Medical malpractice trial attorney Tad Eckenrode joins Bill Kanasky, Jr., Ph.D. to talk about the latest issues they are seeing in med mal cases. Tad and Bill discuss developments they are seeing recently including the increase in the number of 7-figure med mal cases as well as more openness from defense clients on investing in jury research to understand what these cases are really worth to help inform whether they should settle or go to trial. Tad shares the value he sees in collecting insights from mock jurors early in the life of the case, particularly during discovery and especially prior to mediation, to help shape how he approaches the strategic plan for the case and to inform the mediator of what his research shows the case is really worth. Tad and Bill talk about Gen Z jurors, artificial intelligence (AI), and attracting and retaining associates and giving them experience to help them develop and learn. They also describe examples of different witness situations and the challenges with preparing witnesses in these scenarios, including working with the growing population of physician assistants and nurse practitioners. Lastly, Tad and Bill talk about the risks of witness pivoting and how to handle witnesses who come into deposition prep with a high level of anger.
Full Episode Transcript
[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky. I am here with my guest who I have published papers with, I have given speeches with, I have worked with for, boy, pushing 20 years and he has been on the podcast before. Good friend, trial attorney from St. Louis, Missouri, Tad Eckenrode. Tad, are you as cold as I am right now?
[00:40] Tad Actually, it’s only six degrees here, so it’s pretty damn cold.
[00:43] Bill Well, I am, I am stuck in Iowa all week.
[00:48] Tad Oh, really?
[00:49] Bill Yeah, hence, so I’m stuck in the hotel room. I have blurred the background to, to try to make it look a little, a little different. Uh, I am, got the hoodie on, I am bundled up. It was, uh, minus 17 degrees outside.
[01:05] Tad Nice.
[01:06] Bill That is, uh, and it’s, uh, back in Florida it is, uh, snowing in the Panhandle. Saw that, Pensacola, Tallahassee. Uh, very interesting. Uh, better them than me, but minus 17 is no joke.
[01:17] Tad Yeah, but you lived in Chicago. You’re wor—you’re used to it.
[01:21] Bill I am used to it. I kept all my Chicago gear, so, uh, so, so we’re good. Uh, well, thanks again for coming, uh, on the show. Uh, you and I have again been working together for a long time. We worked together about a month ago and I thought it a good idea, uh, particularly in the, uh, you know, healthcare litigation med mal arena, to kind of get update and talk about some of these issues that keep, uh, creeping up on these, uh, cases. So the first question I have for you, um, is yeah, so it’s 2025, um, and I maybe this is more for kind of maybe the last couple of years, um, have you seen, uh, perhaps changes, uh, with your clients on maybe how they’re approaching litigation, how they’re handling litigation? You know, the plaintiff bar is very aggressive, they’re very coordinated, they, they share everything. Everybody has known this forever. Have you, have you seen, um, some clients start to, to make adjustments that have been positive in that regard?
[02:22] Tad There are, uh, changes and obviously part of this gets back to the idea—and you’ve written on, on this for years—about nuclear verdicts. And obviously in the med mal arena, you know, there’s not a case that we have that, that is worth less than seven figures. Plaintiff’s attorneys just don’t take small cases anymore because it costs so much for them to work the cases up. So, every case we have has seven figure potential or more. And of course, most doctors are only carrying million-dollar policies, so these cases all potentially expose them to liability. So, the trend the last few years that I’ve seen more and more is, is that there seems to be more of a, of a willingness to consider settlement on cases that years ago they would have said, “Let’s draw the line. We didn’t do anything wrong. We’re going to defend this case.” So that’s issue number one. Issue number two—and this is where you get involved obviously—is that they want to explore now what the real risk is. And so, I do see more of an interest these days in seeking out, whether it’s mock trials or focus groups or what have you ahead of time to try to evaluate what the downside risk is. And that gives them some insight as to whether or not they really should take a chance on a trial that, that might go one way or the other.
[03:35] Bill Yeah, and um, and, and that’s and that’s good news, uh, to see changes, uh, with clients. Uh, something that we’ve pushed, and many clients have jumped on board is the, uh, the notion of, of essentially—I mean take, listen, if you, if you can’t beat them, join them, right? Uh, the plaintiff bar is very, very good at number one focus grouping cases, number two doing it very, very early in a case. Now they’re doing it for different reasons, right? So, if you’re a plaintiff attorney, you advertise well, you got a bunch of cases. I think one of the reasons that you’re focus grouping is to determine okay, which of these cases should I put my money and, and time? So, so they’re doing it for a different reason. But, uh, what we’ve done now is, uh, helped our defense clients do focus groups very early in cases to get a kind of a preliminary read, uh, on the facts of the case, things like that. Getting some, uh, preliminary jury feedback on, on what happened, you know, high level, which is exactly what the plaintiff bar is doing. They’re doing it very well and I, I’ve seen now, now the defense, uh, is doing it. Um, it’s been going really, really well. Some of the pushback early that kind clients didn’t understand it, Tad, because I was like, “Hey, we can, we can do a like a mini focus group very early in a case.” They’re like, “But, but we haven’t had any discovery, so that’s a waste of time.” I’m like, “Oh, well no it’s not. We know what happened. We have, you know, the medical record in cases. If it’s a trucking case, we may have the dashcam video or a police report.” Um, we know what the witnesses are going to say, they’ve probably been interviewed already. There is an enormous amount you can test before depositions and it also would prepare you for the depositions, right? And then they’re like, “Well, we don’t have any experts yet.” It’s like, exactly, like that’s the whole point. Get the information early, it can help guide the discovery. Can you talk from the trial attorney perspective as a defense attorney how that early information can help maybe put you on the right track as opposed to the standard kind of traditional model of, “Oh my God, the case, uh, did not settle at mediation. Oh my God, we’re going to trial now. We need to start getting answers from jurors.” How does those answers from jurors early help you work up the case better?
[05:54] Tad Well, it’s, it’s tremendously helpful because as a practical matter I know that a lot of times when I’ve tried cases, at the end, win or lose, we try to talk to the jurors afterwards. And I’m always fascinated by the fact that they focus on something that we glossed over. And they—something that’s really important to them is something that we didn’t spend a lot of time on. So, getting that feedback early on a case where we, to your point, we have the records, we think we know what the issue is, and getting lay persons to tell us, “Well, I was curious about this fact,” and we’re like, “Oh, we, we weren’t even focused on that.” It gives us something else to, to look at and maybe to direct our, our experts search in a different direction or at least add somebody. So, I think it’s critically important information to have, especially on cases where we know from the get-go that if it goes to trial and it’s lost, it’s going to be a huge verdict because of the nature of the damages. So, knowing that early is very helpful in, in directing the defense theme.
[06:47] Bill Yeah, absolutely. Uh, another thing we’ve done in this regard and again some kind of natural pushback we get but then we explain that way there’s, there’s a way around this is that, um, “Well we’d love to test our, the cred—see, you see what jurors think about our witnesses, but they haven’t been deposed yet so we can’t do a focus group.” I’m like, “Well, wait a second, right? We can go to the hospital, right? Or have the, uh, the witnesses come in, um, take a 15-minute video of them you answering some questions both from kind of a direct and a, a cross angle and, um, play that to mock jurors in a more of a, a mini focus group and get an initial read on you know, the witnesses’ believability, uh, credibility.” Credibility, I think that would be something that’s important to you, uh, as a defense attorney too, particularly how you approach your, your witness prep, right?
[07:38] Tad I think that’s actually a great idea and I think that, you know, we’re going to see a little bit more of that in the future because some cases just take longer to work up and, and unfortunately you’re months down the road when you might get this kind of feedback. To your point, you get it later, uh, maybe even after the witness’s deposition. If you find out early, um, from a, from a focus group that the, the lay people are interested in a certain answer or a certain issue that again we’re glossing over, uh, I think that’s helpful. It’s helpful in preparing the witnesses. So if we do that early and we, we present the information to a mo—mock jury or in this case a focus group early, even by Zoom as you’ve suggested, um, then we can, can go back to our, our clients and we can say, “Look, before your deposition, here’s an issue that may come up that we, you know, I know you don’t think it’s important but it’s something we have to make sure we’re prepared for.”
[08:31] Bill Yeah. Uh, and then kind of a final, uh, kind of again initial pushback was, “Well, we, we don’t have complete information so why are we testing things with jurors?” And my response to that is, exactly, you don’t, you don’t need the complete information because some things are set in stone, particularly some of the facts in the case, kind of the overall story of what happened. And to start collecting data and how jurors, uh, feel about it, uh, as early as possible is very, very, very, um, wise. So, and again it—if the plan—if the plaintiff bar’s successful, they’re doing it, there’s really no legitimate reason why the defense cannot mirror those efforts. And so, we’re seeing more of that, you know? We have a lot of clients hopping on board with the “earlier is better,” taking a more proactive approach and, um, the vast majority of our clients are very happy they did. And there was some initial pushbacks. I don’t think they really und—like it didn’t make sense to them because the, the traditional is way you do these things to prepare for trial. But, um, another, uh, kind of a final point here, Tad, as you approach mediation, if you have some jury research in the form of focus group results, those could be used with the mediator to say, “Hey, we did our homework. Yeah, we know this is not a $25 million case. We know it’s between X and Y because we tested this. In some cases, we tested it twice.” Um, do you—like as you approach mediation, um, um, I think oftentimes what I have heard is that plaintiff attorneys are using their research at mediation and then the defense doesn’t have it and it kind of, um, creates an imbalance, right?
[10:11] Tad It does. I, I’ve been, you know, over the years, at least years ago, I was surprised how many times I would go to mediation and the mediator would walk in and he would say, “Well, the plaintiff attorneys tell me they’ve, they’ve focus grouped this and they think the case is worth $4 million.” You know, and, and obviously I don’t have a response to that other than, “Well, we think—we don’t think it is.” So, it obviously would be helpful to have said, “Well, we’ve done this ourselves.” And again, some cases the plaintiffs haven’t done it, so just say, “We’ve done it ourselves and here’s what the, we what feedback we got.” And again you can always choose how much you want to share with the mediator, but at the end of the day, having said that you’ve done that shows the, the mediator and the other side that you’ve taken a serious look at the case, that you are in fact, you know, you do have a defense strategy and you’re prepared to go to trial because you’ve gotten this information. So, it may help bring a case to, to a resolution that wouldn’t otherwise get settled.
[11:04] Bill Yeah, now again kind of like doing it the old way, um, I know a lot of defense—and you can still do this but I think it’s just a piece of the pie—but for example, using historical, um, verdict data from a venue and using that with the mediator, right? Now, I think that’s important, but particularly on cases that, you know, have unique case facts, yes, right? Um, say you have a couple codefendants. That’s not the most reliable source of data, right?
[11:34] Tad It, it’s not. And I’m asked that oftentimes by a lot of carriers. They’ll ask me to get some, you know, historical information on, on verdicts or settlements in cases like this in your venue. Well, the fact of the matter is there is no cases exactly like this, especially in the medical arena because every case is a little bit different. So yeah, I could say that I have had prior cases in which there’s been a bowel perforation as a result of an intubation or what have you or, you know, some sort of, of procedure. But that doesn’t mean each case has the same value because the injuries are always going to be different, the plaintiffs are going to be different, um, the nature of the injury is going to be different. So, I, I’m not a fan of that quote-unquote “historical data” because I just don’t think it really provides, at least in the medical malpractice arena, valid information. Maybe it does in trucking industry and slip and falls, I just don’t think it does in the, in the area that we practice.
[12:28] Bill And also much of the historical data is based on a different jury pool, right?
[12:31] Tad Different jury pool. And it’s, it’s year—it’s two, three, five, seven years old. It just doesn’t matter.
[12:36] Bill I mean pre-COVID data isn’t really a good thing to be using right now, right? And then, you know, now we have, uh, Gen Z, right? Gen Z entering the jury pool, uh, making up a large proportion. Uh, we have a lot of statistics on them. And again, it’s like it’s—I remember back in the day, and you remember this, these poor m—these poor—see I’m, I’m a Gen Xer, you know, so we’re, you know, we’re we are the best. Um, when these poor Millennials came into the jury pool and the workforce, boy, they took a beating, right? “Oh, they’re—you they’re this, they’re that,” and they just took a beating. And then, “Oh, they’re the worst jurors, they, they award more damages, they’re more anti-corporate than any we were.” And then as it played out and we collected data, we pretty much scientifically proved well, no, that’s not the case. Okay, so now the new redheaded stepchild on the block is Gen Z and I already saw, saw two articles with based on no data whatsoever come out going, “These, these jurors are causing nuclear verdicts. They’re the worst. These Gen Z blah blah blah blah blah.” Tad, I, I ran the stats. We, we, we have the statistics. That is absolutely fundamentally not true. They’re highly opinioned—like all young—it’s just a young person thing, right? Think about how you were between 18 and 25. You think you know everything, you don’t know, right? And then you get into a jury deliberation, and all the Gen Xers and Boomers essentially beat you into the ground and you go, “Okay fine, I get it,” right? So, um, have you been experiencing any nightmares over Gen Z jurors, uh, lately?
[14:10] Tad No. I mean, you know, like you said, I every, every juror, it doesn’t matter whether they’re a Boomer to a Gen Z, at the end of the day they all come in with different beliefs, different prejudices, different biases. You know, you take all of that into account as you try to pick your jurors. You know, you’re not going to just completely wipe out one group because of where they are age-wise. I just don’t think that that’s productive. Um, you know, you’re going to find some Boomers who aren’t helpful to us. You’re going to find some Gen Zers who aren’t helpful to us, and vice versa. So, I don’t think that, that classifying them by their age group is really that helpful as a general proposition. There’s way too much—and you know this more than anybody—there’s way too much to jury selection than that.
[14:55] Bill Yes, unfortunately so many defense attorneys openly just rely on demographic variables like that that are not really predictive in most instances, uh, which is kind of scary. So, uh, let’s shift gears, um, and I am going to throw a curveball at you. Um, I wake—let me tell you what I do. Uh, I wake up very early and, um, I’m here in Iowa and of course, so I go down, I get my, uh, coffee and I go on LinkedIn. And there’s a post on LinkedIn this morning. I have to run this by you. I took a screenshot of it. You ready for this?
[15:33] Tad Sure.
[15:34] Bill Um, AI—this is from an attorney—”AI will not replace you but it will replace junior attorneys pretty soon. Tasks like legal research, document drafting, and routine analysis can now be performed by AI. This technology has the potential to free up time for more strategic, high-value work.” This is a—now this, this has, you know, this popped up a couple years ago when kind of ChatGPT, you know, first came out and then, um, everybody got worried and then attorneys tried to use it and then it turned out not to be very good. But this stuff is growing and it’s, it’s going to get better and better and better. Um, what, what are your reactions, uh, uh, to, to that post? Because I don’t, I don’t think AI is ever going to put attorneys out of business, uh, because there’s a lot of things that you guys do that are you highly strategic, uh, and of course you’re going into, you know, trials and stuff like that. But, and this is kind of an unfair question, but uh, do you have any guesses on kind of particularly med mal, um, the role it could play, um, maybe to make your law firm, uh, more efficient? I’m not quite sure it’s going to take over to the point where, uh, it’s going to eliminate junior attorneys, but there’s a little bit of anxiety in the industry right now on where this is going, particularly from the client, uh, point of view. Um, I, I’ve heard, um, many of defense attorneys say, um, that their worry is that corporate clients are going to figure out, “Hey, wait, wait, wait, wait a second. Why am I paying somebody $200 an hour or $300 an hour, 250 or whatever, to do something that this technology can do in like seven seconds?” Yeah, boy, there’s a huge cost saving there. What, what are your thoughts on this topic?
[17:24] Tad Um, unfortunately there’s a lot of that, that’s a valid fear. Uh, and I’ll tell you why. Um, you know, I, I mentioned to you that the conversation or the, the presentation we did at the CLM conference last year about the future of the defense bar and the future of the insurance industry. And part of this was prompted by a conversation I had with a, a, a, a carrier representative about two years ago who’s a lawyer who, who went in-house years ago. And he told me that he has a program, an AI program, that can do a deposition summary as well as or better than any associate could do. And his point was, “I can feed the, the transcript into this program. It can spit out in, to your point, 10 seconds a narrative summary of that which quite frankly is written better, it’s punctuated better, better grammatically than what a junior associate does.” So, what he said was, “I’m telling all of my defense attorneys they have to get this program and start using that instead.” And, and I said, “Well, you know, I’ll look into it,” just because I was—I don’t do work for the guy, but I said I’ll look into it. Well, the problem is that program—there’s a licensing fee and it costs something like $5,000 a month for a firm my size, which is very small. So, I would have to spend $5,000 a month for a program to lose $2 to $3,000 a month in billable time. At the end of the day, that’s a $7,000 to $8,000 a month loss to me to have that particular client’s business, which obviously I don’t have and I never will have because I’m not going to buy that program. But the point is, there are things out there that the, the clients are going to start to insist that attorneys use because they do think it will be cheaper for them. And it’s going to end up being a problem for defense counsel and for defense firms across the country. And then you get to the point of, well, how accurate is it? For the guys who’ve used AI to try to do legal research, they’ve already heard all the horror stories about that. You know, you you let—if you don’t check it out and, and look at all the sites, you’re taking a huge gamble and of course then you can get sanctioned and who knows what. So, I think that there’s a, there’s a, a place for AI to help maybe as a starting point on some of your research and drafting some things, but that’s all it should be. It should be a foundation that you then use to, to kind of move things along. I—will it replace lawyers? It won’t replace the trial lawyers and what they do. It won’t replace the lawyers you have to make strategic decisions. But it may replace for lack of better term, you know, the, uh, you know, the pawns. It may replace junior associates doing depo summaries and doing depo indexes and doing research or at least to a certain extent. Um, so there is that risk and it’s, it’s a big problem quite frankly.
[20:04] Bill Yeah, um, now I think it hopefully can be used effectively because I mean think—let’s think—let’s look at a different angle. Um, many of law firms, defense firms across the country are desperately looking for associates.
[20:20] Tad Right. That’s the other side of the coin.
[20:22] Bill So, so, so if you need—so in other words say you have five associates, right? But you need 10. Well, you maybe, uh, as this technology forms, the five associates could do the work of 10, right, by using the technology and you can kind of have your cake and eat it too, right?
[20:43] Tad But the problem with that is, and this is again the point of my presentation, the five associates may be able to do the work of 10, but they can’t bill for 10 associates to do it. So, we’re not generating the revenue that we would from 10 associates and in fact we’re spending more in overhead to get that work done. The benefit goes to the client. The defense firms are absolutely going to get, get, uh, wasted by this. It’s just going to be a killer. So, but the other side of the coin is, as I’ve said, we are looking desperately for, for attorneys. There is a huge problem in the defense bar right now in order to attract and retain talent for the future. Now that’s going to be an insurance industry problem which I can talk about, and I did at length at CLM. Um, it’s going to be a problem for the insurance industry 10 or 15 years down the road but it’s a problem for us right now. We cannot attract talent, we can’t keep talent. The reason for that is as I said, I blame the insurance industry because they won’t pay for it. And, and that you know, the, the, the problem there is traditionally insurance defense practice has been always at a lower billable rate than commercial litigation, transactional work, you know, all corporate litigation. So, we can’t generate the same revenue that the big firms that do that can. So, when we have lawyers come in, we can’t pay them what they can get elsewhere. So, lawyers will come in—if they come to us they’ll stay a year or two and then they’ll go somewhere else. But we’re now we’re not even able to track them. And this is a problem not for—not just for firms my size, but across the country. I’ve had this conversation with so many, you know, managing partners of defense firms that they cannot get, get help in the door and they can’t keep them. So where is this going to go 10 or 15 years from now? There won’t be, be an incoming crop of well-seasoned trial attorneys who know what they’re doing. The insurance industry is going to end up getting slapped in the face because the, the plaintiff bar is going to get emboldened because they’re going to have lawyers who they’ve worked up who have gotten trial skills. There won’t be defense lawyers around who do that. So, 10 or 15 years when I’m sitting on a beach somewhere drinking Mai Tais, it won’t be my problem, but there won’t be anybody who really knows how to try a case anymore because we just can’t attract and keep them. If the insurance industry right now would adjust—and there are people who think about this and realize that, but most people are talking about today’s bottom line. They’re worried about what I have to do today, how much money I spend today. They’re not thinking 10 or 15 years down the road. So, the guys in the insurance industry who have some foresight who are thinking about that realize that this is a problem. And if the insurance industry would adjust today and start paying higher or more competitive rates to insurance defense counsel, then we could attract good lawyers, we could keep good lawyers, and we’d be prepared for what’s going to come down the road 10 or 15 years from now. But that’s my rant.
[23:38] Bill Well, it’s and that’s—it’s a great rant. Um, I think, I think it’s a truthful rant. I think it’s something no one particularly wants to talk about. Um, but yeah, if you’re if—if you’re an insurance company, it’s something you, you, you need to start. Now, speaking of adjustments in that regard, um, another adjustment that, um, sometimes I, I, I’ve seen happen with some insurance companies, others not so much, I know it affects you is, um, you know regarding your associates, uh, and younger attorneys’ development is to give them important roles in cases and be able to bring them on, uh, and not be stiff-armed by, “Tad, we want you to do everything,” right?
[24:16] Tad Yeah.
[02:17] Bill And then you’re like, “Well, I want to bring on somebody else,” and they’re like, “Well, we can’t pay them, uh, if you bring out another, or we have to cut that rate, or we only want them doing X, Y, and Z.” At trial we want you to be—can you describe about how like I, I can understand, right, that the insurance company wants the most veteran, experienced attorney doing everything. But how that’s—that’s not really practical and it does hurt you in the future because if those younger attorneys aren’t, aren’t getting repetitions and they’re not, they’re not getting, uh, at-bats, they’re never going to develop, right?
[24:55] Tad It’s, it’s a real vicious circle because every one of my carrier clients who I, I, I’ve asked to allow a junior person to get involved always say, “Well, has he or she done this before?” And if the answer is no, then their response is, “Well, I don’t want them to cut their teeth on my case. Let them cut their teeth on somebody else’s case.” Then it just goes around and around and around. Um, you know, yes, the—it’s unfortunate because as you know I kind of specialize in medical malpractice. So again, as we said earlier, our cases are all multi-million-dollar cases and I understand why they don’t want a relatively inexperienced associate to have a significant trial role on a big case. I don’t have the $25,000 auto cases that I can let them get that experience on. And so maybe what I need to do—and again this gets back to the idea of attracting talent—I need to to be able to to hire an associate who has worked somewhere else and has worked on the auto cases and the slip and falls and gotten some experience to bring them in and allow them to work on the medical malpractice cases. But again, I’m a small firm that kind of specializes. That’s, that’s going to be our, uh, you know, burden to bear. But they won’t, they won’t allow them to step in on their case. They always want them to step in on somebody else’s case and get that experience before they will say, “All right, fine, I’ll let he or she try something on mine.”
[26:17] Bill Yeah. Difficult topic. Uh, let’s, uh, shift over. Let’s get, get a little med mal-specific here. Um, I was, uh, I’m here in Iowa. Uh, worked with a physician on Monday and, uh, I’m here the whole week working with all kinds of people. And I had a unique situation. The physician I was working with, uh, had testified multiple times as an expert, but never as a fact witness. I personally think this is trouble, right? I think these are some of the most difficult witnesses to prep because they’re pretty much wired for expert testimony and then they come into a fact witness scenario and they, they’re only wired for one thing. Can you talk about how that can be a major headache and the, the things you got to do to pretty much rewire their brain to prevent them from being experts in a case when, when, when they’re really just fact witnesses?
[27:11] Tad That’s really dangerous because if they’ve only been an expert witness in the past, they, they’ve been able to kind of, I’ll call it coast. Because number one, they didn’t have skin in the game. What they really were getting was 500 bucks an hour to say what they wanted to say.
[27:28] Bill Yeah, pretty much.
[27:29] Tad And you know, it was easy. And so that they come in with, with a lot of, of belief that this is going to be a simple process. “I’ve been through it before, I know what to do.” It’s hard to, to pull the reins back on them and remind them that now they are the defendant in the case. Uh, and now they are at risk both, you know, their, their obviously their own name potentially, uh, personal liability. And, and you don’t want them to go running off like they would as an expert witness. And it’s hard to control them because they think, “Hey, I’ve done this a hundred times, you know, this is, this is easy, I can do this.” They’re not going to pay attention to you in, in depo prep because they’ve, they’ve heard it all before. Um, so they just think, you know, it, it’s like, “Oh, just set the depo, I can take care of this.” Um, it’s a very dangerous attitude. Really is.
[28:18] Bill It’s a, it’s a very different ballgame as a, as a fact witness and if you’re a named, right, defendant, it’s different. So, let’s take a different scenario. So had a different witness this week who had zero expert training, right? Zero, zero expert experience. So, I’m like, “Good,” right? However, now we have the other extreme, right? They had been deposed five times as a treating physician, right, in which they were not a target. And so now that creates a different kind of sense of false comfort, right? Where they come in going, “Hey, I’ve been down this road before, like what’s the worst that could possibly happen?” And they have to understand that when you’re a target, right, witness, that it’s going to be a completely different ball game.
[29:01] Tad Correct. Right, right. When you’re, when you’re just a fact witness, all they’re doing in, in those fact witness depos is, is they’re presenting you with your records and saying, “I see that you charted X, Y, and Z. Does that mean you did this?” “Yes, I did.” “And then what did you do next? And who do you refer the patient to?” Those are easy questions. But now when you’re the target defendant, “I see that you did this. Why did you do that? And what were the alternatives? Did you consider this? Did you consider that? Why didn’t you refer the patient to this person?” And the questions become far more aggressive now because you’re not there as the fact witness to help the plaintiff’s attorney with information that will help his case. You’re there to basically be crucified for the, the work that you did or didn’t do. Uh, and they’re not prepared for that because they think, to your point, they think, “Well, this has been easy in the past. I just look at my record, I tell them what it says, and I’m done.” It isn’t going to be like that.
[29:52] Bill Another scenario that I’ve been coming across more and more frequently is when we have a fact witness, whether it be a physician or, or a nurse or some other healthcare professional, and their, their care is really not an issue but they’re being deposed. And I see this in trucking a lot, right? Where rather than attacking the truck driver, they actually do the opposite. They embrace the truck driver and they said, “Listen, hey, this was an accident, okay? It’s, it’s not really your fault entirely, but your company didn’t train you appropriately and these—like your safety director sucks, right? Like you were, you’re a good guy, you’re a good apple, but you were put in this barrel with a bunch of bad apples.” And they try to make that witness their expert to testify against other people. So, I see this a lot in med mal where it’s a nurse or a doctor and they’re saying, essentially, “Your care and your documentation was great, but you would agree with me that this other provider that took over after your shift was over, I mean, they blew it, right?” Like, and, and I see this—there’s a lot of psychological, you know, principles going on here where the, the witness is essentially baited into criticizing other providers in the case with the plaintiff attorney saying, “I’m not coming after you. I think, in fact, I think you did a great job. You were a great nurse that day.” And they actually say that, right?
[31:22] Tad Until the next witness testifies.
[31:24] Bill Yeah. And, and then they—and then they start asking questions about other providers. And I see witnesses struggle, uh, because obviously we both tell them, “Hey, don’t talk about other people’s care. You weren’t there,” right? Can you talk about, uh, kind of how you deal with that? Because I, I see a lot of that happening.
[31:43] Tad Well, the problem is you can only deal with it prior to the depo. Once the depo comes, they’re on their own. Um, so you’ve got to remind them that they may be, they may be baited and that there are going to be a lot of tricks. And I know that you do this when you talk to the, the witnesses. There are a lot of tricks the plaintiff attorneys can use. I mean, there are some guys who are aggressive and will beat the table, and then there are other guys who will do that whole sucking up thing where, “I don’t think you did anything wrong here, but you know, why, why—who trained you to do it this way? And and why wouldn’t you have called this doctor at that point in time? Did he ever tell you not to call after 11 o’clock and is there a reason for that?” Things that will, that will sound almost inoffensive and, and innocent as asked, but actually can, can obviously create a storm, as you well know. So, they, they have to be careful to watch for that. And at the end of the day—and you know this from our, our many, many times training witnesses—we tell them just to ask—answer the question that they’re asked and not think too far down the road. And yet the questions are designed to get them to be thinking about that. It’s designed to get them off their game and focused on, on what they did with, with some, some things like those those false, you know, platitudes. “You know, I think you did fine.” Um, it can be very dangerous and unfortunately once they start talking, you know, sometimes you can’t shut them up.
[33:03] Bill Yeah. Now another issue that’s—and this has happened, this has been around for a while but it’s continuing to increase, uh, based on just the business model of many healthcare systems—is the, um, ever-growing, uh, influence, um, uh, and participation, uh, of, uh, physician assistants and, uh, nurse practitioners. Now, you know, back in the day, right, it’s, it’s pretty easy to when you’re preparing a nurse to tell the nurse, “Hey, if you get medical questions, you defer those to a physician.” And when you’re prepping the physician you go, “Hey, if you get nursing questions, you punt. You punt the ball. You, you refer to nursing,” right? Because you’re not a doctor and you’re not a nurse, right? That’s, that’s not a difficult, right, distinction to make in witness preparation. Many of the business models now is the—I mean, the amount of PAs and NPs providing care is incredible. And so, they’re involved now in a lot of these lawsuits. And the—there’s a very, very fine line between them, both of those professions and physicians, right? And you get into this where, you know, you have a, you have like one physician supervising eight physician assistants or nurse practitioners and they’re just signing documents, right? Much of the time they’re not even seeing the patient, right? And I, and you can see how, um, the plaintiff bar is very effectively in many cases kind of showed, you know, that hey, you know, we’ve got a problem here because this, uh, this is not a good way for patients to get care, right? And, uh, when you’re pre—prepping, uh, those types of witnesses, the PA and the NP, how do you make sure they don’t step over that line into answering questions that really the supervising physician or any other physician or an expert, uh, should be answering?
[34:59] Tad Well, it’s, it’s obviously a very dangerous area. To your point, it’s unfortunately growing and it’s going to be a slippery slope for the reasons you said, because they are nurses. So, when a, when they say, when they try to punt a nursing question, the plaintiff attorney very appropriately says, “Well, you, you are a nurse. You were a nurse. You did this. You were certainly, certainly qualified to address what the nurses did.” But then they’re also now—they, under the licenses, they usually have the license and the ability to prescribe medications just like a doctor does. So, they’re in this, they’re in, in kind of both boats. Um, what, what you try to remind them is, is that they all operate under a collaborative practice agreement. So, what that means is that some doctor does have to quote-unquote supervise them. And, and you use that as a suggestion not to go too far. Um, but again, they’re going to be asked questions as you just suggested. “How many of your charts does Dr. Smith, your collaborator, review? Um, did he review this particular one? Did you talk to him about this?” You know, and obviously they usually don’t. They usually make—making their own decisions. It, it does open up in an incredible area of potential liability in the medical malpractice arena that wasn’t there 10 or 15 years ago.
[36:08] Bill Yeah.
[36:09] Tad But to your point, it is the model now. And part of that is because outlying areas, you know, in small Podunk towns, they can’t get doctors anymore. They’re happy to have a nurse practitioner there to at least provide some care. In the prisons and jails where I, I do a lot of my work, they’re happy to have a nurse practitioner because they can’t get a doctor. So unfortunately, that is going to be the model going forward, but it also exposes a lot of people to potential liability. And it puts these nurse practitioners in the, the position of being able to address both medical care and nursing care at the same time. So, it’s, it’s going to be, you know, it’s going to keep you busy for a long time, Bill.
[36:49] Bill Yeah, yeah, absolutely. Um, let’s shift over to now, um, our favorite topic. The topic you and I have been discussing for years and years and years. And I got to tell you, this could be the most controversial topic you and I talk about. I know you’re very passionate, um, about this topic as am I. You and I have written papers, you and I have given speeches together on this topic and boy is there pushback. So, I’m work—I’m working, uh, with this, um, physician yesterday and we’re talking, um, about answering factual questions, right? And I’m—’cause remember the worst thing a witness can do, particularly a—I, I think a physician—is go into that fight-or-flight type of mode. Particularly if they go in the fight and they start arguing, they start being defensive. And what happens is, so we have these things called “threat facts,” right, that we prepare witnesses for. And this is—these are facts in the case that maybe don’t look so good. All right, like for example, something in the chart is not documented, right? So good plaintiff attorney—right, hats off to them—good plaintiff attorney will say during deposition, “Now doctor, wouldn’t you agree, right, at 2:00 here in the medical chart, there’s no vital signs documented? Isn’t that true?” And you look down at the chart at 2 o’clock, Tad, and guess what? There’s no vital signs documented. The answer to that question is, “Yes, that’s correct,” right? And you shut up, right? However, this is where that fight-or-flight and it’s so powerful, right? Every doctor wants to say, “Yeah, but, yeah but, yeah but, yeah but, yeah but, let me explain.” Now, we have tested this for a decade in front of mock jurors. We’ve interviewed jurors after real trials. The number one thing jurors hate is pivoting. They hate it. They absolutely hate it because it shows that you’re evasive, it shows you’re defensive, you’re, you’re not answering the question. And a good cross-examiner will say, “Now, doctor, okay, I appreciate your long defensive explanation. I also appreciate you’re going to do everything you can to defend yourself, okay? However, my question is very simple, okay? Let’s look at the chart. Isn’t it true…” and they’re just going to reel you back in. And it may take five minutes of back and forth and fighting, but that witness is gonna eventually say, “Okay fine, you’re right, it’s not that,” right? And it creates—it kills witness credibility, creates a bunch of fight-or-flight chemicals, neurochemicals in your brain that just can, can really distract the witness and ruin their deposition. If it’s a videotaped deposition, they look terrible. And so, I’m talk—I’m working with this physician yesterday and he really struggled with this. And then he got it, but he told me during one of the breaks, he’s like, “I got to tell you,” he’s like, “I, I know that’s a fact that that’s not documented.” He’s like, “But in my heart and in my brain,” he’s like, “I know there’s more to this story and I have this like huge urge to jump in to an explanation and I feel if I don’t, I’m hurting the case,” right? And that, and that’s not true. Um, let’s, I mean, let’s talk about this because as you know there are people out there that actually teach this, that they think it’s a good thing. I think it’s the worst thing ever. And the problem is it’s still happen—like you and I started talking about this almost 10 years ago. It’s still happening, it’s still getting witnesses and clients in a bunch of trouble. And if you do it in front of a jury, you’re going to lose ’cause it looks terrible. Um, pivoting. What are your thoughts?
[40:33] Tad Well, you know what my thoughts are. I mean, I, I’m vociferously opposed to that concept, and I’ve seen it ruin, uh, some good depositions with doctors who’ve been trained to do that. Now the fact of the matter is, you know, again to your point, when you’re talking to these doctors ahead of time and you show them a chart and you say, “Now doctor, you’re going to be asked this: You didn’t chart X at this point in time. When he asks you that, just say ‘I didn’t.'” Admit it. It’s—we call it owning the fact. It’s there. But what they always say is, “But, but Tad, don’t I get to defend my care?” And I’m like, “Yes, you absolutely do, but not in this deposition. At trial, I can put you on the stand and I can say, ‘Doctor, you were asked before about whether you charted this. Can you tell the jury why that wasn’t charted at that point in time?'” And he can explain why it wasn’t that important or whatever the answer is. First of all, when you tell that to the plaintiff’s attorney in a deposition, to your point, you look very defensive because it’s, “So, yeah, but I, you—we never do this.” Secondly, you’re giving him all sorts of free information. You’re giving him your defense theme. Now, you’re giving him everything. Now he knows what you’re going to say at trial. His expert will be prepared for that, he’ll be prepared for that explanation. Why tell him that? As you and I have told witnesses, if you say, “Did you chart X?” and they say “No,” stop. Now, he may ask the next question, which is “Why?” And if he asks why, go ahead. But if he doesn’t ask why, that’s on him. And there’s no reason for you to give him that information when he doesn’t ask, and then look defensive at the same time. Because when those videos are played to the jury, that’s what it looks like. I can, I can clean them up for trial, I can have them ready for trial, but the video is going to get played.
[42:16] Bill And that’s a problem. So again, I have spoken and collected data on countless jurors—from countless jurors on this very issue. I have interviewed jurors after defense verdicts and med mal cases, Tad, they say the same thing every time. There’s two things that come up every single time when the defense wins. Number one, which I do think is more—most important is: “I really liked that person. I liked that person. I, I trusted—I liked them.” So, likability is key. Well, if you’re defensive and evasive, you’re not going to be likeable, number one. But number two—and this is a very close second and this is key strategically—this is what jurors say. Everybody li—please, the world, please listen to what I’m about to say because no one effing listens, right? They say, “We voted for the doctor or the nurse or the—because they embraced—they owned their decisions. They owned their care and we respected that.” Not defended their care—owned their care. By the way, Tad, you’re a defense attorney—you defend care. Defense experts defend care. If providers defend care, they’re walking right into the trap. They need to embrace and own their care because that’s what gets respect from the jurors.
[43:49] Tad Yep.
[43:50] Bill That’s my—that’s my rant for the day.
[43:52] Tad Yeah, I’m, I’m with you 100%, you know that.
[43:54] Bill And they don’t get it. So, uh, couple more questions, then we’ll wrap up. Um, you know we’ve talked about—and you and I have talked about—uh, you and I have worked with a number of witnesses and I’ve, I’ve done a million podcasts on this and papers and speeches about witnesses that come in the deposition or trial testimony—I mean, they’re super nervous and anxious, right? That you and I deal with that, I mean, probably on a weekly basis, right? Sometimes a daily basis. Um, but let’s look at the other end of this. I don’t think this gets as much attention as it should. How do you personally deal—I had another one this week—um, a provider that comes into particularly deposition, they come in hot. They are pissed. “This is a BS lawsuit. This is unfair. This is ruining my life. This is personal.” And they come in and they’re like raging lunatics. How do you deal with that? Because I mean, I know how to deal with it, but you and I have dealt with that before too. But I want to put a little bit of focus on this.
[44:54] Tad It’s a problem. Obviously, I mean, we, we try to make them understand that, you know, yes, I understand that that you don’t like the fact you’re sued, and you think the case is BS. But that can’t come across. Your demeanor has to be a professional demeanor. You have to be courteous. You have to basically make the jury think that you are there to help them because you have nothing to hide. To your point, the jury is only going to—may not only—but the jury is going to find in your favor if they like you. Your attitude, that, that demeanor that you have is not likable. So, you’re losing the likability contest right there. Yes, you may be true—the entire case may be wrong, and this entire case may have been a complete, you know, joke—but you can’t come across that way. You have to sit there politely through your deposition, as long as it may be. Be polite to the other attorney who’s asking you questions. Don’t be combative. Don’t have an angry look on your face if it’s videotaped. To your point, you know, we showed these guys examples of, you know, the—that whole attitude doesn’t look good and do it. So, this is, this is hard to work over with some of these guys, but you really have to get a handle on that early. I mean, you can tell—I can tell—when they come in for their initial meeting, they’re mad that they got sued. I can tell when they come in for preps that they’re mad that they got sued. And you’ve got to get them out of that mindset that that’s just something that cannot come into the deposition. It just can’t, because it’s, it’s very counterproductive. It’s almost as bad as pivoting, quite frankly. It’s, it’s pivoting in a non-verbal way, is what it is.
[46:25] Bill Yeah, and um, it can be dealt with. So, I think the advice here is if you have an angry witness, uh, number one—well, here’s step number one which often gets skipped: There’s a lot of hidden anger, Tad. I, I think you really need to assess your witnesses better and say, “Hey, here’s the first thing I do with every witness,” and you’ve seen this. The—here’s my first sentence after introducing myself. I go, “Listen, every witness I’ve worked with in 23 years comes into a case experiencing some type of emotional reaction.” I go, “You got your nervous, right? You got your nervous anxiety people, right? You got your, like, your guilt, shame people. And you got your pissed off, angry people.” I’m like, “Where are you at? Like, where are you at in this spectrum?” And Tad, they’ll tell you. But if you never ask and they’re hiding the anger…
[47:12] Tad Yeah.
[47:13] Bill …and then it comes out in the dep, it’s gonna be like a nuclear bomb, right?
[47:17] Tad Yep. Absolutely
[47:18] Bill Deal with it early, deal with it often, and let them vent. ‘Cause it’s like a pressure cooker. So then by the time they get to the real dep, they’ll be better. Okay, let’s finish with the, uh, most important topic as spring training is right around the corner. Uh, the Cubs just had their winter meetings and, uh, the owner comes out and says, “I don’t know, you know, we don’t have Dodger and Yankee money, okay? So don’t be holding us to the same standard.” And then, then everybody on, uh, X and every social media platform exploded. And they went into the Cubs’ revenue for last year and showed, “Well, wait a second, yeah, you do have Dodger money, you do have Yankee money, you just don’t want to pay for it.” So, everybody’s like, “Oh God, why did you say that?” Uh, it was a rough season for the Cubs. Uh, they’re not spending the money they need to on talent. Now I know, uh, very unusually, um, the Cards typically are in there. They had a, they had a down season. What is the local word on the street about, uh, the Cardinals upcoming season in 2025?
[48:22] Tad Well, part of it’s panic, most of it’s apathy. And and you could see it last year. I mean, people weren’t even showing up for the games. Um, the entire fan base has lost complete confidence in management, field management, and general management. Um, you know, our offseason moves were to get rid of Paul Goldschmidt and Nolan Arenado makes no sense. I mean, those were the guys who are your superstars. Now Nolan’s still with the team, but they’re ready to trade him for a case of beer if one’s available, um, because they’re trying to get rid of the—they’re trying to save money. We’re, we’re putting Willson Contreras at first base. He was a catcher, you know, as you well know, for the Cubs for many years. Great catcher. We’re going to put him at first base because that’s our, our big move. Um, you know, nobody that they get at first base is going to be as good a glove as Paul Goldschmidt ever was. And even in his, his down years—yes, his best years are behind him—even in his down years he’s better than probably anybody else they could put out there. So the, the fan base has lost all confidence in management. And we, you know, there’s no moves they’ve made in the off-season this year that are going to help the team. We’re going to struggle to maybe get fourth place in our division, maybe. Um, and and I don’t think people are going to show up. I mean, they—there’s always a crowd at the home opener. The home opener, as you know, in St. Louis is like a day off. Everybody goes to the home opener. It’s a holiday here in St. Louis. After that, the fan—the fan attendance is going to drop off steadily unless there is some miracle on the field. And and they have some good players, but these are good—I’ll call them good B, B+ players. They don’t have any A, A+ superstars anymore. And that—apparently, we’re not going to get any. So, we can’t compete with the Dodgers, um, you know, in teams like that. Uh, so if we win 70 games this year, it’s probably going to be what we’re looking at.
[50:14] Bill And the hap—the happiest people in the NL Central are, um, Brewers—Brewers fans at this point. So yeah. All right. Well, Tad, thank you so much again for coming on. Uh, great discussion. Uh, hang around, we’ll talk some more. Uh, to our listeners, thank you so much. This is another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. We’ll see you next time.
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