Bill Kanasky, Jr., Ph.D. talks about the critical importance of preparation for litigation, and particularly early preparation. Bill discusses the risks for the defense by not being prepared and the costs for not being prepared. Bill talks about steps to take before litigation even strikes:
1. Education: Identify people who will be involved in litigation and/or likely to get deposed in a future lawsuit and educate them on the litigation process and start to train them as witnesses in advance;
2. Review and edit all documentation: Policies & procedures; training manuals; employee handbooks; websites – the language in these materials often set an idealistic standard that opposing counsel will use against the corporation; review, edit, and update immediately. Communication and enforcement of the policies and procedures is key;
3. Review and revise hiring practices – Revisit your hiring practices to feel confident about your hiring protocols; hire an attorney to review your policies and procedures and hiring practices to identify your vulnerabilities;
4. Create a litigation crisis plan – Develop a plan and communicate it to all the key personnel; be sure everyone understands what to do and what not to do when there is an incident.
Full Episode Transcript
[00:15] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky, your fearless leader, coming right at you. Wow, what a week. Another West Coast trip was in Tucson, Arizona. Was 107 degrees. Wow, gorgeous place though. Geez, the terrain and landscape is just absolutely tremendous. But I was up there for a conference, gave a speech, and something came up in the speech that I want to cover with you all today is the whole concept of preparation. Right, let’s, let’s call this episode “Preparing for the Storm.”
Now hurricane season, uh, depending on where your geographical location is in the United States—I’m in the Southeast now—that’s a big deal. And you see on the news, um, the damage that these things can do. And my family and I, um, have a solid preparation plan, and we have our supplies and we all have a role. We know what to do and we go through a lot of “what ifs.” What if the power goes out? What if we run out of water? How are we going to handle this? How are we going to handle that? And we, we do this in the spring. We do this in March. Hurricane season starts June 1st. So, if and when the big storm comes, we are ready to go. Everybody knows what to do, we have our supplies, we have our plan, and we’re good to go.
[02:08] Bill Now in litigation, oftentimes what the problem is is that the storm hits and then everybody goes to Costco and Walmart and Home Depot and Ace after the storm’s already hit. And if you know anything about that situation—if you’ve ever got to the grocery store or Costco right, right after the storm hit—it’s a, it’s a zoo. It’s complete chaos. It’s a disaster, and that plan tends not to end well. Okay, why? It’s pure chaos. It’s a lot of emotion, it’s a lot of worry, it’s a lot of stress. Okay, and so what I’ve have seen in my career is that many defendants, when the storm comes, they’re, they’re not ready. They’re not ready, and it makes life a lot worse for them.
Now, if you’re a plaintiff attorney and you’re suing a company that really isn’t prepared for the storm, you know, it’s a heck of a lot easier to get what you want. Whereas if you’re suing a defendant and that defendant’s ready for the storm, okay, different story. So how do you become more ready for the storm? And this is tricky because a lot of, you know, I, there’s a lot of defense attorneys that listen to this podcast. Uh, there’s plenty of plaintiff attorneys that listen to this podcast. Hello, plaintiff attorneys, that’s fine, I’m okay with that. Um, and there’s a lot of insurance claims people, there’s people in various industries that listen.
[03:59] Bill But one of the key things I see when I come on a case is a defendant that they did not have their ducks in a row prior to litigation, and then all that’s going to be very costly as discovery plays out. So, what do I, what do I mean by this? Um, well, there’s a couple different areas that I see that, um, if the, if the defendant was more prepared upfront—just like if you’re prepared for a hurricane—uh, the statistical odds of a more favorable outcome are much, much higher. Let’s go over these actually. I’m gonna take a drink out of my—the Dvorak Law Firm, Omaha, Nebraska, got me a beautiful Yeti. Thank you, Dvorak. Uh, good law firm by the way, and they always invite me to the College World Series in Omaha. Great people.
All right, so let’s, let’s talk about what like, so what can be done before the storm, right? Before. Now this is very proactive thinking, meaning doing things as a company before the lawsuit’s even filed. So, when something bad happens, your state of readiness is much, much better. Okay, now again, if you’re a defense attorney listening to this right now, you don’t have much control over this. Now your only option would be to tell your clients, “Hey, do some of these things.” Right?
[05:48] Bill If you’re an insurance claims person, getting this message out to your insurance would be critical. Okay, working with a lot of insurance companies right now, working with them to get like checklists. Right, you know, like the hurricane checklist? Right, the hurricane prep checklist? And all the stores around here, they, they give them out for free. They have every county has it on their website. Here’s what you need to do, hurricane season’s coming. No reason why defendants, companies, cannot do the very same thing to again increase their state of readiness.
And what’s the first thing, uh, to do? Number one: uh, education. Okay, so what I mean by education is that many defendants—not all of them, because some defendants get sued constantly. Right, you got like a big hospital system right, um, or, or, or other corporation, they’re, they get sued, they’re kind of litigation savvy. Well, not every company’s like that, right? But even if a company is litigation savvy, some of the people within the company are not. And so, the first thing to do is, is, is education.
[07:04] Bill When I come in on a case and we start preparing witnesses for deposition, most of these witnesses have no earthly idea what they’re getting into. Okay, and so like, we are starting from scratch. They’re coming in and they’re, they’re scared. Um, they have a lot of illogical thoughts. They don’t really know anything about legal issues or, um, or depositions, the litigation process, litigation timeline. And they’re coming in very, very green and that can lead to trouble in deposition.
So, one thing, uh, that we have been doing, uh, we have been contacted by several companies and several insurance companies to work with their insured is to educate defendants before lawsuits on the process. Okay, and who are you educating? You’re educating the people that are going to be likely key deponents, right? Managers, uh, uh, safety directors, uh, HR, head of HR. Okay, people that you know that hey, if something bad happens, these, these people are going to get deposed. Right? Um, who’s most likely going to be a corporate rep or a PMK or a PMQ? Right, this is predictable if something bad’s going to happen.
[08:26] Bill And so one of the things that can be done is to again, before any lawsuits filed, is to, and doing this on a regular basis. Just like you would get as an attorney, you’d get CLE credit every year, right? Or if you’re in a certain industry and you get various, you know, safety training, or if you’re, uh, in corporate America, you get IT, right? Cybersecurity training. Why not get litigation training? Again, couple hours a year to teach people that are going to be on the defense eventually, right? In a litigation scenario, what the process is like, who’s who. Okay, educate them: what is a deposition? Doing all this way before the lawsuit.
Now to take this a step even further, we’ve been working with corporations and again insurance companies that, uh, insure various corporations and various industries to come in and do seminars to get these folks that I just mentioned get them educated, get them educated. Massive success with this. Okay, so when something bad happens, everybody’s not freaking out, right?
[09:48] Bill So when I look at the radar and I see that storm coming, I’m not freaking out. Why? My family and I have a plan, we’re all educated, we have our supplies, we did this in March. We’re ready. There’s no hair on fire, there’s no bouncing off the walls. Defendants can do the same thing prior to any litigation. Okay, and it’s especially true why this should be an ongoing process, perhaps annually, is that there’s turnover in companies. You get new people coming in, right? People retire, people quit, new people come in. Everybody needs this knowledge because when it comes down to the deposition process, if you have very, very green witnesses that have zero exposure to litigation, the odds that they’re going to do well at deposition are not very high. They can, but the odds, they’re not very high.
So, identifying the key people again—potential corporate reps, PMK, PMQ, anybody in management. Okay, key people you know if something bad happens and there’s a lawsuit, it’s high likelihood these people are going to have to go through the deposition process. And as you know, as I’ve been screaming from the top of my lungs from the top of this mountain, is that deposition performance is a key indicator of how this lawsuit is going to proceed.
[11:27] Bill When defense witnesses are highly effective at deposition, cases go away. They get settled, and they get settled for reasonable amounts. When the depositions suck, now we’ve got, we’ve got trouble. We’ve got strategic trouble, we have financial trouble, economic trouble because now this case, this is going to turn into a nuclear settlement, and the value of the case is going to be increased because your witnesses suck.
Okay, so step one: right, identify these key people, educate them on the process, and then to take it one step further, start to train them as witnesses. Okay, okay, you can get the first couple chapters of witness training down well before a case starts. Okay, you can bring up a fictional case, a hypothetical case, a case that you’ve had in the past, and you can dissect it for these employees and teach them how the other side’s going to attack various issues. Show them videotapes, okay, of deposition testimony and break it down like game film.
[12:39] Bill I do—it’s like football. I’m like a football coach when I work with witnesses. And again, I can work with the witness today with no lawsuit that maybe they’re going to be a potential witness down the road and start to educate them via video on how cross-examiners do their thing, the various attack lines. Okay, where witnesses screw up. And I can hit pause and say, “See what happened there? This witness never understood that question.” Hit pause: “See right here? This witness is going fight or flight because they’re being threatened by the questioner.” Oh, hit pause: “See here? The witness is talking way too much and volunteering a lot of information that was never asked for.” Right? We can do this now.
Okay, now, now when a lawsuit is filed and they have to be deposed, yeah, a lot more work has to be done on the witness preparation front. However, if they come into the process with batteries included—remember that when you were young? Remember that you were—god, I used to love Christmas. Now I hate Christmas. Christmas is like the worst holiday around. I’ve, I’ve, I’ve boy—completely boycotted Christmas. Can’t stand it. But when I was young, I loved it like most kids.
[13:55] Bill And I remember you’d open up that toy, right? You’d open up, you’d rip over, you’d rip open the package. You got that toy you’ve been dreaming about for the last 6 months. Santa came, Santa delivered. And you open it up and you get it out of the box—when I was younger it was Star Wars, right? The Star Wars stuff. Oh man, whatever kid on the block had the best Star Wars stuff like, you were the man. You were the man. And you open up this thing you’re like, “Oh my God, oh my God, I got it! I’m gonna be the most popular kid in the third grade.” And then you go to play with it and it, you look at the back and it says, “two C batteries needed” or “two D batteries” or “two double A batteries.” And you look at Mom and you’re like, “Batteries?” You look at dad you’re like, “Batteries?” And they’re like, “Oh.”
And now, you know, it’s 8:15 a.m. and you went from complete joy, just utter joy in your life, to holding a toy you can’t use ’cause it’s got no goddamn batteries. And there’s no stores open, at least, well, in 1983 when I was doing this. 1980s early, stores weren’t open on Christmas. See now, see poor parents now, now it’s like, “Nope, I’ll go, I’ll go run the CVS because it’s open on Christmas.” Right? But man, when you don’t have the batteries included, it doesn’t work out very well. Right?
[15:32] Bill So imagine if your potential witnesses, likely witnesses, if they come into the litigation process with batteries included. Yeah, oh yeah, makes, makes life a lot easier. No batteries? Lot of frustration. Okay, so that’s kind of number one of what we can do is, uh, working with these people and then continuing education. Okay, even doing some mock questioning with them. You know what they’re going to be asked. You don’t need case specifics to do a mock deposition. Get them in the process, let them know how it feels. Yeah, it sucks, and give them a taste of that. Okay, because then when the real thing comes along, that training is going to stick and they’ll be much easier to work with, and you’ll be far more effective in your preparation.
All right, number two, and boy is this a, that’s a bad one. Your clients. Right, so defendants, there’s three areas where plaintiff attorneys go and just mop the floor with you guys. It’s easy money, low-hanging fruit: policies and procedures, the language in those training manuals, the language in those, and the horrendous language on your, on the company website. Easy money. All, all of that can be fixed this afternoon.
[17:04] Bill Oh my God, I work on these cases, I’m like, “Yeah, send me the documents,” whatever. And they send me like the training manual, and I read it and I’m going, “Oh my God, what in the world were they thinking when they wrote that?” They look at the policies and procedures, I’m like, “Holy, whoever wrote this should be fired.” Then I get on their website and I’m like, “Oh God: ‘We ensure safety for our employees and the general public.'” Jesus Christ. The horrible, horrible language. And plaintiff attorney is like, “Yes, print screen, print screen, print.”
And all that’s gonna be, all this stuff’s going to be used at dep. This is what your policy says, this is what your training manual says. In fact, this is what you’re telling the general public on your website, and you’re not even following your own parameters and rules because all of that language is unrealistic, idealistic, and over the top, and it all gets used against you.
[18:16] Bill Now here’s the problem: when these documents and the website language, when this stuff’s being written, right? When it’s being generated, no one’s thinking about litigation. And that’s the problem. The people in the marketing department or the people in HR are not calling the corporate attorney or risk management going, “Hey, can you take a look at this? Here’s our mission statement. Can you take a look at this before we plaster it all over the website saying how safety is our number one priority come hell or high water?” Nope, not happening.
So, all that language gets used against you. That like, like this area alone is responsible for a gazillion dollars a year in exposure. Change it now. It’s funny, when, so when I gave my speech, when I gave my speech, uh, a couple days ago in Tucson, it’s like you everybody starts getting on their laptops and phones looking at their laptop—I’m sorry, looking at their websites. Okay, there’s some bad stuff on websites. Again, no one means any harm by the language used on the website, but boy, you know, “All accidents are preventable,” and “Here at ABC Trucking Company, we will ensure…” It’s like, oh my God, what in the world were you thinking?
[19:42] Bill That’s a lot of feel-good language. A lot of feel-good language. Terrible language because number one: it’s not true. It’s not true. You cannot ensure safety to the general public. You can’t. And saying that you’re going to is ridiculous. Okay, but boy, it sounds good. Okay, we need some, uh, radical, and I mean radical, honesty when it comes to language and these policies, procedures, on the websites, the training manuals.
We had a client that came to us. Their policies—is a, it was a transportation company—they had like a 124 pages in their policy. They cut it down to 25 in about a month. Very, very smart. It’s, it’s not necessary. Okay, number one. Number two: now this is the pushback I get. “Well, if we take all that stuff out, what do we, aren’t we gonna look bad? Like, so if we’re, how come you don’t have all this safety language in your policies and procedures and your training manual? Like, we’re going to look like we don’t even care about safety.”
[20:56] Bill Wrong. Because where it’s all at, and I can prove this at the jury level, it’s going to be the communication and enforcement of these ideas. Let me repeat that: it’s going to be the communication and the enforcement of your policies, procedures, training parameters. That’s what jurors care about. And how does that happen? Meetings. May have safety meetings, employee meetings, staff meetings, department meetings. What are you going over? It’s the communication of these principles that the jury wants to see.
I can’t tell you how many times we’ve done focus groups, mock trials, where the company policies were, you know, really well-written, and, and the, the jury said, “We don’t care because you’re not in, you’re not communicating.” You know, no one, by the way, no one reads the policy. No one reads the—I mean how many times you read your own policy? Probably the day you got hired, you haven’t looked at it since. Okay, nobody reads this. Okay, so the communication and enforcement of these principles is the key, not what’s written in some document that you look at the day you get hired and never look at again.
[22:12] Bill Juries understand that. Why? They all have jobs and they all sign the same docs. They all, they all have, all these jurors have policies and procedures and training manuals. They don’t read them either. They know, they know. And so, your ability as a defendant to show how you communicate these principles is the key. So there, there’s another thing you can do is make sure as a defendant your meetings and what you’re covering and how you document those meanings, make sure you’re Johnny on the spot with that because that’s what’s going to really make the most difference at the jury level. Okay, but God, go through these websites, go through—I mean you can change all that stuff now. It’s really, really terrible unfavorable language. Terrible language.
[23:09] Bill Okay, third area: hiring practices. Again, you know, no one wants a lawsuit, but oftentimes the hiring practices, okay, are highly criticized. Okay, you’re hiring clowns. You’re hiring, you’re hiring clowns to drive 80,000-pound trucks down the interstate. That’s, that’s a problem. Okay, you’re hiring clowns to perform medical procedures. That’s a problem. Okay, and so what are your—right, so again, this is for the, the corporate defendant. You know, what can you do now? Well, revisit those hiring policies. You know, can they be more stringent? Are you doing background checks on people? They basic background checks, or they in-depth, right? I mean what’s your, what’s your stance on hiring people with a criminal background? Right? Or if they’ve been in a substance abuse program? What’s your stance on that? Okay, um, these—that process can be highly criticized, uh, by a plaintiff attorney and by a jury.
[24:29] Bill So again, something to prepare for the storm. Look at this stuff. It’s almost like if you’re, if you’re a corporate defendant—and again, whether you’re a small company or, or, or a large company—you really want to look, again, it’s, it’s kind of like cybersecurity would be a good example is you want to look at where your own vulnerabilities are at. Okay, so I told everybody at this speech, I told everybody right now, hire an attorney to look over your stuff and have them shred it. Hire a really good attorney and say, “Hey, pretend that you’re a plaintiff attorney. Look at my policies, look at my, look at my training manuals, look at our website and just shred it.” Just like you’d hire an IT expert to say, “Look at our email system, look at our website, tell me where we’re weak,” because we can’t see it. It’s very, very difficult to see your own vulnerabilities. Not just as a company, but as human beings. Right?
[25:43] Bill Okay, hire an attorney to look at your [__] and then they’re going to tell you where you’re vulnerable, and then make the change before lawsuits even happen. Right? Okay, important stuff. Then finally, having a litigation crisis plan. You got to have a plan. Again, it’s like the hurricane plan is, okay, if something bad happens and we get sued, what are we going to do? What are we going to do?
Now, most corporations have a plan. For example, if there is a natural disaster, there’s a plan and like once a year they go over that plan with employees. If there’s a fire, there’s, there’s escape routes, there’s plans, you do fire drills, right? Nobody does this for litigation. Why not? There should be a litigation crisis plan. So, something bad happens, everybody knows what to do. No one’s gonna panic. No one’s gonna be sending ridiculous text messages and emails.
[26:47] Bill Holy, I just had a case. It’s like after the—okay, so there’s a, there’s a very, very bad accident that resulted in multiple deaths, and the emails and text messages over the next 24 hours were devastatingly bad to the defense. Why? No crisis plan. No crisis plan. Gotta be a plan. Something bad happens, here’s what we do. We call our outside counsel immediately. Okay, and this plan is going to be a little different for everybody, but you eliminate a lot of the catastrophic mistakes that people make when they panic.
You look at like different causes of, you know, why do people die in fires? They can’t escape and they die. Or why do people drown and—but they panic. They don’t have a plan. They don’t have a plan, and they’re in full amygdala hijack, fight or flight, survival mode. Right? It’s—now this is very sad to say but my kids’ school, they do active shooter crisis plans at the high school. It’s very sad. I grew up we did fire drills. We didn’t have active shooter plans in 1982 at my elementary school. Okay, different time.
[28:30] Bill But why do they have those plans? So, if something bad happens the, the kids are pre-programmed and that helps them. Same thing with litigation. You know what happens? It’s once there’s an accident, once there’s an injury, everybody’s getting out their goddamn cell phone and typing and sending really, really stupid. That’s all devastatingly bad at that position. Trust me, I just worked on a case with this. The emails and the texts were horrible and you, you ain’t getting around it. You are not getting around it. Why were those sent in the first place? There was no plan. There was no plan.
Okay, so short episode this week but I want to give you something to think about. So again, if you’re a defense attorney right now you’re like, “Well what the hell do I do with this?” Talk to your clients. You could put your clients in much better position. And if your clients are insurance companies, tell the, work with the insurance company to work with the insureds—maybe get that hurricane check. Right? List—we have one. A litigation checklist. The litigation crisis checklist. We have it. We give it to our clients like, “Here’s your checklist.” Right? Very, very, very important stuff.
[30:09] Bill Uh, do I have a rant this week? Let’s see. I do have one rant. Um, college sports. This whole NIL thing, um, and what happened this—I don’t know when this episode’s going to post—but now you have players that are quitting midseason and walking away from their own teams saying, “I wasn’t, I wasn’t paid what I was promised.” This NIL stuff is out of control, and I fully blame the NCAA, who’s completely useless and the worst organization on the planet. And this open free market with zero parameters, zero guardrails, is going to ruin college sports.
I think it’s largely ruined. I think it’s turned a lot, a lot of people off and it’s a real damn shame. And there’s a lot of legal issues involved with that. Boy, if you’re a contract lawyer, boy, right? This is important stuff. So unfortunately, uh, and Dr. Wood, Steve Wood just had an attorney that does NIL litigation on the podcast, that type of stuff is going to explode here in the next couple years. College athletes suing the universities, the coaching staff, the NIL collectives, whatever, for broken promises.
[31:50] Bill What a mess they have made of college sports. And it’s really, it’s really heartbreaking because it’s something I’ve always loved and, um, it’s changed so much. Um, there’s nothing, to me there’s nothing better on a Saturday on my one day of rest is to kick back and, you know, watch college athletes compete, whether it be football field, basketball, baseball, even the Olympic sports. And now it’s just being absolutely destroyed with a chainsaw. Why? Money. Greed. That’ll do it. That will do it.
Well, on that very sad note, thank you for participating in another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky. We’ll see you next time.
Be confident in achieving superior litigation outcomes. CSI has the expertise, track record, and capabilities to help you win.
