Episode #59 – Best Practices for Large Cases

Trial attorneys and partners Thomas Segars & James Weiss from Ellis | Winters join the podcast to talk with Dr. Bill Kanasky about high exposure litigation and their process to approach these cases. Tom and Jamie share the importance of getting started early and the work they do on thinking about the themes for both the defense and for opposing counsel. They emphasize the need to meet with your witnesses early, well before the deposition, and to build rapport and trust with them and to conduct early evaluations of the witnesses based on those discussions. The group also discuss the challenges of dealing with “smoking gun” bad documents and how best to manage those documents. Tom and Jamie share their philosophies on witness deposition preparation and training, especially when dealing with difficult witnesses such as former employees and their take on virtual depositions and the pros and cons. Lastly, Tom, Jamie, and Bill discuss the importance of investing in mock trials and conducting them scientifically and realistically, especially because of what’s at stake.

Full Episode Transcript

[00:05] Bill Welcome to the Litigation Psychology Podcast, brought to you by Courtroom Sciences. I am Dr. Bill Kanasky here with two very, uh, good friends, long-term, uh, colleagues, clients: Mr. Jamie Weiss, Tom Segars from Ellis and Winters up in the great state, the Tar Heel State. By the way, I’ll leave it at that, North Carolina. Uh, Jamie, how’s it going up there?

[00:30] James Pretty good. We’re, uh, I think we’re having weather like you might be having today, Bill. I think it’s going to be in the 70s, which is a miracle for this time of year.

[00:37] Bill Hey, listen, I got sunburned last week and I’m not—listen, whether you’re in Texas or Chicago, I have no sympathy for you. I mean, come on. I mean, the Sunshine State’s where it’s at. Tom, how’s it going up there for you?

[00:49] Thomas Everything’s great. So, uh, enjoying the, the Tar Heel State, finally getting some Tar Heel State weather.

[00:55] Bill Well, yeah, it’s, uh, we, we badly need, uh, spring to settle in here. It’s that damn groundhog is what it—I blame the groundhog. Um, don’t, don’t trust that guy. Um, Tom, can you start? Tell us a little bit about the firm. Um, you guys have been around a long time. I’ve been working with you guys forever on some huge cases. Kind of give us a little, um, just 30,000-view kind of snapshot of the firm, kind of where you’ve been and where it’s going.

[01:22] Thomas Sure. So our firm was founded in 2000. I joined the firm in 2003. It is a pretty unique place. I, I think it is a primarily litigation boutique, although we do have some real estate, uh, transactional attorneys who work with us. But the founders of the firm—I think there were 11 of them at the time—came over from a larger regional firm, wanted to have a little bit more autonomy, wanted to have a little bit more flexibility in the way that they serve their clients. And so we, we presently have a little over 30 attorneys. We’re in Raleigh and Greensboro, those two offices in North Carolina. And the thing I love about it is, uh, we continue to do the type of sophisticated, uh, litigation that we enjoy doing that, you know, you usually get at a big regional firm, but we can do it at a smaller boutique with, you know, it’s a little more intimate, a little more autonomous.

[02:23] Bill I think that’s cool. Jamie, what’s—what do you think are the advantages of having the, the, the smaller, maybe under 50 attorney type of law firm versus some of these monster firms that have, you know, 17 offices across the country?

[02:42] James Yeah, well, Bill, I think you, you may remember, but I started my career at a firm like that. And I think when I left they had 1100 lawyers worldwide.

[02:49] Bill Wow.

[02:49] James You know, I, I don’t know, 20 or 30 offices. And, coming to Ellis and Winters was, was just a sea change in a number of ways. But, but it—the caliber of the lawyering didn’t change, which, which was the part that I think was the most important. Coming to work with people like Tom and the rest of our colleagues, you know, you’ve still got really smart, really good lawyers and you’ve got the ability to handle, you know, the same kinds of cases, um, even, even on a smaller platform, just because you’ve got, uh, you’ve got people with those capabilities. And so I, I really enjoyed that. And I enjoyed the, the freedom to practice in a lot of different areas instead of getting sort of pigeonholed into, you know, a very small niche area. You know, I like, I like variety and, uh, I’ve certainly had that since I got to Ellis and Winters.

[03:41] Bill Well, that’s excellent. And again, I’ve been working with you guys for a long time and we worked on many different types of cases, usually pretty large exposure cases. Tom, can you talk—what I want to start off with today is how do you, you know, when you get these massive cases, and let’s, let’s just call them, you know, everybody’s talking about nuclear verdicts. What’s the definition? I don’t, I don’t have the answers to all those questions, but I do know when you have a case that’s, let’s say, over a hundred million dollars in exposure and you know it, and maybe you have a couple co-defendants involved, and you know it’s going to be massive—can you talk a little about how do you approach those cases, particularly early on to position yourself in the right way? Because I am—again, I’m not a lawyer—but I would imagine that where things go wrong in those cases, probably bad things happen early and then they carry on later down the, the timeline. Correct?

[04:35] Thomas Yeah, I think that’s exactly right. So, uh, there is a lot of, um, sort of lawyer work on the front end with, with interviewing your client. These, these cases tend to be very, uh, document intensive. There are tons of documents. Reviewing these documents, uh, trying to put yourselves in the shoes of your litigation adversary and say, “Okay, if I had all these documents and I had this story, uh, what points would I try to tease out, uh, in deposition testimony and through written discovery?” And so that’s, that’s sort of fun because you put yourself in the shoes of your litigation adversary and, and you try to make a plan and you try to identify, “Okay, these are the strong, uh, themes for our defense. These are the points that I think a very good plaintiff’s attorney is going to try to make hay with, either fairly or unfairly,” and you try to identify those things and, and hear the stories from your own witnesses, uh, for the first time before your oath in a deposition. And, uh, your, your batting average improves as the case goes on. I mean, at first you’re, you’re not going to identify every one of those potential issues. Some of them are going to come out as the case goes on. But we’ve done this long enough that I think we’re pretty good at catching most of those issues and predicting them. And then it’s sort of a process of continuous improvement. You know, after the first couple of depositions happen and you see what lines of questioning is thrown at your witnesses, you can better prepare the next folks.

[06:16] Bill Yeah. Jamie, we’ve done countless witness preparation sessions together. Can you maybe talk about the, the importance of—not the—I think the witness preparation importance is pretty obvious, but more about the importance of those initial discussions that you’re having with witnesses, which is more of a interview slash assessment, uh, gaining trust, kind of bonding with these witnesses, and how important that is early on, uh, uh, to what you’re gonna do going forward?

[06:46] James Yeah, I, I think it’s, it’s critical, Bill. And as you know, you know, you sit down with, with witnesses and they run the gamut. You know, some of them you, you talk to them the first time and you know that this, this person’s going to be a solid witness. And some people, you know, for, for whatever reason, you think this is, this person’s gonna need a lot of work. And so I think it’s important for two reasons. One is, you know, you, you talk to people early on and you’ve got enough time to put in that work in advance of a deposition that might not happen for, you know, several years, in some of these big cases. But at the same time, like you say, you’re building that rapport and camaraderie with the witness. You may, you know, meet with them, you know, I know we’ve had some people, you know, probably we met with a dozen times, between the first interview and, and the deposition. And so, uh, you know, building that rapport, uh, with them and, you know, continuing to work with them over, over a longer period of time is, is important. And, and I just want to say, it still astonishes me sometimes I go into a deposition and, you know, it could be a co-defendant, somebody who’s got the same, you know, risk that we have on the line, and the plaintiff asks them, “What’d you do to prepare?” and they said, “You know, I met with my lawyer yesterday for a couple hours.”

[08:06] Bill Insane. It’s 2021. Come on. That’s unbelievable, isn’t it? It’s almost malprac—I think it’s almost legal malpractice at this point knowing what we know on the importance of witness preparation. Gee, that’s, uh, that’s crazy. Jamie, on the same note, how do you deal—and again another kind of theme that’s come up in the cases we worked on together—how do you, so along with those kind of introductory meetings and then as you ease in the witness preparation, how do you deal with the, the smoking gun bad documents? Typically it’s either, it’s usually a correspondence like an email, something that you read and you’re just like, “Oh god, this looks so bad.” How do you initially handle those, uh, with witnesses? Because you know it’s gonna come up, you know?

[08:54] James Yeah, I mean, it’s the same thing I’ll say. I mean the, you know, I don’t know who said this first, but I think the secret to, to good lawyering, or at least one of the primary secrets, is, is preparation. And, you know, you’ve just got to practice and, and go over this stuff over and over again with your witnesses so that they’re comfortable with it. You know, because oftentimes they’re embarrassed. You know, they’re embarrassed they sent that email, uh, you know, they, they wish they could take it back, and, and they’ve got to answer for it. And so, you know, going through the practice and, and preparation on a repeated basis I think helps, gets them more comfortable with it. And, you know, I think they just need to understand everybody makes mistakes. You know, we’re all human. And you know, you’ve just gotta own up to it and, uh, you know, take responsibility for it and, you know, it is what it is.

[09:47] Bill Yeah. Tom, one more, one more question about witnesses. How do you—I have found in my, in 17 years of doing this, I’m not sure there’s anything more difficult than dealing with the witness that is the former employee that is likely left under bad circumstances, but now they’re a key factor in your case. How do you tend to approach that mess? Because that can get very, very ugly.

[10:13] Thomas Right, uh, well, that is—that can be a very difficult situation. And I guess the, the first step, uh, to take as an attorney is to figure out whether you can represent that witness jointly with your client. Sometimes you can, sometimes you can’t. That’s a matter of, of ethical rules. If, if you can, that makes it a lot easier. Uh, if, if you can’t, um, I will often advise my clients, uh, to offer to, to represent this which—to offer to, uh, to pay for a different attorney to represent this witness because, you know, I want a very good attorney who will, who will tell that witness, “Here’s what’s going on. I know you left the company on bad terms, but your, your interests are to do well in this deposition, uh, and, and in that, in that regard they’re aligned with your former employer.” So it’s much easier to have that conversation when the witness has someone, uh, who she or he feels like they, they can trust, uh, that is working for them. And you know, I’ve had some clients resist that, but I think it’s money very well spent to put that witness at ease.

[11:21] Bill Yeah. No, I think you’re totally right because obviously there may be a motivation to torpedo your case, which is—right, which is what you don’t want. Uh, let’s shift gears a little bit and talk about the use of mock trials and focus groups. And so these big cases, you know, the one thing that I really like working with your firm is you guys are very aggressive and you’re very proactive early. Uh, we’re not doing mock trials on the eve of trial, uh, doing them very early more to assess cases, figure out what’s going to work, what’s not going to work. You know, we’ve had several cases whereas, okay, do we admit liability? Do we blame an empty chair? Do we, do we blame a co-defendant? Um, Jamie, can you talk a little bit about the importance of doing these mock trials and doing them the right way? Because what I have seen, particularly with, uh, in the insurance defense industry unfortunately, is they’re trying to squeeze a two-day mock trial into one day to save money, whereas a lot of these, a lot of these issues are very complex, there’s a lot of documents you have to go over, there’s witness clips. Okay, talk about kind of not just the value of mock trials in these large exposure cases, but the value of doing them the right way so you’re getting answers you can actually use further down the road in litigation.

[12:43] James Yeah, well, I mean it’s like the saying, “Garbage in, garbage out.” I mean, if you, if you try to condense something, you don’t get all the evidence that a real jury’s gonna see in front of your mock jury then, you know, can you really trust the results that, that you’re getting back? So yeah, I mean, I think it’s, it’s, it’s critical. And, and when you’re talking about the potential exposure, you know, it’s not a time to try to cut corners and say, “You know, I’m going to save a little bit of money on the mock trial.” I mean, you know, with the amount that, that you risk, uh, that you risk losing at trial, you might as well invest that money to try to get something that’s, you know, a usable result. Particularly early on, you know, you, you can evaluate whether there are pathways to, to settlement and, you know, you know what your risk is, uh, as you’re, as you’re starting the case rather than right as you’re getting to the courthouse steps.

[13:41] Bill Yeah. Tom, can you talk a little bit about the importance of having somebody play the role of plaintiff’s counsel that is a badass? I remember our little case, we got a badass to be the plaintiff attorney and boy, we got clobbered. Talk about the importance of really having—you got to have a heavy hitter to take your best punch during the mock trial, otherwise, uh, yeah, I really think maybe your results may not be very valid or, or reliable.

[14:12] Thomas Yeah, I, I think it—you know, to Jamie’s point about garbage in, garbage out, you know, you’re trying to simulate what this is be like. Uh, and when you were dealing with a very skilled adversary, you want to, uh, make that case as persuasively as you can because that’s what you’re gonna face in trial. And it doesn’t do you any favors, uh, to sort of give that short shrift. And in fact, I mean, for your own knowledge, your own decision making, you’ve gotta see what that’s gonna look like. Um, and, and one, one thing I’ll say that, you know, this goes to witness prep and to mock jury: I, I think it’s important to show mock jurors and to show the witness, you know, what opposing counsel is going to be like. Um, because that can be incredibly off-putting to someone. If you have opposing counsel and she wears sweatpants to every deposition, or an opposing counsel who gets up and walks around the room, puts their feet up on the table—you know, the first time that happens, I mean, the witness is sitting there in a very, you know, stressful environment anyway. I mean, all of their sort of preparation can just fly out the window when something oddball like that happens. And so, you know, I think as silly as it is, it’s important not to just match their intensity and their substantive persuasiveness, but, you know, show a little bit about what they look like and how they behave and how they act.

[15:40] Bill Well, um, well there is this, um, you know Tom, you are legendary—and again we won’t mention any—you have, uh, some legendary impersonations of some pretty famous plaintiff attorneys, um, that I think is exceptional when you’re putting, um, particularly witness preparation to prepare these witnesses more for the psychological attack that they’re gonna get. It’s not just the bad documents, it’s the level of aggression. It’s the attorney becoming condescending, sarcastic, you know, some of the, the table pounding that goes on. Um, Jamie, can you talk about the importance like when you’re doing mock questioning with the witness how you, you kind of almost have to be a jerk? Like you really, really want to role play what that adversary is going to be like. And if they’re, if they’re an advocate that you know is very aggressive, then you got to be very aggressive in your mock questioning. On the other hand, if it’s one of those questions, it’s more of the Columbo, kind of laid-back, “I’m going to be nice to you and start a conversation and be your buddy,” I think you need to role play that style. Would you agree?

[16:46] James Yeah, I, I agree. You, you do need to show the wit—I mean, you need to show the witness what they’re going to see, um, in a deposition. And, and I think, you know, one of the greatest compliments I get, you know, after a deposition, is when the witness comes back to me and says, “Man, you were harder on me in our prep than the lawyer was in the actual deposition.” But you know, to your point about Tom’s impressions, you know, you’re in these big cases, you’ve got dozens of depositions, you’re spending all the time, uh, with the lawyers on the other side. It, it’s—it’s easy even for someone who’s not as skilled as Tom to just, you know, try to, uh, do the kinds of things that they do. You know, whether they’re, you know, slow questioner, you know, rapid fire. Um, you know, you, you will have seen it before and you can execute that in preparation. I think that’s really important to give the witness, you know, as close to a, you know, live exercise as you, as you can get.

[17:46] Bill Yeah, um, so as we push forward, uh, here into the spring, approaching summer, has the—and maybe the answer is no just yet because we don’t, we don’t know much yet—but has the firm, have you guys had any partners meetings where you’re talking about maybe, you know, how you’re going to change your jury selection style? Um, maybe different voir dire approaches you’re going to use post—well, it’s the three things that we are actually studying at Courtroom Sciences and, um, trying to lead the way on this because here’s what you have: you have post-COVID obviously, right? You’ve got post a lot of civil unrest in the last year, and you’ve got post-election. And none of these three things are really settled nor are going to be, I think, in the very near future. And I think it’s, it’s—it’s affected every—you have to understand 9/11 affected everybody, but it kind of didn’t at the same time. It affected a certain, geographical area, affecting everybody across the country at the same time. This is something that’s affected everybody. Have you guys had those discussions kind of internally about, “Hey, when we get back in the courtrooms, we’re going to have to probably change the way we question these jurors”?

[19:05] Thomas Well, uh, we’ve, we’ve had discussions but not a lot of answers. And I think, um, what, what’s scary about it—you’re absolutely right, Bill—some, some huge changes have happened in our world within the last year, but people are experiencing those in their own homes, you know? And, and the, the sort of regular social communication that happens where people exchange different ideas, different viewpoints on things—that’s not happening. And so the same way, you know, even before the pandemic, uh, before George Floyd, but before the election, uh, people were in their own echo chambers. You know, “I select the news that I want to read.” And I get, uh—that’s, that’s been almost—it’s been intensified now by the fact that people are literally in their own homes with their own families and not communicating with others. So I think it’s doubly dangerous. Um, you, you just really cannot assume how people are going to react to things. Um, it’s, it’s funny, I, I have had—I’ve worked on cases with lawyers from places like California. They’ll come here, hear a witness say something, and they’ll say, “Oh, the jury’s just gonna hate that.” You say, “Well, you know, not here in North Carolina. More people think like that than, than you think.” So it’s hard to predict.

[20:20] Bill Yeah, I was thinking the same thing because, for example, you take a, you take a state like Florida. Florida—and again I’m not going to get—understand Florida is pretty much wide open. My family, my family and I go to dinner three, three times a week to support the local businesses, and you know, you worry about it. It’s, it’s—and then I traveled to St. Louis, I traveled to Chicago, it was a ghost town. I mean, downtown Chicago was a ghost town. LA, ghost town. The people in these two very different types of areas you would think would respond to things different, and not, and not just the jurors but the attorneys as well. Jamie, kind of same question to you: how, how are you approaching things as we, as we probably see somewhat of a slow reopening here, and maybe how you’re going to, um, approach jury selection, types of things you may have to look for? And again, I’m not sure if there’s any answers just yet.

[21:19] James Yeah, I, I don’t think there are any answers just yet. I mean, you know, you guys have talked about the, the politics and, and, and that part of it, but I, I think just as important is, is the pandemic and the way that, that people have been locked up, um, you know, in some places for a year. And, you know, you can’t even, you know—yes, it’s different in Chicago versus Orlando, but, you know, it’s different from one side of, you know, Wake County where we live, to the other side. And so you’re going to have a jury pool that, you know, has a mix of, you know, people that, you know, basically got their groceries delivered and never left their house for a year, and people that, you know, were, were back out, uh, going to bars and restaurants as soon as they could. So, um, you know, Tom and I had a, a bench trial last summer. And I, I just remember seeing the, the courtroom, because some of the courts are still having jury trials in criminal cases, and, and you know, they had the jury box all spaced out. Uh, and, and just—I mean, you can imagine somebody that has been, you know, on lockdown trying to adjust to having to be indoors, you know, for, for a trial. Um, I, I just think there’s going to be a lot of, uh, a lot of difficulty sort of sussing some of that out. But you know, that’s what voir dire is for, I suppose.

[22:42] Bill Yeah, it’s, um, it’s quite terrifying. And I think it’s going to—I think you’re gonna see, um, again, probably—I think jurors were different obviously in different regions of the country to begin with. Now it’s gonna be just another couple layers of complexity. Um, and we’re just gonna have to take it week by week and, uh, do the research as jury psychologists and share that with you guys. And hopefully, uh—I do think that’s actually going to, um, I would think, um, increase the need and desire for mock trials and focus groups to relearn how jurors make decisions. I think what you knew in 2019, I wouldn’t rely on that to pick your jury today. I think that would be suicidal. Um, I think we’re going to have to do, um, um, ask some much different questions in voir dire. I’ve already got a script, I’m just letting you know. I’m making some, some new ones based on what I’m, I’m seeing. Um, let’s wrap up the podcast with your experience. This is such a popular topic. We did an entire—we’ve done two podcasts alone on this specific issue. Dying to hear your, um, experiences with this. Um, the Zoom or Webex or whatever you want to call it deposition. Number one: your experiences, and number two: is this here to stay at some level due to the staggering amount of cost savings and efficiencies it builds? Tom?

[24:08] Thomas So I’ll take your, your questions out of order. I think it is here to stay. I think the cost efficiencies are just too great. Um, and people are, are realizing that they can save a lot of money and that’s a good thing. Um, but in terms of the effect that it has on questioning witnesses and—I, I think you and I disagree on this, Bill, because I sent you an email about this. I, I think witnesses are more agreeable by Zoom, more likely to agree with a question that’s, that’s put to them. And, and I think it is this sort of inherent desire to help and the fact that, you know, you’re communicating through this strange medium. There’s a little bit of a time lag, there’s less understanding—I, something about it appeals to the witnesses’ desire to help the questioner understand which, as you know, is not the point of the questioner’s questioning. Um, but, but my sense is witnesses tend to be more suggestible and, as people who prepare witnesses, we need to remind them of that. That, that their job is to, is to testify truthfully. Yeah, um, it is not to necessarily explain something to the questioner who has her or his own agenda.

[25:28] Bill Yeah. And Tom, I don’t, I don’t think we disagree per se. I think that the prepared witness, um, doesn’t have to go down that road if they’re prepared properly and, and trained properly. I think what I’ve seen, um, after—I mean, I’ve done now I’ve done over a hundred, I mean probably approaching 150 Zoom witness preparations, witness trainings—and I think the plaintiff attorney aggression and bite has been taken out of the equation by the technology, which is, a, a good thing, but, b, maybe what you’re suggesting is it kind of makes the witness a little more comfortable when they should, you know, they should be, you know, they should be really, um, they should be, uh, um, you know, be very wary of their adversary. Jamie, what’s been your experience with the, um, with, with the Zoom, um, depositions, deposition preparations? And again, same kind of part b: is this here to stay, um, in some circumstances at some level because of the efficiency and cost savings to clients?

[26:34] James Yeah, I’ll, I’ll do like Tom and take the second, second half first. I mean, it, it’s undoubtedly here to stay. I mean, you know, I had a case in California over the past year and, you know, I’m sitting down for depositions in my office that start at one o’clock Eastern time. And, you know, that was a three-day endeavor. You know, in the past flying to the West Coast, taking the deposition, you know, not being able to fly home or having to take a red eye. So just not, not just the cost savings, but the time.

[27:04] Bill Yeah, the travel times, oh my gosh, is huge.

[27:08] James So it’s definitely going to be here for certain witnesses. Obviously there’s still going to be, you know, important witnesses that you’re going to want to do in person, that you’re going to want to, you know, have the ability to size up in person. But I think it is here to stay. You know, as far as the experiences go, I, I tend to agree with Tom. You know, one of the things we talk about all the time with witnesses is, you know, “Stop volunteering.” You know, “Just answer the question.” And I think when you’re on a Zoom, like Tom says, you, you’re just sort of—you think, “Okay, I know a limited amount of information about the topic that I’m being asked about. I’ll just spit it all out and then we’ll, you know, be done and move on.” Because I, I do think witnesses and, and all of us, you know, when we’re in this environment where we’re on the camera, you know, a lot of people have a tendency they, they want it over as quickly as possible. And I think that exacerbates the tendency to, to over-share and volunteer.

[28:04] Bill Yeah, I agree. There’s, yeah, yeah. And if you’re doing it in your living room or even if you’re in an office at work and again without those eight people in the same room, it just—it changes, it changes everything. So I think we’re going to have to prepare witnesses different going forward. Awesome. Well guys, we well guys we’re out of time. Tom, Jamie uh you guys are great friends. Thank you so much for being on the podcast. Obviously if you need anything uh reach out and um good luck as everything uh gets into the spring here and be safe out there okay?

[28:36] James Thanks Bill.

[28:37] Thomas Thanks you too Bill.

[28:38] Bill Awesome and to our audience thank you so much for being part of the Litigation Psychology Podcast brought to you by Courtroom Sciences. We’ll see you next time.