Bill Kanasky, Jr., Ph.D. and Ava Hernandez join host Steve Wood, Ph.D. for another edition of From the Trenches where they discuss recent observations and updates from jury research projects, witness trainings, and cases that the CSI team have been working on. First, they talk about how too many attorneys wait until close to trial to contact the CSI team for help with training witnesses for trial and/or jury research, or even jury selection, and the problems with waiting until the eve of trial to bring in help. They discuss the more appropriate timing to prepare witnesses for trial and why starting early is important, particularly with emotional or challenging witnesses, because of the significant time it takes for behavior change. Next, they talk about the pitfalls of having the witness’s spouse present during their testimony and why the spouse should not be involved in a witness’s deposition preparation nor in the courtroom. Ava shares how defense attorneys should prepare for aggressive plaintiff counsel questioning of emotional witnesses and how the training for these emotional witnesses needs to be handled during preparation. The team also discuss use of interpreters and how some witnesses for whom English is a second language sometimes request an interpreter for their deposition, however, they are fluent enough that an interpreter is not needed and actually creates a credibility issue. Lastly, the group talk about how the qualifications of an expert witness do not always translate to a strong performance during testimony.
Full Episode Transcript
[00:15] Steve Welcome to the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Steve Wood in a hotel room with what appears to be hotel rooms for the rest of my colleagues too on the call. Dr. Bill Kanasky joining us. Bill, how are you?
[00:29] Bill Yo, yo, yo. Another hotel room. That’s the nature of the beast.
[00:35] Steve I mean, I think this is one of the first times I think all three of us have been in a hotel room uh doing a podcast, but Ava, how are you? Good to see you.
[00:41] Ava I’m doing great. It’s so nice to see you both. Feels like we’ve all been very busy, so it’s nice to have a chance to see your faces.
[00:53] Steve Yeah, exactly. Well, busy is good, I guess. You know, but kind of what I wanna—what we want to do today is we want to read—go back and and revisit our kind of the “From the Trenches” podcast that we’ve done before. You know, we wanted to do this quarterly and and check in with each other and talk a little bit about what we’ve been seeing on the road and some things that we see consistently come up um in our cases. And but before we get to that, of course, we need to kick it over to Bill for his sometimes loved, sometimes hated rant. Bill, so what do you—what do you got today that people are going to love or hate?
[01:24] Bill Here was my prediction coming into this afternoon’s podcast. I think this entire podcast is going to be one big rant. That could—not that—listen, we have—I’m taking my vitamin by the way—but we have not discussed anything about this podcast. We’re all bringing our unique perspectives. There’s no plan, there’s no script. I just have a—particularly since Ava and I and Steve talk almost every day—I just have a gut feeling this is going to be a 35-minute rant by all three of us, which I’m going to start right now. Because it happened again today, and Ava, I’m so sorry, I’m going to steal your thunder here cuz I know that you’re going to go here and you’re—well, you’re welcome to jump on the rant bandwagon here. Ava, if another attorney calls me wanting help with particularly witness prep or jury research and their trial is in the next two to four weeks, I think I just may choke somebody. I I I don’t know, I don’t understand the mindset. Folks, come on. Your trial date is in 30 days or in or in 20 days and and you’re just getting ready? I—oh my gosh. Because number one, it’s very difficult to get any of us right on the calendar, but then, you know that 30 days before the trail, you know you’re writing motions, you’re doing all this crazy stuff and then we’re just going to what, jam witness prep inside of there? Um, that’s so From the Trenches from my experiences. Unfortunately, this is still happening. Uh, Ava, I’d like to hear from you because I think you and I kind of trade texts and emails going, “Oh my God, it happened again.” Is—I don’t think—and I’m not trying to be too critical—well, you know I am. No, I take that back. I am trying to be too critical, because I think doing anything last minute um I don’t think it helps. I just—I don’t think it helps overall strategy, number one. Uh, I think it puts the witness in a terrible position. If I was a witness and wanted to be prepared for a trial, I’d want to be started 60 days or 90 days, you know, maybe before the process to get that ball rolling if I was full of anxiety or or fear or I was or I was nervous or I just wanted to be prepared to to get ready for this thing. And um for whatever reason, I I think it’s maybe—I don’t know what the reason is, because I never ask. I want to ask and say, “Why the hell are you calling me 20 days before your trial?” I’m assuming it—there’s like this harsh reality that has set in for trial counsel like, “Oh my God, this case is not going to settle. Um, I better start getting ready.” And I think it just puts everybody in a terrible spot. But um if we really want to talk about the witness here, I don’t think that puts the witness in the best spot to achieve, you know, the the ultimate goal, which is effective testimony. I don’t think it helps them emotionally at all. And uh can it be done? Yes, absolutely. I just—um, Ava, what do you—I just don’t think it’s the way to go and yeah, it keeps happening.
[04:46] Ava Yeah, I share your your rant and then some. I think, you know, it’s—it—I’m not sure who that benefits. And I think, you know, from the years that I worked in firms, you know, I like to say it’s like playing schedule chicken. You know, everyone’s just playing chicken with each other about who’s gonna—who’s gonna cave first, who’s gonna cave first. And there’s a reluctance to do the work that’s required in case the other person doesn’t cave. And I get that. Unfortunately, a lot of litigation is doing arguably quote-unquote what could be construed as unnecessary work because you get to a point where that work never reaches fulfillment, it’s not actually utilized. So, it feels unnecessary. And I get it. You only have so much time in the day. We’re all overworked. We have a lot going on. It’s hard not to want to pick and choose things and continue to play this chicken game. However, however, ultimately that never ends up benefiting us in my exper—in my experience, it just doesn’t. Right, we have to have some sort of mindset we can let go of that chicken attitude and be willing to do some of the hard work that’s required up front even if it never actually gets used.
[06:06] Bill I like the game. I like the chicken analogy. It is exactly what it is. Uh, some would call that Russian Roulette, depending on your—yeah. Now okay, so now I’m gonna say something that’s gonna get me in trouble. I’m gonna—I’m just gonna say it. I’m gonna call it out. Okay, how many times have you heard attorneys or law firms kind of, you know, their motto is, “We work every case up as if it was going to trial from day one”? How many—how many—I’m just saying, how many times have you heard it? I have heard this countless times. Typically, I’m at a conference, an attorney’s on stage giving their presentation, maybe I’m presenting, you know, before or it’s afterwards. And many, many—um, it’s kind of like saying safety is your top priority, right? It’s like all these all these companies say the same thing, they copy each other. I’ve heard so many people say, “We work up cases” or “I work up cases from day one as if they were going to trial.” Yet, yet you’re calling me 21 days before your trial date. So, um I I don’t—I think that sounds really good, kind of like this the safety language that we see all the time that comes back to haunt us. I don’t—I I don’t—I don’t think that’s—that’s true. Um, maybe some attorneys do do that, but um that—that doesn’t seem to be the case. Steve, would you like to jump in on this rant of being—
[07:37] Steve I don’t know if I want to dog pile on anymore?
[07:39] Bill Go ahead, dog—dog pile.
[07:42] Steve I think it all just goes back to just the idea of early intervention, right? Just doing things early. So, in—to—to play devil’s advocate, maybe there’s—there’s attorneys out there that are getting brought into a case late or they you know or or understanding or getting approval for it late. But I think to—to take your guys’ side too is obviously it doesn’t help us much when we get these calls because as our schedules have filled up, we just don’t have the time. I mean, we’re already working Saturdays and Sundays with witnesses to prepare for trial or prepare for depositions and stuff. There’s only so much time in the day, so make sure you call early.
[08:21] Bill We may want to uh—if I don’t think any of our listeners do family law, but the three of us maybe in divorce court if this keeps up uh with working nights and weekends uh week after week after week after week. And we love it, but yeah, and we’ll—and we’ll bend over backwards to help our clients. But so, I had—I—I had a phone call recently um with an attorney and uh he had called me and said, “Hey, you know, I have a trial coming up and I need help with witness prep.” So of course, I’m like wincing at this point because, you know, I have to ask the question. I’m like, “Okay, um when’s your trial date?” And I’m like wincing as I asked the, “When’s your trial date?” And he goes, “It’s three months away.” I go, “Okay, step number one.” But then he says, he goes, “Well, when do you want to do this witness prep?” He goes—he goes, “I want to do it close to trial. I don’t want to do it too early.” And I go, “That’s where you’re wrong.” I I don’t think there’s such thing as doing anything too early when it comes to this stuff because you, as you know guys, it’s a multiple phase process. This is not a one-day gig in most cases. And they’re going to need a couple waves, maybe even three waves of training to really be ready for trial, right? They’ve got to review their deposition, we have to go over impeachment issues, we have to go over all the exhibits that are going to be used at trial. We have to define the strategy on each angle that they’re going to be attacked on. They have to go through the core training, which is slightly different than deposition training because now we have jury psychology involved. We have to go over the difference between how you get questioned in a deposition versus—okay, now we have direct examination, then we have cross-examination. I mean, in our deposition prep, we don’t cover direct examination. It’s a brand-new topic, right? There is a lot of stuff to do. And then piled on on top of all that, we’ve got the performance phase where they’re gonna have to perform and do mock questioning, right, during direct and cross. So, getting the witness training uh and preparation process started 60 to 90 days prior to the trial, I don’t see anything wrong with that whatsoever because we’re going to do it in a step. In fact, I would argue that’s where you see the best results is getting things going two or three months ahead of time and then giving that witness homework. And if you do—and—and Ava knows this all too well—if you do find one of your witnesses is scared to death, it’s really nice to have two or three months to work through that versus two weeks to work through it. Yeah, trial’s in two weeks and your w—the witness is bouncing off the walls, right? That’s really not the position you want to be in. If they’re bouncing off the walls two months or three months before that—I mean, Ava, what do you—what—what—what do you think? If I’m gonna deal with witness emotional problems, I’d far prefer two or three months than two or three weeks.
[11:27] Ava Yeah, I mean, I think it goes to behavior change. From a data-driven, evidence-based point of view, how much time does it take to drive behavior change? Yeah, and there is—I I would love for someone please contradict me, someone out there, if there’s research I’m unaware of, right? But I am unaware of any research that says, “Oh yeah, 24 hours behavior change occurs like that.” It is simply not what we are wired to do. It takes us more time. It takes us significantly more time to adapt to—adjust neural pathways, right? That takes time. That takes processing. It is not an overnight commitment. It’s a potentially weeks or months long commitment. And devoting the time necessary that aligns with actually who we are as human beings rather than pretending that we’re something that we’re not, I think is just at its most basic, basic form just practical. Just practical, right?
[12:28] Bill Yeah, absolutely. Hey, listen, if behavior change was easy and the three of us cracked the code, we would quit these jobs. We would be over in like the diet and exercise, right, industry selling the quick fix going, “Hey, we cracked the code on behavior.” How many people start a diet, can’t stick with it? Start an exercise program, can’t stick with it? Why? It’s behavior change. Your brain doesn’t like it. So many people fail because they want the quick fix. They expect all the results immediately. The same thing goes with witness preparation and training. It takes time, it takes redundancy, and sometimes it gets worse before it gets better. And you’ve got to sustain that effort. And when you have a coach like us to help you through, um it can certainly be done and be done in a very good way. But it—but it—it certainly takes time. And uh when you put the—these types of activities two or three weeks um before a trial date um again, everybody’s bouncing off the walls. Uh, no one’s in their right mind. Not the witnesses aren’t in the right—the—the attorneys aren’t in their right minds. They’re—they’re contacting their experts to get travel set up and now you got to think about, “Okay, I need my demonstratives, I need my exhibits, I need to call the trial graphic people. Oh, I need my AV tech.” And it’s like—it may be the worst possible time ever to do the witness training in there. Whereas if you started it 60 days before or even 90 days before, even if you cut it up into Zoom and you did it in half-day sessions, then you can do your final chapter, the final stage of witness training in that last, you know, maybe week to 10 days or or two weeks where you’ve done 80, 90% of the work before that and you’re just kind of polishing off things and finishing up your final pro—product in that spot. But to try to come into that with just a couple weeks and—and—and be ready—uh, and Steve, you and I have uh worked on um—obviously we can’t talk about it, but one of our trial teams in which there’s so many moving parts trying to get—it’s just like pure chaos, right, before trial.
[14:49] Steve And actually, I just want to move into my first topic—our first topic of the From the Trenches is just trial testimony and spouses and whether or not spouses should attend the trial testimony. Ava, you haven’t heard about this yet, but I know Bill’s gonna
[15:07] Bill Okay. This is—I know that we call this we’re gonna do this quarterly, right? From the Trenches, our experiences trying to share—this is just—this is a rant. The whole thing is a rant because we’re just all going to complain about this, right? Uh, every topic is going to be a complaint. Okay, in—in—in—in my many years of experience, never have—have I had any positive experience with a spouse being anywhere near a witness near their testimony. Let’s start with deposition. “Well, you know, my spouse wants to wait in the lobby of the law firm while I—” and then she wants to talk to me, or he wants to talk to me during the breaks. No. The answer is no. No, I’m going to cover why in a second. Okay, then worst-case scenario: my spouse or extended to other family members want to come, they want to come to the courtroom and show support for me and and be, you know, uh in the audience while I testify. Steve, what’s the answer to that?
[16:20] Steve That’s a hard no.
[16:22] Bill No. The answer is no. In any time it’s ever happened, complete backfire. And let’s start out with the reason. Steve? Yeah, so go a—go ahead if you want to tell the story. Obviously don’t give any details—not even location, not even time zone, but good God what you dealt with a couple weeks ago. Holy—Ava, you’re gonna love this story.
[16:49] Ava Yeah, I’m very intrigued.
[16:51] Steve Yeah, it’s—it’s good. Um what happened is, you know, I had a witness getting ready and preparing her for—for trial testimony and going through the process and getting her ready and stuff. And then later that night having dinner with her and the husband and that. And of course the husband is trying to be supportive and he’s trying to build her up, you know, and he’s doing what the husbands are supposed to do, the spouses are supposed to do to try to pump them up of, you know, “Don’t let anybody push you around, don’t let anybody, you know, put words in your mouth” and all that stuff. And I had to kind of step in and say, “Well, but let’s—let’s make sure we follow the process. Let’s make sure we’re doing kind of what we had talked about.” And you know, so I kind of had some concerns initially going into it. Next day she goes in, gets on the stand, does well during direct. Gets to cross. Okay, here we go. Well, of course there’s a time for a break. Husband goes in there on the breaks talking to her, must have said something to her. I wasn’t a part of the conversation. Anyway, she comes back in, sure enough, she starts getting cross-examined and here we go. Here’s the pivots, here’s the fighting, here’s—yeah, here’s the—here’s the fighting back. And I’m just sitting there, “You got to be kidding me right now.” Uh so when—when there was a time for a break, of course we—we got a message to her and the husband via the attorney of basically, “Let’s stick to the plan.” So, then the husband had to basically kind of get the message politely of, “Whatever you’ve been saying, stop saying it, because it’s not helping.” Um so then he kind of removed himself and allowed her to do what she had been trained to do. She gets back up on the stand and then does great on cross-examination. And then we find out later that essentially the problem that we—we were afraid of was the husband pumping her up and and trying to tell her, “You know, you need to push back, need to have a backbone.”
[18:39] Bill Exactly. And Steve, this is what—not Steve, I’m gonna out you on something but I think it’s a really good—Steve, when you go and wa—when you—we talk about set—when you go and watch your son play baseball, where—where tell everybody geographically where you go when he’s playing? Where do you position yourself to not be a distraction?
[18:55] Steve In the outfield as far as humanly possible.
[18:59] Bill Thank you. Now my father growing up would like be against a backstop while I’m up at the plate screaming at me, right? “It’s a 3-2 pitch! Watch the slider! Watch the slide! Guard the plate! Guard the plate!” I turn around like, “Godamn it, will you shut up?” And then I look at strike three and then I’m—I’m crying and he’s yelling at me. It doesn’t help. And—and if you’re a family member or a spouse, it’s—it’s—it’s like being a bad basketball or baseball or football parent yelling at your kid during timeouts. Oh my God, it’s terrible. It adds a lot of emotion, it adds a lot of stress, right? And here’s the worst part with trial, which we didn’t talk about this, but I think this actually ended up okay. The jury ends up figuring out who they are, and then the jury starts to assess your sp—the witness’s spouses’ non-verbal behavior, emotions. So, I had what—this—this was in uh Indiana years ago where the spouse showed up and during cross-examination—right, so I have this physician on the stand. She’s fantastic. We prepared her for this very harsh cross-examination. So, the husband shows up to show support. Big dude, right? Like bigger than me—like he’s a big dude. He played college football at the University of Indiana. He’s like d-line big, Steve. Like, you know, 6-5, you know, 260. Big, big dude. And he comes in and he sits down. He looked nice, he dressed nice. That was fine. Well, during this like, you know, reptile, you know, cross-examination and this attorney is just going off on this witness—he’s huffing and puffing, his like veins are popping out of his forehead. I mean, this guy’s visibly pissed that this plaintiff attorney is going after his wife and the jury starts looking at him more than the witness because like he wants to throw—throw down with this guy. Oh God, absolutely not. Listen, if it was a criminal trial, your spouse’s ass better be there every day for a criminal trial. Yes. In a civil trial, absolutely positively not. If you want to meet them afterwards at a restaurant or at home and you want a vent and get the emotional—cuz I do believe that spousal and family support, Ava, I think you’re going to agree with this, is—is vital during the—the litigation process. And we tell witnesses, “Lean on your family, lean on your friends, right? Lean on your spouse.” They should be there to support you. We 100% agree with that. At home. Not in the courtroom for crying out loud. And I think we dodged a bullet with that one, Steve, but that could have been disastrous.
[21:59] Steve Well, I had to have a conversation—I had a conversation with him, too, that said the same thing is, “You’re going to want to get visibly upset when that—when—when she’s getting cross-examined. You’re going to have to sit there stone-faced just the same as if, you know, you were the attorney at the table or if you were corporate rep sitting at a counsel’s table.”
[22:17] Bill So we’re training the witnesses, “Okay, when the attack comes on cross-examination and they raise their voice and they’re pointing at you and they’re blaming you for the death of somebody or catastrophic injury—okay, we’ve trained you at a very advanced level to not go into fight or flight mode.” And 20 feet away, the spouse is doing what? Fight or flight. Typically fight, right? Oh my gosh. So please—
[22:46] Steve Ava, you haven’t had—you—you haven’t got to experience that yet, huh? I mean, I’ve had it in depositions too. The trial one was just pretty egregious. But have you had any exp—
[22:56] Bill Steve, “My wife to come to the dep”—I’m like, “Are you out of your effing mind?” Yeah, “Are you out of your mind?” The answer’s no. I’m sorry, the answer is no. Ava, have you been through this yet? The answer is no.
[23:16] Ava It has not come up for me at trial, and it’s only come up for me in deposition where I’ve had a few times where there’s actually been—for whatever reason, it’s—it’s a family business and there’ll be a husband and wife couple are of co-owners of the business. So I’ve—I’ve had that come up before, which I think is a slightly different situation because sometimes when they’re sort of acting like co-corporate reps or when they’re fact witnesses that the plaintiff attorney is trying to turn into a corporate rep, there can potentially be advantages to sitting into the other person’s deposition to get a sense of how the questions will be asked, the style, the theme. With that being said, I’m generally extremely cautious. Even the times where that has come up for me, I’ve been very, very cautious with that. I think it’s risky at best, right?
[24:03] Bill The spouse can never hold it together and then—like at dep—and Ava, that’s a great example. So, you have uh a family business, yeah, and then the corporate rep can attend, right? And that person’s spouse is being deposed. The wit—so so so the spouse can never keep it together non-verbally because they’re not allowed to talk. Non-verbally they can’t keep it together, and then the witness ends up focusing on the spouse rather than the questioner and rather than their objecting attorney who’s trying to communicate with them because they’re reading the spouse. It’s—this doesn’t happen a lot and that’s why we—we—I don’t think we’ve ever talked about this on the podcast, but boy, when it happens it can really go off the rails quickly.
[24:50] Steve Yeah, speaking of off the rails, Ava, I’m gonna kick it over to you for the second topic because I’m sure this has been something that you’ve experienced before. But you know, especially dealing with emotional witnesses or even first-time deponents, have—what has been your experience and kind of what is your thoughts about the idea of—when we start doing mock questions, there’s some attorneys that kind of want to go full aggressive attorney uh approach where they’re yelling, they’re screaming, they’re pounding the table at these first-time deponents? And of course, as we know, when they’re first doing their first kind of series of mock questions, they’re going to make mistakes. But now they’re making the mistakes in the face of this extremely harsh, aggressive cross-examination. What’s been your experience on that and as far as what are your thoughts on going so hard out of the gate on a first-time deponent?
[25:42] Ava Yeah, so—well, a few things about that. I mean, I’ve been having a lot of cases lately that I’ve dealt with extraordinarily sensitive and emotional materials. Deeply traumatic emotional cases. Bad stuff where—
[25:56] Bill On the bad stuff.
[25:57] Ava Yeah, bad—bad stuff, to put it mildly. And then on the other side, we have a particularly aggressive attorney, a particularly cruel attorney, who’s just—their style in general is going to be aggressive, potentially physically intimidating, certainly emotionally intimidating. They will be, you know, below the belt a little bit sometimes in their style of questions. And I think when you have that situation, I think we do our witnesses a disservice if we do not fully expose them to the wide extent of what they may actually and will most almost inevitably experience in the deposition.
And that goes back to, again, an evidence-based, data-driven perspective. The, you know, APA—the American Psychological Association—they, one of their strongest recommendations for people who have experienced trauma or have to deal with a traumatic situation, they highly, highly recommend exposure. Particularly exposure therapy, which is obviously exposing people to things in a much more nuanced, careful, thoughtful, more clinical approach. But exposure is key. The shell shock is what kills people. It’s the shell shock that destroys the witness. And I don’t feel as though it’s fair to allow them to go into the deposition and have that be the very first time they’ll experience emotionally what it’s like to be attacked in the way that they almost certainly will.
So, I—I build up to it. It’s not—I don’t want to do it right out of the gate, but I start from the very beginning. I start my witness prep by asking the attorney, “What’s the style of this plaintiff attorney? How are they going to come across?” I start to acclimate the witness from the very beginning to what they’re going to get. I ask their permission at the beginning. I get their consent. I say, “Listen, you know, I worked for plaintiff attorneys for many years. I might ask you some questions in a way that’s going to be a little bit cruel, a little bit mean. I’m not doing my job if I don’t give you a flavor. Is that okay with you? Can I do that? Do I have your consent? Is that all right?” Yeah, and I get that from the very beginning, and I start feeding that little by little and example questions throughout the actual training. So hopefully by the time we actually get to that second phase where we’re doing full-on mock questions, they know it’s coming down the pipe. That is not a surprise. I want to eliminate surprise. That’s one of the best ways to make this go down smoother.
[28:22] Bill Yeah, that—that—that’s a really good point. And so, what we call this in—in our witness training um the formal, you know, psychological term for this is systematic desensitization.
Here’s the problem: don’t forget the word “systematic.” Systematic meaning it’s a stepwise approach where you gradually increase the intensity of the negative stimulus. Steve—Steve had one where, yeah, you know, they—it went from level one to nine in six questions and, you know, people go into full meltdown. Well, what do you expect? What do you expect?
And that’s uh—I—I had one back in the day um on a—a terrible case in which um um uh a child uh had died uh at home. Uh, it was a litigate—uh, it was litigation uh related to a um a—a crib, you know, crib with the toy hanging over. And the, unfortunately, the—the young child stood up and got their neck wrapped around the—the toy which is now, you know, banned, right? This is a while ago. Um, and any toy that gets put anywhere near a crib, you know, there’s very strict criteria now because of the—the choking or strang—strangulation, you know, risk. And um so there’s police crime—there’s like, not crime scene, but incident, you know, police scene photographs of this poor kid, right?
And so, they are deposing, you know, our—you know, our people and uh our attorney, like in the first 15 minutes of the witness prep, whips out the photograph of the—that the police took of the scene of this, you know, poor dead child. And the witness just full—full psychological meltdown. Full psychological meltdown. So, remember: systematic, right? And so, if you want to get theoretical here, you know, if you look at any type of, you know, issue that’s very sensitive or somebody’s dealing with, it’s a stepwise process. And the first step, which Ava just mentioned, is let’s get some consent and communicate of here’s our plan, number one, of what we want.
And you tell them about the process. And we—and Steve and I, I know many of times, have told our witnesses, “Here’s what we’re not going to do today. We’re not going to play this terrible video. You know it exists, I know it exists, everybody—so just, you can relax now. We’re going to probably do that next week, but this—we’re not even going to touch that video. Okay, now what we are going to do is we’re gonna talk about it. We’re gonna talk about your recollections of things, um but we’re not going to show that video because you’re not ready for it yet,” right? And then you see how the talking part goes, and then the next step after that is, “Okay, we’ve stayed—we’ve taken some still shots from the video. There’s no audio, still shots from the video, and we’re going to start with this one.” And then you see how they respond, right?
So, you can adjust the intensity of the stimulus based on their response. Some witnesses will go very slow during this process because they need more time to become desensitized to the negative and very sensitive stimulus. Other witnesses—and I know you’ve both—other witnesses, for whatever reason how they’re wired, they’re like, “Nope, show me the video. I’m good. Like, I know I’m good, I’m good.” You’re like, “Are you sure?” And I still, like—I don’t quite know if I trust this. And I’ll play a little bit of the video and I’ll stop it—”Are you sure?” They’re like, “No, I’m good.” And those witnesses, again, for whatever reason, you know, their—their mental wiring um can be stronger and you can go a little faster with them. So, I think it’s really important that it’s got to be a stepwise process and you—you really have to not treat all witnesses the same because everybody’s going to respond to these things very differently based on how they’re wired.
[32:35] Steve Exactly. And I wanna—I wanna—my third one that I have, and if you guys have any other, I’ll kick it to you guys.
[32:44] Bill I have one and it’s a nuclear bomb.
[32:46] Steve Oh, well then let’s—we’ll hold off on your nuclear bomb until I get through this one. Then maybe—
[32:48] Bill maybe you’re gonna bring it up right now?
[32:50] Steve No. This one actually is about uh one thing we’ve talked before on the podcast: it’s about Spanish or inter—using interpreters. Um, meaning that when interpreters get used and how you portray that to your witnesses.
Here’s what I’m talking about is let’s say, for example, you have a witness who is Spanish speaking, speaks some English, but they’re using an interpreter for their deposition. And then when they’re getting asked a question in English by opposing counsel, they start to formulate their answer before the interpreter is even done interpreting the question. So now they’re—they’re starting to answer already. Um, and then of course opposing counsel goes, “Wait a second, I didn’t think you understood English. You brought us here under the pretenses that you need an interpreter, and now here you are answering questions in English. So, you must know English.” And now you spend 15 minutes arguing about whether or not you do know the English language well enough to actually, you know, give a deposition, or whether you’re trying to lie or whether you’re trying to pull one over on opposing counsel. And then it just becomes an issue which then, of course, they put in front of jurors to try to say, “See, they’re trying to deceive you.” Um, but Bill, I’m gonna start with you. I see like you had a—it seemed like you had a very physical reaction to—to this.
[34:06] Bill Well, it’s just—I—I’ve had several witnesses that can clearly speak English, but English is their second language, right? That they want an interpreter there to like cover themselves, like, just in case. And it—I don’t know, it just—I think it looks really bad, right? Now, we’ve had people like really, really need interpreters, but then it’s like I’ve seen the witness—”Oh no, I want an interpreter”—but like they say that to me in English. I’m like, “Well wait a second, like, you didn’t have an interpreter during this event, number one.” And then number two—”Well, just to be safe.”
And um they—I think they—they—they fear—and whether—and some of it’s I would say is logical, some of it’s illogical—that, um, you know, “I don’t want to misinterpret something during the dep.” Okay, I get that. But if you can speak really fluid English and you can read it and you can write it and you’re just using it like as a safety net or—I just—I don’t think that gets you very far. I think it looks terrible. Um, and then at trial, I think that’s another thing because I—I just think it looks bad. I think it hurts your credibility if you really don’t need one yet you want one just in case. It’s—it’s a—it’s a tricky—it’s a very, very tricky topic.
[35:28] Steve Yeah, Ava, what—what do you think? What’s been your experience as far as interpreters going—like I said, the big—the biggest thing I bring up is where you do that delicate balance of if you know it, maybe it’s 50% that you understand, but you understand enough to then start formulating response which then exposes you to what Bill was just saying?
[35:48] Ava Yeah, I think, you know, I agree with Bill in the sense that there certainly could be a perception credibility problem. And with that being said, you know, I—I—English is my first language, Spanish is my second language, Italian is my third language. And having learned several other languages in addition to the first and having dealt with a lot of interpretation, both given and received, you know, it’s a very complicated thing, language. And I think that there’s such cognitive effort required as is in the deposition that sometimes the additional cognitive load of—because what—what’s often happening if you don’t speak two languages perfectly at the same level of fluency, what often is happening is there’s an automatic translation that’s taking place in your own brain before you are opening your mouth.
So, you are hearing something, you are mentally translating it into your native language, you’re considering it, then you’re thinking of your response in your native language, then you’re translating that into the language you need to speak, then you’re opening your mouth and speaking it. And it’s a process that can be—in doing that, you can often lose a lot of nu—nuance and detail, just inevitably because there’s so many steps. So, I think it really depends on the witness. I mean, I deal with witnesses a lot who require interpreters and often, especially Spanish speakers where they speak a lot of English, they’ve been in this country for a long time, right? There’s a lot of overlap. It—it gets complex because I understand the need to want to only have to concentrate on your native tongue and not have to go through those multiple steps that is required cognitively to translate both what you hear and what you’re going to say back.
I understand taking away that burden might enable you to engage with the deposition a little bit better. And when you have people who speak English almost perfectly, the perception problem, the—the credibility is—is understandable. So, I think it’s working with the witness to either really ascertain for yourself and assess their full confidence in—in—in continuing in English. If they really require that interpreter, I do think that their—that language comfort is going to potentially be a key thing that if we can give that to our witness, that might help their overall behavior and ability during the deposition—that taking that away might hurt us more than help us. But I don’t think there’s a black and white answer to that. I think it really depends on your specific witness, their comfort level, their language fluency, all of those things. Because an interpreter absolutely adds another little burden and wrinkle into all of this. It’s an extra step that, you know, yeah, can influence.
[38:37] Bill Yeah. And what—what if you have a [__] interpreter? What if you have—an—what if you’re in trial and what do you—you have an interpreter—interpreter with with [__] facial expression, doesn’t dress well, doesn’t—has a—a problem with their tone? Well, that’s not your witness’s fault, is it? Well, they’re an extension of the witness. It’s—it’s extraord—I would rather the witness say, “Can you repeat that question?” or “I don’t understand your question,” or “Can you rephrase that question just to make sure I understand,” 35 times. I’d rather the witness do that because they’ll maintain their credibility versus you go through an interpreter. Oh, it’s so much risk. So, I—I would say only if absolutely necessary.
[39:21] Steve And once again, if—if absolutely necessary, make sure the witness lets the interpreter finish the interpretation before they start to respond uh and then give the response rather than jumping in and giving off the idea that you actually knew what was being said. All right, Bill, the stage is yours to drop this nuclear bomb. I’m kind of scared of whatever you’re gonna say because usually when you say something nuclear—
[39:46] Bill I am going to drop this nuclear bomb in a second, but um my behavioral reaction there that you just commented on was not because of your question, it’s because of a text message I just got. You can’t make this up. And I’d love—I’d love two psychological perspectives from experts on how to deal with this. Um, so I just got a text message that a former client—let’s just say in the Chicago, greater Chicago area. Uh, this is a client that I worked with for about a decade uh because I lived up there and um they were a pretty frugal client. Um, but I did—I’m talking I have worked on well over 200 cases uh usually—usually preparing witnesses for both deposition and trial. When I moved to Florida 10 years ago, uh, I was very disappointed when they said, um, “We don’t want to pay um you know, we don’t want to pay your airfare and hotel to come up here uh because you were—you know, you were so local you could just drive over.” And uh uh you know, “And and now we’re not willing to do that. We’re going to go with somebody else that’s local.” This is after 200 cases in 10 years. I’m like, “You’re not going to pay Southwest or Hilton Garden Inn?” They’re like, “No.”
What ended up happening was uh they still used me a handful of times a year, but it’s really—it’s just very, very rare. Well, they just got hit with a—uh, let’s call it a catastrophic verdict. So, we don’t get sued by Bob Tyson. Um, they got hit with a catastrophic verdict this afternoon. Now, in this particular county, the highest verdict ever was 11 million dollars in the history of the county, and they just got lit up for 25 million. I don’t know how to feel about this. I don’t—I mean, I never want to see anybody get whacked like that. Uh, at the same time, it makes me kind of say, “You know, we did this 200 times, you never got whacked.” Uh, I don’t know. Um, it’s just—I’ll get the full story behind it, but um—
[41:53] Steve Probably angry jurors.
[41:54] Bill Garbage in, garbage—yeah, it was angry. That’s—it was probably the angry jurors. We have to do another podcast on that, Steve, by the way, uh because yeah, our—our angry juror paper’s out. Um, but I’m gonna drop this nuclear bomb on you and this—um, I have already gone through my complete temper tantrum. Um, I think Steve may have—I’m gonna put Steve in the full meltdown uh mode here. Um, and now Steve knows where I’m going. Steve, we won’t mention specifics. Um, when um yeah, you put so much work into these cases, and then when you’re in the middle of a—a trial, you’re exhausted. You—and we work on—we work—we work on many different sizes of cases, um but we also work on really, really big cases. Not just big exposure, but just very complicated cases. Multiple attorneys, multiple war rooms at the hotel down the street from the courthouse. Um, and you work day and night prepping, you know, 5, 10, sometimes 15 witnesses to testify. You know, you’re missing your kids’ birthday party because you have to be someplace else because this trial is so big and everything is going well.
And then, Steve, it just—it just takes one expert witness to completely not show up. [__] the bed. Whatever phrase you want to use. Pee down their leg. That—and you don’t—listen, experts are different. Um, you know, we talk—I just gave the, you know, nuclear verdict, nuclear settlement speech uh yesterday uh or the day before—I’m sorry—in Los Angeles. And we were talking about, you know, things you can’t control at trial. Well, you can’t control your judge. The judges, you know—the judge strikes all your motions and, you know, overrules every objection. You can’t control that. It is what it is, right? Um, and you may get a set—a—a bad jury panel that day. A bunch, you know—a bunch of people show up that are unfavorable. And it’s just statistical odds just weren’t in your favor that day. Well, you can’t control—you can’t control that, right?
What can you control? Well, you can control your jury selection, your voir dire, what you’re going to ask these jurors. You can control what you put in your opening statement. You can control your strategy. You can prep and train your—your fact witnesses. There’s a lot that you can control. Experts are experts. They’re going to do their thing. They’re have their opinions and they’re professional witnesses. Their job’s to perform. And you don’t have nearly as much control over them as say a fact witness. Um, Steve, I’m just going to let you—again, we’re not going to say anything specific—but I just—it’s just like my heart got ripped out of my chest.
My heart got ripped out of my chest and I was hoping it was a joke when I got the message. And so was Steve, but I tell you what, I have—I had not been that deflated professionally in 10, 15 years. Like, what?
[45:28] Steve Yeah. And Ava, on this—I mean, at its crux—I’m not going to go into too much detail—but case was moving along really, really well and—
[45:39] Bill Going great. A tough case, tough case.
[45:41] Steve Last—last witness of our case. Expert witness who was supposed to help with a mic drop.
[45:49] Bill Bottom of the ninth. Yeah, bottom of the ninth. We’re calling in our closer. Our expert went to the bullpen, brought in the closer to finish the game.
[45:56] Steve It’s like peak Mariano Rivera time, right? Like enter sandman.
[46:01] Bill Enter sandman. Like this is supposed to finish strong.
[46:05] Steve Now, you know, it’s—this is actually really traumatizing me now because when I think back to this, it’s like uh Mariano Rivera, uh, Arizona Diamondbacks where—
[46:16] Bill Diamondbacks up hit to lose.
It’s a—but it sounded like this individual gave off a—a walk-off grand—did a Mitch Williams 1993, 93. Did a Mitch Williams for the Phillies. Came in and Joe Carter walk—I think the only walk-off home run in Major League Baseball history, Steve. Joe Carter at the end of the—oh right, Blue Jays, Philadelphia. 1993 World Series, look it up. Gave up the walk-off home run to Joe Carter to end the World Series. And I—I kind of—I kind of felt like that. I was angry. My—let’s talk about—talk about witness emotion. I—I’ve been—I was a complete lunatic for like a solid four days.
[47:04] Steve Yeah, Bill had to talk—talk me off the ledge. Don’t want to talk about—so Ava, just like I said, once again, perfect going in—not—not perfect, but going in very strong, very good. Everything running smoothly. Here comes your mic drop and uh your expert witness [__} the bed. Um, the bed. Yeah. And then put you in a—a much more difficult position when, you know, you—you trust your expert, the hired person, to—to do their—to do what they were hired to do. And then—
[47:35] Bill They got one job. They got one job. And again, they’re—yeah, you hire them, you know you can work with them, but they’re—they—they’ve got to perform. They’ve got to get their message across to the jury.
Talk about fumbling on the goal line. Ernest Byner.
[47:55] Steve Yeah, I think it just goes back to the fact that, you know, when—when you’re prepping, even if you’re prepping experts, they—they—they need—they need to be prepared too, right? Just because they’re experts and they’ve testified multiple times. Ava, how many times have you seen when you worked with experts or talked with experts that they—they’ve been deposed so many times or they testified to trial so many times, but yet their quality of testimony and their ability to actually give coherent responses is not all that good? So just because they’ve done it a lot doesn’t necessarily make them good at what they’re doing.
[48:28] Ava Yeah, 100%. Your qualification does not necessarily equal skill. It’s just—they don’t always align. Harsh fact of life. True. Well that’s disappointing.
[48:41] Bill Yeah, it’s—it’s really disappointing. And again, we’re gonna keep this extraordinarily vague uh to not reveal what. But this is an area of litigation that’s not very common, so there’s not a lot of experts out there. So, it’s slim, you know. On a—on a med-mal case, I mean, go—I mean, you could throw a rock and hit an expert in a med-mal case or construction case. Yeah, this is not—this is a very unique area of litigation, so there’s only a handful of experts out there. So, it’s kind of slim picking and you don’t have a—a big pool of people to choose from.
[49:09] Steve Well, the problem is too is if you’re that expert—this goes to any experts that are listening, too, right?—you pull a move like that. Bill, I don’t know how much more this expert might get used um by—by set attorneys or any other who are in this area. They—even though it’s so small, that might be a black mark on that expert going forward once word gets out of this epic meltdown.
[49:31] Bill Um yeah. And to make matters worse, we had three experts. The first two hit grand slams—like, out of the park. Had jury—the jury on the edge of their seat going, “Uhhuh, uhhuh. Oh wow, wow.” I mean, grand slam home runs. So, um, you know, we don’t know what the overall impact of this is going to be yet, but, um, you know, we’ll see how much weight the—our first two experts that did really, really well.
But you know, again, all—so the moral of the story, folks—um because they’re not—there’s just a lot of attorneys don’t go to trial a lot anymore, you know. Um, we assist in trial a lot. And one thing everybody knows, but I don’t think really it gets emphasized um as much uh—and Steve and I—you and I have learned a lot about this the last few months in this particular trial. Um trials are um risky. They’re extraordinarily risky. They’re not very predictable. You have to move on the fly because you don’t know what your adversary is going to do.
And then to make matters 10 times worse on this particular case, there’s multiple parties in this case and you got a lot of finger-pointing between parties. And so not only are you worried about getting shot in the chest, you’re worried about getting shot in the back. And um it’s re—it’s really a complicated and extraordinary—extraordinary situation. So trial is very stressful, it’s very risky. Um and yet you can do your best, but boy, things are not going to always go as planned. And yeah, you’re going to have some good days, yeah, you’re going to have some [__] days, and and yeah, you’re going to have some devastating days too. It’s um trial’s not healthy. I know that. I know that for a fact. Trial is not a healthy experience for anybody—any of the attorneys. Plaintiff attorney, defense attorney—no one sleeps. No, it’s just—it’s—it’s just such a um it’s—it’s—it’s very, very difficult.
[51:44] Steve Yeah, but never get too high or never get too low, right? And I guess the other thing too is create a game plan and follow the game plan anytime—anytime—anytime you’re deviating from the game plan, that’s the type of things like this happens.
[51:58] Bill So—well, and the problem is, is not—we always like we’re working with witnesses on amygdala hijack going, “Don’t bail from the plan,” you know? But you know, your attorney, right? Somebody on your team can go amygdala hijack and bail the plan and go someplace they’re not supposed to go. Say, with you know, cross-examining a witness or something like that, right? Yeah. Um hey—
Oh right. The big joke that we have is, “Hey OJ, here, try on the glove.” Yeah, what’s the worst—what’s the worst that could happen? And you’re like, “Seriously? Really? You—you just did that?” Like, what were—what were you thinking? Stick—there’s a plan, stick to the plan. But you know, you get emotions involved—involved. It’s um it’s very difficult to adhere to a plan with for a witness. But I—I think even as an attorney it’s—it’s very difficult to stick to the plan if you become emotional. Uh, trial attorneys. And it’s easy to become emotional and then you—you do something you shouldn’t do or you ask that question you never should have asked that wasn’t on your script, right? And then you get that kaboom answer where you have your OJ trying on the glove moment. Bad, bad, bad, bad, bad. Stick to the game plan. I think we should stick to the game plan. We can end there. Oh now I’ve got a freaking headache. Jesus Christ.
[53:21] Steve All right, Ava. I’m gonna divert from the game plan. I’m gonna let you uh send us out on this podcast.
[53:28] Bill Please end this—end my pain.
[53:31] Ava All right, well I have—and we—we’ll end on a positive note. I want to add one teeny tiny little positive thing that I’ve seen lately, especially in the past few weeks. I’ve been so gratified to see how the defense bar in particular that I’ve seen in these projects and witnesses, how there has been such um an—a—a—a stronger trend towards mentorship, cooperation, willingness to engage and involve younger attorneys. I just came back from a project where they brought a younger—an attorney who has—had been there for a week. It was his first week on the job and he gets to go witness the focus group. It was so cool to see it through his eyes and how excited he was by the whole process. But I’ve just been seeing a lot about that lately and it’s personally and professionally just gratifying to me. That’s been a positive for me this past Q2. For sure.
[54:26] Bill Ava saves the day. See, I about sunk this entire ship. This is—and—and you—but I totally agree. I have seen that too. I’ve also—like you can see it, you can feel it. I think particularly on the defense side um I see a lot of effort and concern towards uh um young attorney development and mentorship, which is something we’ve been screaming at the top of our lungs for years, but I’m really, really seeing that. And the more that happens uh the better. So, I’m glad that you’ve experienced that, Ava. I know Steve and I have seen it too. Um, that’s a big, big deal in any industry, not just legal—any industry. But particularly I think with uh with attorneys seeing that is a really, really good thing and uh I hope that that continues.
[55:13] Steve Yeah, we’ve had a lot of good conversations, the three of us, right, with—with defense attorneys and other organizations that are starting to get this and then starting to align with one another where you have one attorney contacting another who’s reaching out to another and then bringing everybody together to try to start sharing information. So that’s a great point, Ava. Yeah.
All right, I’m going to send this off here. Make sure you go to courtroomsciences.com. All of our blogs, podcasts, papers are up there. Bill’s solo podcast, Ava’s solo—solo podcast, the three of us—check us out on that on the website. One of the big things too, I know we haven’t touched on enough: like, subscribe, all that on YouTube. Leave us a review—five-star review, one-star review for Bill’s rants, whatever you want us. Make sure we do that too to help kind of grow our fan base. Uh appreciate all the listeners who have given us all the great feedback and those of us who join us every week on the podcast. So, we will see you on another edition of the litigation psychology podcast brought to you by Courtroom Sciences.
Be confident in achieving superior litigation outcomes. CSI has the expertise, track record, and capabilities to help you win.
