Episode #250 – Your Witness Needs to Fail

Bill Kanasky, Jr., Ph.D. shares insights with attorneys for witness prep prior to their witness’s deposition testimony. Bill emphasizes that the most important thing for witnesses is to fail during preparation in order to learn and grow so they are prepared for their deposition. This approach can be a challenge for attorneys as you don’t want your witness to get mad at you or you may have concerns about hurting their confidence during the prep. It is critical for the witness to understand that their failure during preparation has value and is actually necessary in order for them to be successful during testimony. As you start your mock questioning and you observe them failing, stop and give them feedback to build awareness of their performance. How you give them feedback is very important. You have to use operant conditioning and provide both constructive and positive feedback in order to punish poor performance –  to eliminate it – and reward good behavior – to increase it. The use of these psychological principles will help you fully prepare your witness by allowing them to fail during prep and providing them with the appropriate feedback so they are ready for the real thing. 

Full Episode Transcript

[00:15] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky. How are we all doing? We okay into the new year? That’s good. I’ve got tell—I got to give you an update. These uh, these retainers they hurt like hell. Oh my gosh! So, I have to wear these. I went to the orthodontist, got these retainers. They’re going to space my teeth the right way over time, something like that. And I got to change them out every, every week. And every, every time I put a new pair in, oh my gosh does it hurt. It is brutal. It’s brutal. But I’ll keep it posted. I get to do it for like a year or two. This is going to be awful. It was terribly expensive, man. Painful, painful, painful.

[01:15] Bill Speaking of painful, how about painful deposition testimony? Okay, this is something we talk about a lot on the podcast. This is something that’s largely avoidable by doing the right things and we’ve talked about various techniques—what you need to do, right? Operant conditioning, things like that, preventing a medulla hijack. But let’s take a step back and kind of talk about big picture what we’re trying to accomplish here. And I’ve said this before, but now I’m going to actually dedicate a, a brief—this will not be a long episode—a brief episode to this. And this is something all attorneys should be thinking about in your witness preparation sessions.

[02:02] Bill Now I am well aware that you cannot hire Courtroom Sciences on every case. Uh, I am well aware that some of you don’t hire us and you use somebody else. That’s fine. Whatever. But what’s the overarching goal here, right? Whether you’re using a consultant or you’re doing this by yourself as an attorney, you want the witness to testify truthfully and effectively. Okay? They can testify truthfully but not be very effective, right? They could say too much, they could volunteer information, they can make a—they could be truthful and make a big, big freaking mess. All right, what you want is truthful testimony that’s also effective, meaning they’re only answering the question asked. Okay? They’re not singing like a canary, they’re not volunteering information. Especially you don’t want them doing the yeah but, yeah but, yeah but, yeah but, yeah but, and pivoting all over the place and killing their credibility. Okay? You, you don’t want any of that. That’s not going to work.

[03:13] Bill Now we talked about operant conditioning and the type of feedback uh, to give witnesses. But again, I want to take a step back and make something very clear which many of, many people overall I think struggle to understand, and I think this is a problem with the attorneys preparing their clients. Okay? You’re preparing your clients for deposition testimony. Let me say what you need to do. Okay? Let me be crystal clear about this. The only way the witness improves their performance: they must fail. Let me repeat that. The only way a witness improves—when I mean improves, I mean learn, grow, and learn how to give more effective testimony, developing the right habits, extinguishing the wrong habits—the only way to do that: they must experience failure. Failure.

[04:31] Bill Now this is a point of contention many of you do not want to hear this. So, let’s think about some other life examples. As you know, I’m a big, I’m a big fitness buff, right? Health nut. And I go to the gym most days of the week. I want to become stronger. I want my muscles to grow. So, what do I do? I get on the chest press or I’m doing curls or I’m doing lateral raises, I’m doing lat, lat pull down. All right? And I’m going to exercise and I’m going to work. But how do I get stronger? What’s the only way to get stronger? Scientifically, medical science, the only way to get stronger and to increase your strength and your muscle mass is to do repetitions till—you guessed it—failure.

[05:50] Bill If I go to the gym and I go through the motions—all right, three sets of bench press, three times ten; okay next up, curls, three sets of ten; tricep push down, three sets of ten—and I walk out, I am not going to get stronger and I am not going to grow. I have to push the muscle to the point of failure. I have to stress the muscle. It adapts at the cellular level and metabolically, and then as I do that repeatedly, I grow, I get stronger, I develop endurance. Okay?

[06:35] Bill It’s the same exact thing with witnesses. And what you guys like to do is you like to prep your witnesses, you like to work with them, and quite frankly you’re a little bit too nice to them. Now you got to be nice to them and you got to develop rapport, you got to develop trust, but here’s the key: the witness must fail to grow. If you’re going through the motions just like my example at the gym and the witness comes in and you do your three sets of ten—throw out the case documents and exhibits—they’re not growing. Okay? They may be learning some things but they’re not, they’re not growing cognitively, emotionally, or behaviorally. And that’s the growth that I’m talking about. See, you want to fill them with knowledge. You think that’s enough to get you—it’s not enough to get you there. If it was, I wouldn’t be doing this for a living. Okay? You’ve got to understand the truth about witness performance. And the truth is: they must fail. That’s the truth. You can’t handle the truth! Yeah, yeah.

[07:50] Bill Now why is this a problem? It’s a problem because you don’t want to get your witness mad at you, right? You want to bond with your witness, you want them to trust you, you want to develop your rapport. However, that’s not going to get them across the finish line. Okay? So how do we, how do we handle this? Well first of all, first step number one is your understanding of what I just told you. The witness has to fail to perform effectively at dep; they have to fail in your prep session.

[08:35] Bill Okay, hey let’s back up. Okay, let’s use a different example. Let’s get out of the weight room. You, you trial attorney. If you want to give a spectacular opening statement, you need to fail in your practice sessions. You’re going to, you’re going to step in a pile of dog in one of your practice sessions, right? You’re going to make mistakes, you’re going to identify them, you’re going to correct them. Okay? You’re going to be giving your opening to your colleagues and you’re going to screw it up. That failure and then adaptation is what’s going to make you into a superstar attorney during your opening statement at trial. And that’s whether you’re doing it in, in a mock jury setting or you’re doing it to your colleagues in the conference room. Okay? You want to fail in that process because that’s what’s going to make you better.

[09:44] Bill So I’m big on statistics, right? If you fail during any preparation session—whether it be with a witness, you’re doing your opening statement—okay, the statistical odds of that failure occurring again in the real situation at the real dep, at the real trial for your opening, the statistical odds that failure repeats itself is very, very low. Very, very low. Okay?

[10:16] Bill So step two: induce failure. Okay? Challenge your—trick your witnesses. Do mock questioning with them. Trick them. Trick them. Go, “Aha! I got you!” They’re going to be like, “What?” “I asked you this and you said that. That’s wrong. You just fell into the trap.” “Oh man, okay.” Let’s back up, let’s back up. We got this. Okay? Make them fail. Get all that out of their system so when it’s game day, okay, they’re not going to fumble the ball in the red zone. Make them fumble during the prep session.

[11:03] Bill Now when you hire me, you’ll see that’s exactly what we do. I want as much, I want as much failure as possible during witness training. As much as humanly possible. Why? I have control. I can identify, I can fix it. I can identify it and I can fix it and prevent it going forward. That’s how you get incredible performance. You’ve got to fail during the preparation process, identify those fails, failures, adapt, learn, get better.

[11:50] Bill Now here’s the tricky part again. Most attorneys are like, “Well, I don’t want my witness to get mad at me,” right? Here’s the, here’s the, here, here’s an important one: “I don’t want my witness to lose their confidence if they keep failing.” Very, very fair and realistic concern. Okay, so how are we going to get around this? We are going to educate them on this process. You’re going to tell them exactly what I just told you. Use the weightlifting example, right? Use that or something similar to where failure leads to positive results. It’s kind of weird, right? I mean how many areas in life does failure—but think about exercise again. I think exercise is the best example. The more you fail, the more the muscle gets pushed to failure in the gym, the bigger your muscles grow, the stronger you get.

[12:50] Bill That’s what this is like for witnesses. Okay? Explain that to them. Tell them. I tell every witness when we get started, I’m like, “Listen, the point to this training is to get you to fail. I, I want you to spectacularly fail. I want you to miserably fail. And know what we’re going to do? We’re going to pick you up, we’re going to dust you off and we’re, and we’re going to fix it. Because the last thing we want is for you to fail when the lights are on in the real situation.”

[13:29] Bill It’s tricky. Um, attorneys I’ve seen your witness—you know, you guys like to dive into those documents and go over strategy. I get it. And as you should. The problem is the only way for the strategy to stick—and we’ve talked about this a million times—is you need the proper foundation for the strategy to stick. You need the foundation that’s cognitive, emotional, behavioral, and then on top of that, on top of the foundation is what you’re building, and that’s the strategy. Bad foundation, building doesn’t hold up.

[14:08] Bill Okay, so get the witness to fail. Now let’s identify again, let’s identify potential failures. Okay? We have different types of failures, and you want to make them fail in all these ways at some level for them to again adapt and to learn. Cognitive failures. Okay? Meaning you have to get them—because remember what are we training them to do? Listen and think very, very differently than you would at work or at home or socially. Okay? You want to bait them and trick them in your mock questioning to start going fast and answering questions like this. And then when they do, mhm, you’re going to say, “Time out. Okay? I just got you. I, I’m getting you going really, really fast like, like you’re driving 55 in a, in a school zone here. Okay? And I got you going really, really fast. Let’s back up. Let’s slow this down.” Self-awareness, right? And give them that, and give them that feedback.

[15:22] Bill Okay, when they’re answering questions and they’re going beyond the scope of the question, okay, you want to get them comfortable. They get chatty, right? Or you get defensive and they get chatty. Okay, that happens. Witnesses say too much, they go beyond the scope, they volunteer information. You want that happening in the prep session. And when it happens, you hit the buzzer. You say, “Uh-uh, that’s not going to work. I got you again. Here’s why.” Okay? And it’s going to be painful. It’s going to be—trust me, when I’m doing curls with 50-pound dumbbells, rep six and seven is not fun. It’s, it’s painful. But that’s how I grow. Okay? Push the witness to the limit just like you’d push yourself in the gym.

[16:30] Bill The outcome is strength, endurance, and growth. Okay? Reptile the hell out of them, right? Push it. Push it with them. Get them to fail. Get them to say how important, “Yeah, safety is a top priority,” over and over and over again. And then when they do, you let them have it. “Ah, that’s not what we talked about!”

[17:03] Bill So here’s the deal. The whole crux of this is every time the failure occurs, how do you handle it? First of all, don’t be a jerk. “Ah, you id—God, are you an idiot? Jesus Christ, we just went over this ten minutes ago!” That’s how I talk to my kids. “Told you to take out the garbage ten minutes ago? Good God, are you not listening?” Okay? Don’t talk to your witnesses like you’re talking to your teenage children, right? You take a timeout and you go, “Okay, let’s talk about that. Okay? That, okay, you screwed that up. It’s okay. It’s okay. That’s why we’re here.”

[17:54] Bill Oh, here’s the phrase. I say this every week, I say this every day: “That, that’s why we’re doing this.” That’s why we’re doing this. And then you’re, you’re going to get to some point in the witness prep process, and your witness is going to look at you, because this is what they tell me every day: “Thank God we are doing this. I would be so screwed if I was in the dep right now.” And I’m like, “Yeah, I know. Yeah, I know. You’d be screwed. So, let’s, let’s keep going with this. All right? So, you’re better at the real dep.”

[18:35] Bill Okay, try some of those emotional tricks. Get aggressive or be super nice, right? We’ve talked about all the emotional dirty little tricks, right? Do all those. See how your witness responds. Okay? If you get pissy with them, when they start getting pissy back at you—mm, not going to work. Get all this done now.

[19:08] Bill What now, here’s what, here’s what’s going to happen. As the attorney, every witness is going to be different. Okay? So, what you want to do is you want to evaluate your witness, right? When you’re pushing them on these things to see what the strengths and weaknesses are. You’ll figure it out pretty quick. You know, depending on the—you can break down witnesses in a couple different categories, right? Okay, you got the witnesses, for example, I call them the, they’re the speed demons. Okay? They’re the speed demons. They answer questions super, super fast and they make a lot of silly mistakes because they’re just going too fast. Okay? That’s a cognitive problem. They’re going too fast. They’re not listening, they’re not thinking. Okay? You want to try to see, is this witness susceptible to speed? So, what do you do? You ask your questions quickly and top of—and see if the witness will match you. Make them fail.

[20:04] Bill Now here’s the great part. If they don’t, if they pass the test and they don’t fail—for example, you’re asking questions like bam, bam, bam, bam, and they’re pausing and they’re being very deliberate with their speed and they’re going 15 miles per hour in the school zone—you stop at some point and you go, “What? Hey, I got to hand it to you. I’ve been try—I’ve been trying to trick you. I’ve been trying to trap you and you’re not taking the bait.” So, what do you do? Back to operant conditioning: reward them. Positive reinforcement. “Excellent job. Don’t change a thing.” Now if you get them to fail, you go, “Hmm, let’s back this up.” Make sure you back up that train on the tracks and then try this again until they slow down. All right? They may fail multiple times in a row. That’s very telling too, right? So, you may have to repeat this process because then 30 minutes later they’re back to bam, bam, bam and it’s like, “Okay, here we go again. Here we go again.” Right? So, this is a, this is a process that you have to go through with, with, with the witness.

[21:20] Bill Same thing on the length of the answers, right? The other, other types of witnesses, they’re the talkers. I call them the Chatty Cathys. Okay? They start giving 90-second answers. Okay? It’s not going to work. 90-second answer? No. What do you do? “You just answered seven questions at once and you’re all over the place. You volunteered information. Shut the… up!” Right? Now be honest, you guys got to love this soundboard. This is a great, this is a really great part of this podcast. Okay, maybe some of you, maybe some of you don’t like the soundboard. I, I get that, but I think others of you—I think—so there we go. See? We, we have a mixed audience on the Litigation Psychology Podcast today.

[22:25] Bill So um, again I’m going to end this podcast because I want this to be kind of a down and dirty quick one. They’ve got to fail. They’ve got to fail. They’ve got to fail. And you’ve got to make them fail. And that’s kind of a little bit uncomfortable, but it’s just all about the setup. How do you set it up? You tell the witness ahead of time, “This is what we’re doing. This is why we’re doing this.” See, most witness prep it’s like, “Hey I’m going to get ready for the—going to get ready for this dep. We’re going to go over all the documents,” right? Get you familiar with those, go over the exhibits. Uh, I’m going to ask you some questions and you give them some feedback, right? But you’re not forcing failure.

[23:04] Bill See, in the gym the whole purpose of the exercise is to force the muscle into—like you’re forcing it into failure because that’s the only way muscles grow and get strong. Okay? Do the same thing with your witness. Set it up the right way. Tell them what you’re doing. I’m telling you, you’re going to get so much more out of your witness by doing it this way because we’ve—again, yeah I’ve, I’ve heard the nightmare stories. “I worked with my witness for three days, everything was perfect. Then they went into the dep and didn’t—every—the wheels came off.” Exactly. Because they didn’t fa—they didn’t fail during the prep process. So now the failures are rearing their ugly heads in the actual deposition. Okay? Find those failure points and you’re going to get so much more out of your witness. All right, I am out. Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky. We’ll see you next time.