Episode #102 - Witness Training for CEOs and Executives

Dr. Steve Wood and Dr. Bill Kanasky, Jr. talk about witness training for CEOs and some of the challenges with training C-level executives for deposition and trial testimony. Steve and Bill discuss how they work with these types of witnesses and some of the steps that these executives must be open to in order to maximize the benefits of the training and perform well during testimony. They describe the social psychology concept of state dependent learning plus how an executive's potential negative attitudes about attorneys can impact their approach to their witness preparation. Steve and Bill talk about the impact an executive's anger related to the litigation can have on their preparation and also why CEOs have to be okay with saying they don't know something, even if that is uncomfortable for them. Lastly, they cover the importance of how one dresses during testimony, the criticality of taking cognitive breaks while testifying and not just using breaks to catch up on work, and how their behavior at the defense table can impact juror perceptions during jury selection and the trial itself.

Podcast transcript:

Dr. Steve Wood  00:16 Welcome to another edition of The Litigation Psychology Podcast brought to you by Courtroom Sciences Inc. Dr. Steve Wood and joining me is Dr. Bill Kanasky. Bill, how the heck are ya?

Dr. Bill Kanasky, Jr.  00:27 Barely alive. COVID sucks. I don't have it. I have something else, but my wife got it. She’s still stuck in LA. She had to quarantine. Absolutely unbelievable. Not good. Let me tell you my first story. So, idiot me decides to fly home the day after Christmas out of LAX. Okay, do you see where I'm going with this? Sounds bad already? Yeah, absolute disaster. Now I see why these people are getting into fights at the airports now. I just wanted to hammer somebody. Oh, it was crazy. Oh man going on my rant right now. It's the people. They don't walk, they stand on the people mover. You know what I'm talking about? It's like an escalator but flat. Right? Hence the people mover. Right? And you're supposed to get on that. And then you walk on that and it gets you to your gate faster, get you to your bags faster. Everybody's standing on the people mover, like standing. And it doesn't even go fast. So I ran a few people over. That was fun. I enjoyed that. But uh, yeah, LAX day after Christmas. Very, very, very bad. I'm not sure if I'll be doing that again. I may have to if I go out there again, I'm coming home on a different day. How was your holiday?

Dr. Steve Wood  02:03 It was good. Pretty, pretty quiet. You know, the kids getting their presents and stuff. And then just watching them do things for the day. So it was it was pretty quiet. Luckily, knock on wood. No one got sick. Everything was good.

Dr. Bill Kanasky, Jr.  02:15 Yeah, yeah. Today, we need to talk about witness training with the CEO. Actually really any C-level executive, but we'll call it CEO. CEOs. the good thing about CEOs is that they're usually extraordinarily intelligent, and successful. And they're also very important witnesses and in a lot of cases, I've run into a couple things I've jotted down here, which makes things very challenging for these folks. And you know, doesn't matter what race, these people are all kind of wired the same. And number one, these people have no time. Okay, these people have you tried to schedule the witness prep, and you know, good luck for them showing up on time and good luck for them being around for very long, and I get it. Yeah, the CEOs busy. they have a lot of things to do. And what I have found is trying to get enough time. See, I mean, corporate reps hard enough, right? I mean, yeah, you get the CEO. It's, it's, it's a little different because the time stress so oftentimes, they try to block up these, these sessions and maybe go two hours at a time over several days to try to get it all in. Be-cause the odds of them sitting there with you for six or seven hours, is is pretty is pretty low. So I think that's one of the first challenges we see. Number two, ego these these are these are extraordinarily confident, people, how do you because what I always believe that you have to like Dean Smith with Michael Jordan, you got to break him down or her down and then build him back up. Talk to me a little bit about how you get something somebody super confident, doesn't have to listen to anybody. They're the CEO, how do you break through to gain their trust and to get them the kind of rethink things?

Dr. Steve Wood  04:29 I think one of the biggest things I do obviously, first things first is build rapport and let them know what you're there for. You're not an attorney and how you're bringing the more psychological aspects to it. You know, but one of the things like you talking about about breaking them down is I reptile them I do things I do little games with them that basically highlight the point that they're going to make mistakes so you know whether or not it's a listening exercise where you know, you try to put a trick or trap something half truth in the statement and see whether or not they catch it most of the time, they don't catch it. You know, and I the way I usually do it, it's something that's extremely ridiculous that they should have caught and they miss it. And then I always say, Okay, well, I caught you on that. What happens if I catch you on something that's more minute? Yeah, this case, you're gonna, you're going to completely miss it. So doing things really where you show their vulnerabilities and show them, the mistakes that they made, you know, tends to get them to open their eyes a little bit more and take a little bit more seriously. Yeah.

Dr. Bill Kanasky, Jr.  05:31 And that, we call that forcing cognition where we have to force them to slow down, because they're such fast processors of information that they, they miss things. And that can be that can be devastating. One to number three, distracted at work. Okay, so I'm working with the CEO who shall go unnamed, and the first two sessions were in a conference room at the company. Wow. I mean, the, you know, you got the, the phone has to go away, you can't have administrative assistant coming in passing notes every 10 minutes. Do I always find that is far more productive for witness training? What do you think?

Dr. Steve Wood  06:19 Yeah, I think you know, like you said, trying to find it away. Or if there's a conference room that has glass, you can see through it, if it has the shades, the shades doing doing any of those types of things, I think, getting to the point where the CEOs need to understand that, you know, their role in the case, and that if they don't do well in the deposition, it can mean the difference between winning the case and losing the case, I think you have to impress upon them that that fact that they need to take this seriously, and that we're there to help. And if they don't, it's at their own peril their company, which obviously, as a CEO, your first priority is going to be to your company, right, and making sure your company shows well in that position.

Dr. Bill Kanasky, Jr.  06:58  Yeah, and doing that on your home field typically is not a good thing. Because rarely is the DEP going to be there. It's going to be at a law firm. Exactly. So I think that's so let's, let's kind of take a little right turn here into some more social psychology, we would call that us big guys would call that state dependent. Learning Exactly. All our audience about state dependent. Let's see, I did take some social psych, I'm not an idiot.

Dr. Steve Wood  07:28 Dependent learning, obviously, what state dependent learning is, is where, you know, you're, you're in a better position to remember things to perform at a higher level when you're in the in the spot where you're actually going to have to perform. So for example, one of the classic things actually, so they talk about whether or not someone has, you know, drank while they're studying and then whether or not they've smoked weed while they were studying. And then going to take the test, they say you're actually in a better position, right to have smoke weed again, or drink again, when you're actually taking the test.

Dr. Bill Kanasky, Jr.  08:00 So to all the college students listening to the podcast, ignore Dr. Wood. But I think it's I'm going to go back to my sports analogy. You know, if you're playing on Saturday or Sunday, you should probably be practicing on turf during the week. And I know, and a lot of baseball or some football homes are extraordinarily loud, because it's a basketball court. And they will blast music. So the players can't hear each other purposely. So you have to perform in the NBA imagine practicing in an empty gym and then having to go to the Dean Smith Center. I hate to say this Cameron Indoor. I mean, it's such the environment that it's just you have to be in that state. Alright, so Number four, you already said it got to the hate attorneys, C-level executives cannot stand attorneys, which puts us in a really good position because every time they see an attorney, so the CEO I'm working with, he looks at the attorney because every time I see you, I see dollar signs. And it's bad news. That I think that is part of the deal. When it comes to any corporate executive, they may like their in house attorney, when they see the trial turnings coming up and the hourly rate, I think they kind of come in there. I mean, what do you I think a lot of them come in with a negative attitude, because you're like, man, like this sucks

Dr. Steve Wood  09:34  Yeah, they do. And I think the other thing, too, is to your point about the just the dollar signs, but the other thing is think about all the interactions they've ever had with those attorneys that Yeah, exactly. Right. That's all negative complaint that they're getting the negative communications, all the different things that are negative, negative, negative, negative, negative, well, what do you expect is going to happen when they see the attorney I mean, it's going to reengage that negative feeling that they're having so causes a problem. But yeah, I think puts us in a good position to come in and say, Hey, we're working with them. But at the same time, we're, we tend to tend to be more of the positive light for them. Right? Because we're coming in. Yeah. And that's their first experience with us.

Dr. Bill Kanasky, Jr.  10:14 Yeah, so, 12345 and anger. I see this a lot in commercial litigation, or in a catastrophic injury or death case, where you have defendants pointing fingers at each other, but a lot in commercial litigation, where it's like a contract breach, some fiduciary duty was was breached. And boy, are these guys pissed because they, they lost money, right, in some way, by the way. Now, that is the not the only but pretty close. The only area of plaintiff work that I do is commercial litigation, where one of our traditional, you know, defense clients is now a plaintiff because they're suing somebody else. Boy, is that fun. ever do a mock trial on a plaintiff case? When you're that? Oh, it's it's they will, they will bear no expense. To to win, but I've seen, I've seen the anger part, particularly when you have you know, I talk about like the homegrown CEO. Yeah, I'm not saying he or she started as the janitor. But they started and they went up the chain, and they get all the way to the top. I mean, I've seen some of those folks. And they get they get really, really, really defensive and angry when questioned about things because I think it's that that stepwise career that, that that kind of pushes them over the edge?

Dr. Steve Wood  11:52 Yeah. And I think the anger obviously, is something you need to address right up front rather than let it fester. Or just downplay and say, well, just get over it. Right. I mean, come on. Yeah. Just ignore it. No, I mean, I think you need to address the anger front. Because, you know, that that, I think is another thing to be, you know, when we're talking about kind of how we can layer in our expertise and how we bring value is, we address things and we're able to uncover and peel back the layers of the onion of that anger in a way that's different than the attorneys. I mean, I've had witnesses before that, just spending time talking to them and stuff. alleviate some of that anger that they've been having in attorney goes afterwards and said, Man, we've never been able to get her here. He or she to actually, you know, do that or reveal that information. But you need to get to it or before you move on or it's problematic.

Dr. Bill Kanasky, Jr.  12:42  Yeah, I totally, totally agree with that. All right, so 123456 refusal to punt the ball to somebody else. Yeah, the the CEO doesn't know everything going on in all  departments, it just doesn't happen. And what I found out is that they will, they will try to answer questions that they need to punt to probably one of the, you know, the PMKs. And their refusal, I think they feel bad for not knowing everything as a CEO, in your experience.

Dr. Steve Wood  13:27 Yeah, I think one of the biggest, you know that one of the biggest things they handle is the fact like you said, everybody needs to feel like they need to have an answer at all times, especially the CEO, be-cause they're the ones who are usually running the meetings, they're usually the ones who are sup-posed to have all the answers. Yeah, now you're putting in a position where they actually have to say, I don't know, don't don't know the answer. But yeah, so going back to what you said about ego, that hurts their ego as well, right, is that they don't want to say I don't know, or they don't want to be able to do that. So that what they end up doing right is stepping out on a limb speculating, trying to act like they have the answers, and you can guarantee it's gonna be the wrong answer. It's gonna be the half answer, and then they're gonna get in trouble later.

Dr. Bill Kanasky, Jr.  14:08 And then the good the good attorney, the good cross examiner will apply emotional pressure at that point in doing the case, so you're the CEO, and you're telling me you can't give me x right? When you know, the the person of finance has that information, and they start kind of guessing, which again, can bring in some inaccuracy and lead to lead to some some really bad looks. Number seven. They won't shut up. Yeah, it will not shut up. I mean, again, like you said, they're used to leading the meetings. They're used to being at the podium, and then they're at say deposition or they're on the stand, and they won't show But they I think they what they fail to realize, and what they don't like, is that particularly like I find this, like during direct examination or rehab at trial, the trial attorney is in charge, not the witness. And I think that puts them in a very awkward position doesn't.

Dr. Steve Wood  15:21 Well, yeah, I mean, I think I mean, I think really, that's one of the roadblocks in general about dealing with these individuals who are used to being the ones who give the orders would be used to being the ones who everybody defers to. And you know, that they're the ones who everybody's saying, Yes, sir. Yes, sir. Yes, sir. Now, they have to relinquish some of that power, and give it over to the attorney. And I think it's it's different territory for them, and it's uncomfortable territory for them to actually say, Okay, now I'm on the receiving end. Now. I'm essentially I'm the employee, to the attorney.

Dr. Bill Kanasky, Jr.  15:53 Yeah, it's, it's crazy. Number eight, and this is all over the place. Dress code. I mean, I've seen some of these folks come in with, you know, $10,000 watches, and, you know, the, you know, the Park Avenue suit. I've also seen them come in and sports have. It's kind of it's kind of crazy. What do you think, again, for the CEO, right? Because I think now what dress code is, for most CEOs a little bit different, what do you recommend on dress code, because you don't want to go over the top and look like a gazillionaire. And by the way, most of these folks are gazillionaires. I mean, they they are, as far as dress code, what we think and I take the number one I'm thing I'm terrible with. And I tell the first thing I tell if I'm working with a woman, I say, I'm not going to tell you what to wear, I'm going to let somebody else tell you what, because I am colorblind, I'm just terrible with that. But what she does with the proper dress codes to not be underneath and look sloppy, but also not be over the top.

Dr. Steve Wood  17:02 I think a couple things you can do one, you know we've seen with, it's more or less the, the no tie in the sport coat, right? The suit, no tie are the other thing is if you go, you know, you go tie everything really you want to be more conservative view, right? I mean, if you got to $10,000 Rolex leaving home, if you got to $5,000 shoes, leave them home, right, you don't have to dress, you know, like you're going to the beach. But at the same time, you need to find a happy medium, because you need to understand that jurors are paying attention to all those different things, whether it be your suit, whether your tie, your shoes, your watch all of those things because they're already coming in with a perception of CEO large corporation greedy individual doesn't have a soul. And I don't think you want to feed into that by your dress. So I think the two things really more of a conservative type outfit with a with a tie, or just kick the tie and just just wear a suit with no tie.

Dr. Bill Kanasky, Jr.  18:00 All good stuff, all good. Stuff. Number nine, I'm getting I'm getting to my list of 10 here, which started at five and now I just keep adding to it. This is for deposition during breaks. Okay, what's the first thing to see is going to do during a break? Phone? Right? And I mean, you told me I had to write a paper on this on the cognitive witness, but particularly the CEO, if they're on their phone, reading emails, during their break, that is, that's not a break, is it?

Dr. Steve Wood  18:33 No, that's not a break at all. And then you've run the risk of having them read an email where it's some-thing that they needed to fire they need to put out or something that they need to, they're paying attention to. And all of a sudden, now they're in the deposition, focusing more on what they saw on their email, then focusing on the questions that are in front of them. So setting yourself up for all sorts of cognitive, you know, interruptions.

Dr. Bill Kanasky, Jr.  18:58  What if you get a bad email at minute three of your break and you're in the middle of a full day deposition, I mean, that that's gonna make you know, it can make you angry, it can make you sick. I mean, all kinds of things can happen and I think the pressure those folks to check those things is really tough. It's tough to not let him do it. And maybe you have to extend the break and go listen, you got you got five minutes to look at email and then you're going to take the 10 minute break so you don't wear down cognitively by you know, using all your brain fuel happens all the time. And they really a related point. I think all witnesses but particularly the C level executives, and I do the same thing. If I if I don't have my phone on me. For 15 seconds, I started to have a panic attack, right like I'm so used to having this damn thing and it's like, you know, I that's attention You know, draw, and then you walk into say deposition or spec, obviously trial. You take that away from the. And that's right. It's kind of like having that feeling of, okay, what? I'm missing something. So that's another reason why I think it's important during prep sessions during training sessions. Don't let them have that damn phone, because it's a huge dis-traction. And then when they don't have it during the actual testimony, it's going to be trouble. Finally, finally, number 10. I feel like I'm like David Letterman up here. I should get the blimp was fine for Yeah. Jury selection. They because well, what does a What does a corporate wrap or a defense? What do you do during jury selection? You do nothing? Exactly. Yeah, you have to have perfect body language. Be engaged, look attentive, you're not talking. Right now. It just CEO talks today. And now you guys sit there for a day, maybe two days. And I see. I mean, they start out like this. And then I swear, maybe in about 40 minutes is like this. And then they're back like this. And then they don't want these. And it's, it's tedious, and boring. And I've I've consulted on several jury selections, where I had to like, kick the dude next to me like, hey, what do you what do you do? And it's like, well, it's only jury selection, like they're there. They're watching you. It's absolutely crazy.

Dr. Steve Wood  21:36  I think one thing on that point to we've talked about before is that, you know, we highlight, especially with CEOs is to understand that essentially your quote unquote, on stage at all times. And that means before you get into the courthouse, right, so those CEOs who are worried about whether or not jurors are paying attention to him during jury selection, or voir dire they need to understand that not only paying attention then but if they see you around the courthouse, and they're paying attention then to once they know who you are, anything you do outside of the courthouse in the presence of the jury that they might see is is definitely something they'll take into consideration.

Dr. Bill Kanasky, Jr.  22:08. Yeah. And we till all jurors are up sorry, all witnesses this stuff, I just think this to see any C level executive is typically more challenging. Sure, in this regard. So 2022 21 was an absolute epic show. On a number of levels, and 2022 now, with COVID, 2022's not starting out so good. I think what you're gonna see I'm not Nostradamus here, but I think what you're gonna see is a lot of these courtrooms and courthouses start going back to what they were doing a year, year and a half ago with, without, and I think it's probably going to, you know, slow down the pipeline a little bit. Because this, this new fare is pretty damn contagious. So I think what that spells for all of us, you know, trial attorneys and house attorneys, trial consultants, like you and I, is it's going to create a lot of chaos in, in scheduling. And so I cannot say I'm looking forward to that. And then you know, your night travel, so the airports will be a disaster, and they'll be there. Like, it's like, you know, it's going out of style. So I think it's, it could be,until we get to March Madness, with like, March Madness is about the time starts to warm up a little bit, people start getting outside, and hopefully be a little better. Any closing thoughts? And you can you can wrap it up here?

Dr. Steve Wood  24:02  I was looking a lot more forward to 2022 up until recently, so I'm cautiously optimistic, but at the same time, I'm worried that like you said, we're gonna revert back to where we were 16 months ago or 18 months ago, and that makes me a little bit nervous. So let's hope we don't, but looking forward to 2022 looking forward to having some podcasts looking forward to chatting to you more about these topics.

Dr. Bill Kanasky, Jr.  24:33  Oh, yeah. We will be on again soon. Thank you, everybody. 

Dr. Steve Wood  24:38 This has been another edition of litigation psychology podcast, brought to you by Courtroom Sciences, Inc. I am Dr. Steve Wood. If you'd like to contact me it's swood@courtroomsciences.com and Bill is bkanasky@courtroomsciences.com. We'll see you in the next podcast.