is it fair to say that early aggressive intervention is the best way to go in these types of cases as opposed to waiting?

[12:21] Alyssa Without a doubt, without a doubt. I think it can make a huge difference in your company’s exposure and media coverage and the amount of money that’s involved.

[12:31] Bill Yeah, my experience has been sometimes because of the different layers of insurance, until you get to a certain layer, the layers below don’t care because they know they’re paying out anyway. And sometimes it’s just the actual, it’s just the nature of the beast. By the time maybe an excess carrier gets involved and the demand’s twenty-five million dollars, okay, well now we’re gonna start to get ready—and oftentimes that’s too late. And the economic consequences of that is… well, pick up your newspaper or go online and you’ll see how many nuclear verdicts have hit the trucking companies disproportionately to other types of companies.

Last question, and I’m gonna switch gears on you here, but the same issues regarding healthcare. Because I know you do a ton of work in healthcare working with physicians and nurses. They’re getting another… and they’ve always had it, but now it’s even more probably, I’d say much more than a trucking company, the positive PR right now. It’s almost on an hourly basis, maybe at least daily. There’s a feel-good story on any of the three major news networks about a healthcare professional or a hospital. And these stories are on an hourly basis. Does the same phenomenon—same question, Alyssa—does that carry over into the courtroom in some of these maybe medical malpractice cases that you’re gonna see once you start to see people filing lawsuits again and getting into the courtroom?

[14:01] Alyssa Yeah, you’re asking a tough question, Bill, I don’t know the answer for sure. What I can say is unlike the trucking industry, there’s generally speaking a more positive attitude towards physicians and nurses in the first place, and so I do think there is gonna be a bit of a carryover. With that being said, we’re entering such a novel, novel situation in our lives right now that it’s really hard to say what potentially the outcome of that’s gonna be.

[14:33] Bill Time is gonna tell. Time is going to tell, but I know that particularly in healthcare and trucking litigation—that we may have hit the pause button, but it’s certainly not going to slow down once things get back to the “new normal.” Well, Dr. Alyssa Parker, thank you so much for being on the podcast.

[14:46] Alyssa My pleasure, thanks for having me.

[14:49] Bill We’ll have you back soon.