Bill Kanasky, Jr., Ph.D. joins Steve Wood, Ph.D. to answer some recent podcast viewer/listener mail:
– How can my client get their side of their story across at deposition if you tell witnesses to not offer explanations when answering deposition questions?
– How often should my witness be taking a break during a deposition?
– How can I prevent my witness from getting anxious during their deposition?
– If my witness is getting argumentative during questioning, how should I handle that?
– My witness has gone through the training process but the trial date got moved back, do we need to do the training again?
– I don’t want to stress out my witness before deposition; should I tell them that we won’t win or lose the case based on their testimony?
– Are some witnesses just a lost cause?
Full Episode Transcript
[00:14] Steve Welcome to the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Steve Wood joining me, Dr. Bill Kanasky. How are you, Bill?
[00:21] Bill Always a pleasure, Dr. Wood. How are you?
[00:24] Steve Good. Good. I’m glad glad to get back on the podcast. I had to carve out some time to to get back on here, but here I am.
[00:33] Bill Crazy. It’s been total total chaos. Um, but yeah, it’s uh it’s been crazy crazy busy. But you know what we’re doing today? This is my favorite thing to do.
[00:41] Steve I know. Mine, too. Viewer mail. It’s my absolute favorite.
[00:44] Bill Viewer mail. Yeah. Or listener mail. Depending. By the way, um, our YouTube channel is over 10,000 subscribers. It’s like 10.5K.
[00:56] Steve That’s awesome.
[0:57] Bill It’s tremendous to find I can’t believe people actually want to look at us as we do this. I like listening, I can see listening to us would be really good but having to look at your mug and my mug. Oh yeah, ten thousand people I’m very confused about.
[1:13] Steve Sometimes I even hear from people though that they have to take breaks because they can’t listen to our voices anymore either though. So…
[1:20] Bill I don’t blame them. I don’t blame them. Hey, I got I got two major announcements before we start in the mail.
[1:27] Steve All right. What is it?
[1:29] Bill Okay. Number one, and you you know this, and I I have alluded to this on previous episodes, but it’s the Kanasky man cave is back. Oh, it’s beautiful. It’s officially back. It’s been like two years. I used to do the podcast over there till I got booted. It’s back. I’ve sent you pictures. Okay. Now, it’s it’s it’s a full uh gym. It’s decked out. Um, I sent you the picture uh yesterday. The uh leg press hack squat combo machine has been delivered and assembled. I used it yesterday. I cannot walk today. I had I had trouble getting out of bed this morning. I took that first step like it’s no joke. By the way, the hack squat— leg press fun, hack squat. Oh, no, no, no. It’s no joke is if anybody knows the hack squat is no joke on those quads. Uh so that’s going uh very well. It’s uh cleaned. I touched up the paint. I got my dumbbell rack uh set up and then I got um my Prime Fitness uh single stack coming which is going to give me the lat pull down and the rope capability. So that’s that’s the final piece to this puzzle. But we I am open for business over there. Um my my older son and his friends were working out yesterday. Big big deal. Um to to get my uh sanity back. Number one. Uh number two major announcement is just a big thank you. Uh I announced this a couple weeks ago on the podcast and Steve, you know this. Uh my son Dean uh did have ACL uh and meniscus uh pretty much full knee reconstruction. Uh we’re in week two. Uh so many people have reached out emailing me and texting me uh well wishes. So, uh tough road, but we’re doing well. Uh I feel terrible for this kid. Uh but man, it’s a uh it’s a beast every day. He’s got to go to therapy twice a week, but then do the uh at home exercises and stretches and soft tissue massage that I have to do with him. He’s not weightbearing, so like he’s on crutches, so it’s it’s it’s a it’s a big big deal. He has to finish his school year virtually, which is an epic pain in the ass. Uh can’t see his friends. It’s really, it’s going to be a rough summer here at the Kanasky compound. However, however, um I went out and I bought a training like the athletic training table you sit on and do physical therapy. I went out and I bought I bought a used one for 100 bucks. It’s in pristine condition. They’re just getting away from it. So, uh yeah. So, between exercise bands and weights and all this rehab stuff, my whole house just kind of looks like one big rehab center. So, it’s uh yeah— it’s good.
[4:16] Steve Good and bad. I mean, I would say that your new workout place rivals some hotels we stay in.
[4:21] Bill Oh, yeah. No, it’s better. It’s better. It’s better than New York City hotel.
[4:25] Steve I was I knew you were going to go to New York.
[4:27] Bill Yeah. Oh, it’s much much better. You you you just wait till the next time you’re in town. Because I’m going to I’m going to make you go on the hack squat and it’s not going to be it’s not going to be pretty. I can I can assure you of that. So, those are um my updates. Let’s let’s hop into some viewer/lister mail.
[4:43] Steve Yeah. So, I’m going to start right off from the top. You know they talk about, it says, “You guys talk about witnesses owning the bad facts and not trying to insert additional information into the response. However, I’m worried that my client won’t be able to get their side of the story across because we may not have a chance at trial.” I know you got some thoughts on this.
[5:00] Bill I got some. Okay. Well, listen. We work with a lot of attorneys. Um, and the vast majority of them don’t want to show their entire hand at deposition. Number one, they don’t want the full story coming out. Number one. So, meaning there’s no reason to be volunteering our entire trial strategy at deposition if it’s not specifically asked for. So, volunteering the information um I don’t think uh is going to help and many of our clients um agree with us. You we we also know that when witnesses force in information yeah but yeah but yeah but right no because no because no but they go in the fight or flight and then they can’t reel it in and then you every answer is either argumentative or it’s defensive or it’s evasive and it it looks terrible. Meaning you may feel good emotionally as a witness to get your story out. The problem is the manner in which you’re doing so is usually overplayed. You’re typically coming across in a defensive or argumentative or an evasive way. And if that’s on videotape, it’s not going to do you um any good at trial, right? And then uh uh many of our other clients’ attorneys said, “Listen, if I want to clear anything up at the end of the deposition, I can ask a couple clarification questions to get out whatever I I think needs to get out.” So, um and again, I’ve I’ve heard this kind of here and there, but you know as well as I do. Um if the witness got their entire story out at dep, that’s not going to change a whole lot. I think it leaves you vulnerable. I think it I think it allows the other side’s expert to use all that information to prepare for trial. Now, you know, if the questions get asked, they get asked, but I’m not so sure that uh you know, volunteering and inserting a bunch of additional information. I think that’s trying to win the deposition, which you and I both know is not possible.
[7:01] Steve Yeah. And I and what I always find interesting as well is that a lot of times when I talk with witnesses and say, “Hey, do you have kids?” And they say, “Yeah.” And I said, “Have you ever had your kids tell you something and they say, “Yeah, but yeah, but yeah, but yeah, but you know, they always they always laugh and say, yeah.” And I say, “What do you always think comes after the the butt?” And they’re like, “Everything after that is it’s all BS.” I’m like, “That’s exactly how you sound when you’re doing yeah, but yeah, but in a deposition.” So, you sound like your kids. So, you’re I mean, if you know what it looks like and knows what it feels like, that’s what you’re doing. And that’s what it looks like to the outside observer.
[7:32] Bill And it’s astonishing. Okay, now I’m going to go off. We’re not even five minutes into this deposition. This whole pivoting concepts, it’s it’s again it’s the most idiotic thing I’ve ever seen in my life. It’s it’s it’s crazy. It’s crazy. You you think a witness you’re going to teach a witness to outargue a seasoned veteran trial attorney? You you you really think that’s going to happen? In fact, and see you you and I you can you can talk about this, too. I cannot tell you how many times this year alone I have been called in to prep a witness for trial who was instructed to do this in deposition and it’s a disaster. The videootape’s a disaster, the transcript’s a disaster and the plaintiff attorney just eats these witnesses up. I mean, Steve, have you ever seen it work? Have you ever seen it work?
[8:30] Steve No. No. I remember you and I were just talking the other day about I was watching the deposition transcript and thought this thing is a disaster right now.
[8:38] Bill Disaster. They’re arguing over everything. Everything. They can’t even admit to basic facts. Oh, speaking of Karen Reed, you watching the Karen Reed updates?
[8:46] Steve Yeah, I was just watching it right before I jumped on here.
[8:49] Bill Are you watching the cross-examinations?
[8:50] Steve Yeah.
[8:51] Bill Oh my god. It’s like they’re pointing out clear concrete facts, right? It’s like you just this the one cop, right? You after this happened, you destroyed your SIM card, you smashed up your phone, you put it in the trash bag, and you threw it in a dumpster. Isn’t that true? Yeah, but yeah, but yeah, but yeah, but yeah, but yeah, but and he goes off and so what does the cross-examiner do? Which is brilliant. He goes, “Sir, very it’s a very, very simple factual question. I just want you to verify.” Repeats the question. Witness goes, “Yeah, but yeah, but.” This goes on for like 10 minutes. Finally, the questioner is like, “Okay, for the fourth time, I just want to verify a basic fact. This is not hard. Okay, you destroyed your phone, you destroyed the SIM card, you put it in the trash bag, and you threw it in the dumpster. Yes or no?” And the witness goes, “Okay, fine. Yeah, that’s what I did.” It’s like, “Well, Jesus Christ.” Like, that’s all you had to say the first time, right? And you’ve eliminated this 10 minutes of back and forth which just kills your credibility with the jury. Own the facts. Own your conduct because it stops. It stops there. It stops there. The moment you start running away from it or arguing with it, you just open up the floodgates to counterattack, and a good trial attorney is going to make you look silly. And the guy just looks silly silly silly on the stand. It was just terrible.
[10:17] Steve Well, I think one of the other things to keep in mind, too, is getting people and witnesses to say yes, period, is you have to identify what all those different things are, right? Too often the attorney might know it, but the witness doesn’t know it and then they when they hear about it the first time, even though you tell them to own the things, they have that visceral reaction, and they go into fight or flight anyway. So, it’s going to a point of like taking the time to point out the four, the five, the six things that they better be ready for and then let them yeah, but yeah, but yeah, but because they always do in the training, they always yeah, but yeah, but yeah, but there and then you just get them to the point where they get the yeah, buts out then rather than getting it when they have to actually have to testify.
[10:55] Bill You want to mitigate the damage of bad facts, right? Own the facts. We’ve seen this in our mock trials, okay? I mean, in focus groups, jurors respect people that own their decision-making and conduct whether it’s good or bad. Society’s very forgiving if you just own it. It’s when you deny it, deny it, deny, you’re you’re dancing around it. It’s just that’s where the credibility goes out. So, if you want your witness to maintain their credibility, they’ve got to own the facts. They can’t run. They can’t you can run, but you can’t hide. And the perception of that is what ultimately kills your credibility in the end.
[11:37] Steve Yep. Good one. All right, we’ll move on to the next. I always tell my witnesses that we will take a break every hour. Should we be taking a break sooner?
[11:46] Bill Duh. I mean, I wrote a paper on this in what 2019? Yeah. And so, there’s there’s, you know, there’s there’s two reasons for this. So I I’ve established through I mean I went through all the you know neuroscience you know literature and it’s crystal clear that on a on a on a focused task that um for example testimony right a focused task right so you’re going to see natural decreases in attention and concentration due to cognitive fatigue at roughly the 45 minute mark. So, any breaks that go after 45 minutes I think is is pretty risky. And Steve, why don’t you talk about how Zoom depositions have we’ve learned that those wear down witnesses even much faster actually than in person depositions.
[12:35] Steve Yeah, definitely. Zoom fatigue is a real thing and I’m sure a lot of our listeners and and viewers have had that now that with covid everybody’s on Zoom all the time and the longer you’re on the more it strains your eyes the more you get fatigued and you know you just get tired a lot quicker than you would if you were in person. So even in in a Zoom situation, you probably should be taking breaks if not sooner than 45 minutes.
[13:00] Bill Yeah, I hit I hit that at 40. Get another extra five minutes because yeah, the technology just really melts your brain, and you should all read up on it because it’s really incredible how much work the brain has to do virtually as opposed to in person. Whole different ball game. So, the so what we find out, and this is where where the Zoom or in person when you’re giving the witness the every hour break they start making these silly fatigue-based mistakes. Yeah, you know 45, 50, 55 minutes. I’ve seen a couple couple of the recent deps. Ever you ever get a dep from a client? They send it to you like for trial prep and then you start looking at the clock and you’re like we’re at an hour and 15 minutes.
[13:47] Steve Yeah.
[13:48] Bill This poor this poor witness is just done. And they’re still going. And they’re still going because I think so so one of the things is what you always tell the witness. It doesn’t work. By the way, this what I’m about to tell you does not work. If you ever tell the witness, “If you need a break, ask. Tell me.” They’ll be like, “Okay.” Yeah. Witness brains like, “I want to get the hell out of here.” Like, “Let’s get this effing thing over, right?” They’re not gonna, they don’t really, most witnesses don’t have the capability to self-monitor like that. So, you trial counsel, you need to have that stopwatch on your watch or your phone and be pre-planning these breaks and take the—Here’s the whole key to everything, Steve—Take the break before the witness gets tired.
[14:28] Steve Exactly.
[14:29] Bill Don’t wait until the witness gets tired and then take a break because you’re leaving them susceptible. And then Steve, why don’t you also talk about what people should and should not be doing during breaks because I’ve seen crazy things during breaks. For example, if during the break your witness is returning phone calls and answering emails and texts, that’s not a break, is it?
[14:46] Steve No. And that’s what I always that’s what I always tell witnesses too. Especially if you have people who are higher up in in corporations and companies is that you’re off for the day when you’re being deposed. For all intents and purposes, you’re off. Nobody should be calling you trying to put out fires. You shouldn’t be trying to answer emails. They you should just be for all intents and purposes in a black hole because as you and I both know, how many times have we been in the middle of doing something and we get an email, we got to put out a fire. What happens? You get distracted and now you’re thinking about the fire you got to put out rather than what you’re actually focusing on. So, trying to eliminate any sort of distractions for your witnesses and giving them actual breaks. And we’re going to talk more here too about things they should be doing on the break as far as like breathing techniques and all that if if needed. But definitely don’t be answering emails. Don’t be doing that.
[15:31] Bill Yeah because then you come back from the break and you’re more tired and distracted than you were before the break. Yeah, it makes no sense. So, you got to put those parameters around the witness.
[15:41] Steve But definitely the I think the definite thing that we see though is that is that battle with 45 minutes that I think some people adhere to but then other times everybody’s so accustomed to the hour break and that they go to an hour but a lot of times it’s too late right going back to you’re saying is they’re already anxious they’re already fatigued before that that before they even get a chance to get a break and then they’ve come too far now you got to try to reel them back in which is difficult.
[16:08] Bill 100% and then as that deposition goes on if you start lengthening thing that time period they they fatigue even more. That’s why you see so many witnesses crash and burn the second half of deps is the the fatigue is compounding because they never got enough breaks beforehand. So, you know, maybe on that first hour where it’s not, you know, crazy a lot of background questions stuff, maybe they don’t fatigue as fast, but then the second hour, the third hour, the fourth hour, that’s when it all catches up to you. So, it’s 100% preventable. And another thing I’ve heard which I I just think is silly is I’ve had a couple defense council go well I don’t want to tick off the plaintiff attorney.
[16:44] Bill I have heard that too.
[16:45] Steve Yeah. Who cares? It’s it’s it’s your dep, your witness, say we’re taking breaks every 45 minutes because I said so. What are they going to do? Say no. And by the way and by the way how does the dep start? The plaintiff attorney right goes through the list of, “If you don’t understand a question tell me. I’ll re ask. Right? If you don’t know, you don’t know.” All the all this stuff, right? You don’t remember. And one of the things is if you need a break, just say so. I’m happy to give you a break. So, take take full advantage of that because then if they go, well, wait a second. You know, it’s only 45 minutes. Well, you told me whenever I need a break, I need a break now.
But I think I think it’s important for the defense counsel to prompt the break to going, “Hey, do you need a break?” Yeah. How about it’s time for a break? Yes. Yes, it is. And uh yeah, the other side’s going to figure out what’s going on. Tough. They want they want to— this and— fatigue is the oldest trick in the book. Wearing down the witness. It’s been around forever and it works. So, interrupt that process by inserting the breaks uh at the right time and not letting your witness get worn down.
[17:50] Steve Yep. Good one. All right. And moving similar to this, what we were just talking about, I was worried that my witness was going to get anxious during the deposition. We worked on alleviating the anxiety beforehand. However, when they got into the deposition, they still got anxious. What can I do next time to prevent this?
[18:08] Bill Yeah. I mean, this is a common problem, right? So, you know, there’s a couple different things. Um, the appropriate amount of training is designed to minimize the anxiety, right? And so, if you have a witness that’s bouncing off the walls and uh they’ve been through some prep and some training and it’s they’re clearly not ready, they need they need more prep and more training, right? You can’t send them in, you can’t do half of the project then send them in there and not expect them to, you know, not get nervous. With any type of anxiety or nervousness, the only thing that reduces anxiety and nervousness is repeated exposure to the negative stimulus. It’s the only thing. It’s the only thing. There’s not there’s there’s nothing else. Well, I guess drugs, right? Drugs. So, you can’t drug up, you know, you can’t be giving your witnesses Adavan or beta blockers before the the dep. I I suppose that would decrease anxiety, but they’re going to be it’s a different problem. So, how would you naturally decrease that? Well, number one, start your witness prep way early and identify your anxious witnesses because some are going to be more anxious than others. and then do I would again I would do more prep sessions that are shorter to repeatedly put them through the process expose them to these variables right which will then naturally bring that anxiety down because if you’re doing all the prep Steve right before the dep, a week before the dep, that and that that initial you have to understand witness training and you know this as well as anybody it always gets worse before it gets better every single time.
Let me repeat that. It always gets worse before it gets better because that’s their first, you know, their brain is seeing all this stuff for the first time. They’re getting challenged on certain things. Their brain’s going to have the most intense response to those first couple of exposures. So, if those first couple of exposures are right before the dep, there’s no time to desensitize and extinguish that response. This is this is operant conditioning 101, right? BF Skinner would be proud.
All right. So, what do you do? You back up your timeline. 30 days would be nice at a minimum and start that process early. So, then all those all those anxiety responses will come out early, right? And then you’ll start to see the decline in the second half of that. So, as you’re approaching dep, you should be in good shape. And here’s the thing. If you’re not in good shape, you still have time. You still have time to, you know, to to work on things. During the deposition, you know, if you this is, you know, back to breaks, right? If you notice your witness, right? Um, getting too riled up, uh, getting too anxious and nervous and, uh, you see those signs of, then call for the break. Right. Right. I mean, it’s it’s um you you you can and and and should do that. And you’ll see some witnesses um um you know, it’d be nice if the witness can be trained to, you know, self-monitor. Some of them can. A lot of them can’t because they’re too caught up in the moment. But you, the attorney, defense counsel defending the deposition should be watching your witnesses like a hawk, right? So, what what are some of the things? Well, if your witness starts increasing their rate of speech, sign of anxiety. They stop pausing and they start answering questions quickly. Sign of anxiety, right? If you notice them kind of stuttering their words and um um uh uh all that stuff, sign of anxiety. They may have physical signs of anxiety where their facial expression changes, the tension in their neck and back and muscles in their arms. You’ll you’ll see that. You have to be ready to identify that. and then pull the plug, get them out there, and then you can talk about some of the things you can do during the breaks to get them back down the baseline.
[22:13] Steve Yeah. I mean, and a lot of times it it’s really dependent on the witness, too. Some witnesses will take to this type of stuff, others won’t, but you know, a lot of times I I talk with witnesses about breathing techniques, visualization, um being kind of present in the moment, kind of doing things to get more into your body. Now, like I said, you have to be cognizant of some people are going to take to it, some people aren’t. Um, but a lot of times I I talk to them and let them pick whether they are or aren’t going to do it, but at least you’re giving them the tools, and the skill set to do something to help alleviate that anxiety. And I think the other thing it does only not only is it helping to relieve the anxiety, but it also builds rapport with you and the witness, too. Because I’ve done it with a witness. I remember I think I told you about this a couple weeks ago where I worked with a witness who was so nervous that he was actually sweating and visibly shaking in the middle in the middle of my cross. We called a timeout and I just sat with him for 45 minutes and we just talked uh and just talked about what was driving his anxiety and they I you know we we took the attorneys out of the room and we just talked not about the case but just talking. Uh and and he said that that was the most beneficial portion of the whole training was just doing that.
[23:19] Bill Therapeutic. Yes, it’s therapeutic. And that’s why you don’t want to do this right before the deposition. And you do it early so you catch this stuff and then you can give the witness home—I mean, Steve, how many times you give the witness homework assignments to practice breathing techniques and stuff like that. Now, everybody at this point listening to the podcast is going, “Oh, boy.” Now they’re rolling their eyes, right? Oh, no. He’s talking about deep breathing and zen stuff and meditation. Let me let me let me share something with you. Every—Let’s go— It’s baseball season. Cub’s off to a pretty good start.
Listen, they’ve been giving the Dodgers a lot of trouble. So, this is that that’s a good thing, right? And Steve, you’re the baseballer. Every single professional baseball player is taught the exact same techniques. Pitchers are doing it between pitches. When batters step out of the batters box, they are doing their mental training every single time. golfers. Another—What do you think a golfer is doing before before the 15 foot putt? What do you think they’re doing? They’re doing their breathing and their mental training before the putt every single time. Professional athletes, Steve. So, and that’s that’s how I sell it to the witness is I’m like, what I’m going to teach you is what professional athletes do to keep their head straight during intense competition.
Right. That’s exactly what we’re teaching. It’s the exact same thing that a sports psychologist would do with a professional athlete. Correct?
[24:54] Steve Yeah. And I’m glad you called it so everybody’s rolling their eyes because that sometimes is the is the reaction that you get is this this sounds kind of foofy foofy new age zen. But to your point, a lot of successful people do it. I mean, hell, I even do it uh before speeches. There’s times that I do it in other instances as well. So, I kind of say that as well to say you’re not the only one doing it. In addition to athletes. I myself use it. So, it helps to normalize it a little bit.
[25:21] Bill There’s a ton a crazy amount of science behind it. Hence why all the professional athletes do it. So, uh yeah, we can teach witnesses um those skills if needed. Not every witness, you know, needs it, but particularly your anxious ones because as you know, you know, once the anxiety kicks in, it’s really hard to get it down. If it kicks in intensely and then that negative thought process starts which then fuels the anxiety, it could be a nightmare. And that’s what the athletes go through. I mean, Steve, how many times have we seen a pitcher in Major League Baseball get yanked in the fourth inning because they gave up a home run. Now they can’t find the strike zone. They’re they’re pissed off. What does the coach do? You’re out of here. Goes right to the bullpen. Now, the pitcher’s not physically tired. No, they’re mentally gone. They’re anxious. They’re upset. Emotions kicked in. They’re in fight or flight. And now they can’t find the strike zone. Gone. Done. Over. Same things happens with with the witness, right? So, there’s ways to prevent this. Again, start earlier in your witness prep. Introduce this stuff early and you’ll be shocked how productive it can be.
[26:33] Steve Yeah. And one more thing before we go off that topic too is is if you know your witness is going to be anxious and you need more time with them. You have to fight with whether you have to talk with the client or do something say this this person needs more time because I think that’s one of the other things that you and I have run into where we know the witness needs more time. We know the witness is going to be anxious and either the attorney can’t get the time or we don’t have the time, whatever. Then they just go in there and then lo and behold they get anxious and it’s like what did you think was going to happen? We knew they were going to do that.
[27:02] Bill Everybody’s like, well, how long is this training going to take? I’m like, I don’t know. I’ll tell you once we get started. I can tell the average time, but every every witnesses is different and and some need more, some need less. It’s all psychology, Steve. It’s all psychology.
[27:18] Steve Yep. Not no legal aspects whatsoever. It’s all psychology. It’s all it is. All right. Moving on to number four. My witness is getting argumentative and upset during mock cross-examination questions. Is it best to take a break or keep asking questions to help desensitize them before their deposition? I think that’s an interesting question. There could be a couple different ways to look at it, but I want to hear what your thoughts are.
[27:40] Bill Okay. Well, let’s look at it scientifically. How about that? I think that’s best way to look at things. Let’s not get clever. Let’s look at what science, right? So, you have someone that’s exhibiting a negative behavior and you want to decrease that negative behavior. This is operant, again back to operant conditioning 101, right? You have to punish the behavior as soon as possible to decrease future occurrences of that behavior. Okay? Meaning, if you want somebody to stop doing something, don’t let them make the same mistake for 45 minutes and then say, “Oh, by the way, you you’ve been a nightmare for the last 45 minutes. Let me tell you why.” After they’ve kept keep making these mistakes. If we if we’re gonna take a scientific, you and I wrote a paper on this for crying out loud.
[28:33] Steve Yeah.
[28:34] Bill I mean that you intervene immediately immediately versus laying there letting them because here’s the thing, right? If you let them continue to make the mistake over time, what are you inadvertently reinforcing?
[28:47] Steve The mistake.
[28:48] Bill The mistake. Yeah. The mistake. Because the brain’s like, “Well, you know, Steve’s not yelling at me, so I guess we’re okay.” No.
[28:56] Steve Right.
[28:57] Bill I mean, right, you’re sending the message of, “Yeah, this is okay and acceptable.” And so, when the moment that starts immediate intervention, now the punishment, right, punishment, we’re not going to beat up the, we’re not going to beat up the witness physically, but there does—So, punishment in witness training is constructive criticism to identify what’s going on, identify where the emotion is coming from, right? Identify the mistake, work through it, back up that train, and then restart. Letting them go through the that’s not desensitizing them to anything. It’s actually reinforcing the mistake, which is the exact opposite of what you want to do. Desensitization has nothing to do with uh there’s no linear time aspect to desensitization in that in that respect. You want to desensitize witnesses from say um aggressive or manipulative tactics by exposing them to that. But you it just take you don’t have to expose them to that, you know, for 45 consecutive minutes. Have them fail for 45 consecutive minutes. That’s not going to desensitize um anything.
[30:10] Steve Yeah. That’s like some teaching someone to swim rather than putting them in the shallow part and letting them kind of wade in. You just kind of throw them in the deep end. See, because you got to get desensitized. You got to learn how to do it. Sink or swim, right?
[30:20] Bill Yeah. And then and then and then and then not and then not helping them, right? For 45 minutes, right? Thinking they’re going to learn. No, no, no, no. That’s that’s that’s that’s not smart.
[30:30] Steve Yeah. Agreed. All right. Number five. My witness has gone through the training process. However, the trial date just got moved. Do we need to do the training again? This is always an interesting question, right? Um, we’ve already gone through it. We have more time. They’re good. They’ve already went through it. They don’t need it again.
[30:48] Bill Yeah, this a great this is a great question. Um, the answer is yes with the with with the caveat. So, we’re well prepared for this like because we Steve, how many deps get bumped? I mean, it’s an annoying number, right?
And so, what we do is we have them ready and then say it gets bumped by a couple months, right? Or several months, right? So, then what we do is we plan booster sessions, right? So again, back to psychology, if you want them to retain that information, right? They’re going to have to have repetition to keep their skill set up. And so, what we can do is set up whether it’s one hours or three hours, right? There’s a couple different ways we can do it. Do those booster sessions so that they maintain the skill set and the knowledge that we’ve given them in the previous sessions, we can we can maintain that over time. The last thing you’d want to do, well, there’s two bad things that here’s what you don’t want to do. Number one, you you don’t just want to say, well, you’ve been trained, okay, in in three months, just remember everything we told you the last 30 days. That that’s not going to work. There’s going to be a decay, right? There’s going to be a memory decay in the skill set. They won’t have their skills uh sharp or up to speed, and they’re going to struggle if that happens. Or, don’t let three months go by and then the week before the dep say okay let’s do the booster session now because now you’ve had the three so now you’re kind of I’m not saying you’re starting from scratch it’s just not necessary so say if you had a couple months I’d say okay every three weeks let’s have a one hour zoom just to keep everything fresh boom and then that will maintain it up until the dep.
[32:21] Steve Yeah and I’ve been doing a lot of that much more often now and it’s surprising how when you start to do that. They actually keep some of that knowledge base, right? Rather than—
[32:35] Bill It comes right back. Yeah, it comes I mean it it comes right back. But you it has to be done on a regular basis because once you know weeks and weeks go by, there’s a natural, you know, out of sight, out of mind, right? I mean, that that’s kind of what it is. And so, uh, easy. It’s it’s a very easy workaround. It just requires some booster sessions.
[32:55] Steve Yep. All right. Number six. I don’t want to stress out my witness before a deposition. Should I tell them that we won’t win or lose the case based on their testimony? This is another common thing I see that comes up cuz I I you know, a lot of times the attorneys don’t want to stress them out. They just basically tell them it doesn’t really matter what you’re going to say to help alleviate the stress of the the witness. However, I’m sure there’s a caveat and I’ll let you tee off on this. The caveat to the thought process of you’re not going to win or lose a deposition, so don’t worry about it.
[33:26] Bill Yeah. Um, so this we see this with almost every witness I think is is um you have to have the right objective, right? And you know we just had March Madness uh survive in advance, right? That that means you just you want to survive uh this process. You don’t want them to do any damage. They’re not going to win the case in deposition. Uh we all know that they can absolutely lose it though, right? I think you got to be honest with the witness on that. I think that’s one of the first couple things that we tell them is listen, you’re not going to win this stuff. So, don’t don’t try. Number one. Number two, you actually you you can lose it. You you can lose it. We’re going to show you exactly how you’re going to lose it, and we’re going to train you not to lose it and to educate them on on what the uh objective is. I certainly don’t think you should tell them, well, it doesn’t really matter either way. Everything’s going to be fine. No, it’s it’s it’s not. It’s a difficult discussion, but again, if you’re starting your witness training early, right, and you’re at least 30 days out, that’s the time you want that anxiety response, right? I mean, they need to know, you know, what’s going on in the case, um how important their uh testimony is, what the true objectives are with the, you know, strategy, where do we want them to be on on uh on on on certain issues. And so, um, I, so I think it’s just a balancing act, right?
[34:52] Steve Yeah. Yeah. And that’s what I was going to go like I think you don’t want to overstress them out and make it sound like it’s the end of the world, but at the same time, I think you’re not being honest and fair with them if if you tell them that it doesn’t matter at all either, though.
[35:02] Bill So, yeah, I think the balancing act is to say, listen, there is no such thing as a perfect deposition. You don’t have to be perfect. You just need to be close. You just need to be close, right? And there’s and and and and talk them through that. But to tell them they’re definitely every witness is going to make some mistakes. That’s that’s not the issue. The issue is when you’re making repeated mistakes. You’re making the same mistakes and you’re making catastrophic mistakes. So, the biggest way remember this is my my new phrase, yeah, if you want to prevent a problem, expose the problem, right? If you want to prevent a problem, expose the problem. And literally tell them the things that can happen that will ruin everything, right? And so, you can come up with various examples of those on what it’s really more of what not to do. Okay. And to also tell them uh I think maybe the bigger issue, Steve, is the um you know, something that also needs to be discussed because some of these witnesses they feel like the weight the weight of the company, right, is on my shoulders. This happens a lot with the corporate reps, right? Like I have so much pressure—like I I have to perform or I’m letting down the company or some are the even the I have to perform or I’m getting fired. Yeah. Right. There’s a lot of kind of illogical uh you know thoughts that you know that can crop up. You and I wrote a paper on that too with the cognitive distortions. So, I think getting their mind set on what the true expectation is uh will take off will take off uh a lot of pressure. They’re not going to be able to answer all the, A) they’re not gonna be answer all the questions to start. They’re not going to know everything. They’re not going to remember everything. That’s okay. I mean, how many I mean, how many times have you been working with a witness, Steve, and they can’t remember something or they don’t know something and they start kicking themselves in the ass? Go, “Oh, man. God, I should I should know this. I’m an idiot.” It’s like, “No, stop. It’s okay if you don’t know something.” Now, the caveat to that is if they’re the corporate rep or the PMK or the PMQ and they’ve been told what to know that’s always prior to the dep, well, yeah. The one thing you and I cannot do for witnesses is is read documents and study, right? They’ve got to do that. But for, you know, for for fact witnesses, they have to understand this is not a Guantanamo Bay waterboarding session, okay? It’s not. They don’t have to have every answer to every question. Some answers will be I don’t know or I don’t remember. And that’s fine, but we have to work through that to see what do you really know? What do you remember? And they have to they have to be okay with not having all the answers and not feeling bad about it.
I just uh the new uh one of the new videos um that you shared with me with the with the woman that totally takes the bait. So here here’s the here’s the setup. So the the the plaintiff attorney asks a question to the witness. The witness legitimately says, “I don’t know.” His response to that is, “Whoa, whoa, whoa, hold on. You don’t know. That’s your answer?” And what does the witness do? Blah blah blah blah blah blah. She goes on for like two minutes in this fight or flight just spewing out information because she feels bad about not knowing and it’s like she wasn’t okay with not knowing obviously right and that’s one of those things where that’s a psychological fight or flight response they have to be trained for that so she gave a completely legitimate answer the cross-examiner set the bait out there and challenged her. “Wait a second. You don’t know?” And all she had to say is that’s correct. That’s my answer. Right. And then he goes he goes away, right? But no, no, no. He he he he used the uh the threat tactic and said, “Wait, you don’t know. What do you mean you don’t know?” And the moment he did that, boom, fight or flight. She’s off and running and can’t shut up for the next two minutes. And it became panicky. It it was just it was just a disaster. So, there’s just another example of expectations of of of the witness. It’s okay not to know something. It’s okay not to remember something. But every time you say that there’s going to be a counter maneuver. This is what you and I call counter maneuvers. This is what cross-examiners do. And sometimes they say, “Wait a second. You’re hold on. You’re going to sit here and tell me you don’t know.” That’s a that’s a classic one. It’s a classic one. And if a witness is not ready for that, they’re going to go into fight or flight and then they’re going to say anything to take away the pain of not knowing and then they’re going to say something harmful.
[39:59] Steve Yep. You know, and one other thing I wanted to talk to you about kind of getting witnesses comfortable with the idea of being open and honest and transparent with them. I think one of the things and I want to, curious to get your thoughts on, as far as having witnesses, whether they be corporate reps and even some fact witnesses be at least informed on kind of the the trial strategy, kind of what the case facts are, what the theories are. Because I think too often we see these witnesses come in and they don’t really know how to put all the pieces together, the questions, how one question leads to another question, what the theory of the case is, what our theory of the case is. They just are unclear about all that. So, what are your thoughts about as far as informing them and getting them on the same page?
[40:35] Bill I think that I think that’s critical because another kind of misconception is, so you have to educate them on hey there’s multiple witnesses out out there for us. Okay. Your role is is here. You have to carve that out. But to understand because you’ve seen this too. They ask a witness about a different area that somebody else should be testifying about and the witness really doesn’t know the answer to say, “Hey, we have other witnesses to take care of that.” For example, if they’re asking the HR director questions about safety, the HR director should be saying, you know, I can’t that’s outside of my scope and my training and my knowledge. You’d have to ask somebody over in safety, right? And know that they’re not responsible for everything and know the strategy when it comes, you know, to things like that. And then there’s kind of a internal there there’s like an internal strategy for that witness. But then there’s the broader strategy across all the witnesses. Yeah. That needs to be blueprinted out because I think a lot of witnesses, you and I see this every week, they get baited into answering questions that somebody else should be answering and they go ahead and answer the questions anyway, which which can lead to disaster.
[41:54] Steve Yeah. Yeah. And I think it’s because they don’t know who else is going to be carrying the water, so they assume that it’s supposed to be them. You know, so letting them know. I think the other thing too is you get a lot of buy in from witnesses because then they feel like they’re part of the process versus you guys called me out of the blue, told me to come in.
[42:09] Bill Exactly. Exactly. And so, when this stuff comes up, you say, “Hey, when these questions come up, you can punt the ball, right? Joe in safety, Joe over in safety is going to answer all these questions on the safety manual. You don’t have to answer those.” But they need to know it’s okay for them to defer those questions to somebody else and not feel bad about it because they will be challenged on it.
[42:30] Steve Yep. All right. Last last question on this. Are some witnesses just a lost cause? Should I expect a witness to go from a D to an A before a deposition?
[42:41] Bill I got this question at dinner uh on Monday evening. Um for the most part, Steve, um I I’ve trained thousands of witnesses over two decades. Very few witnesses are a lost cause. Very very few. There are a few that are and there’s specific circumstances that and and categories those fall into which we can get into if you have time, but that’s kind of a whole separate podcast. Um, but for the most part, I deeply deeply think every witness can improve. I think the difference is everybody has different ceilings, right? Some people can absolutely can go from a D to an A. That’s 100% possible with some people. Other people maybe a B minus is their ceiling or a C a C plus and you’re going to figure that out through the the training process. And every I said so I’d say can every witness improve? Absolutely. Um are they going to have different ranges of improvement, different ceilings? Absolutely, too. Because uh again, everybody’s different. Uh and some barriers are very very difficult to get over. Um, and there’s again several examples of of this, but everybody’s got to have a different ceiling. But I every every single witness with very very few exceptions can improve and just to determine like where is the witness’s ceiling. Now we we you and I have unfortunately sometimes don’t educate uh our clients enough about this to because they they’re expecting clients want perfection, Steve. They want every D to go to an A+. And if they don’t get to an A+, they’re like they’re mad. So, you have to educate the attorneys, even the corporate client to say that’s not the goal here. The goal is to maximize the witness’s performance. And the max may be a C+. It may be a C+. Whereas a different witness is going to be a B minus or an A or, you know, it’s going to vary.
[44:44] Steve And I think that’s the key point, too, is you might get them up to a C plus, but that’s the best you can get. But I also don’t like the idea of this this witness is a disaster. They’re a train wreck. We went through the training one time. They’re not going to be any better. We don’t expect them to be any better. So, let’s not do anymore and just cut bait and just just going to go into the deposition and whatever’s going to happen is going to happen.
[45:07] Bill No. In fact, in fact, um because I gave I I gave a speech uh on Tuesday to a very large company and all this all their attorneys. Uh it was a really good speech, and you know this you know this this this this stuff came up and the purpose—this is this is what many people don’t get until they go through it. The entire purpose of our witness training program is to get the witness to fail miserably. Let me say that one more time. The entire purpose of the witness training program is to get the witness to fail miserably because that’s the only way you’re going to identify their true weaknesses and vulnerabilities and then be able to train them, so they grow into better witnesses. The only way you you you have to break that witness down. They have to fail miserably before you can rebuild them. Because if you’re building on a fallacy foundation, forget about it, right? And so, yeah, there’s been several of times where the training starts off very rough. I think that’s the greatest thing in the world because now you’ve you’ve identified where all the issues are. You now listen, you could sugarcoat it, right? You could sugarcoat everything and then never identify the true weaknesses. Then they’re going to go to dep, and the process is going to be smoother, but the dep’s going to be a disaster. They have they have got to fail miserably during the first part of the training because that’s the only way that they’re going to grow and be able to you you can you can rebuild them. It’s the only way.
[46:56] Steve Yeah. And and like I said, going back to what we talked about earlier is some of them will need another session.
[47:00] Bill Yes.
[47:01] Steve Some of them won’t, some of them will. But I just don’t think you can look at as the cookie cutter of okay, we’re only going to do x amount of sessions with every witness, but if we know one’s going to be worse, we’re only still going to do those x amount. Like that person might need more and another person might need less and that and that’s okay.
[47:14] Bill Yeah. I tell what I tell most attorneys now is like here’s the minimum we’re going to like we’re going to know after x number of hours, right? Where we need to go from here. And then sometimes you’re like, hey, you know what? No, we’re good. Or they they’re going to need one more booster session right before. Other times we’re like, “Nope, we we found something pretty major here.” We, for example, we found the witness has this deep resentment that we no one ever knew about. Boy, now it’s going to take time to work through that. Otherwise, they’re going to torpedo this case, right? So, you’re going to find things along the way. You’re going to expose these weaknesses and these uh weaknesses and vulnerabilities and and that’s actually a really really positive thing because then once you identify those then you can design the program of training to um prevent those things from rearing their ugly heads uh during the dep and then come out on top. It may need some you may need some extra time.
[48:08] Steve Yeah. Yeah. I agree 100%. I’m not going to dive too much into it because uh Linda Linda and I are going to come on and do another podcast after we wrote our 360 paper. So, I’m going to save that. That’s a whole another podcast topic in and of itself about identifying all these issues and what to do with them.
[48:25] Bill Well, yeah. Well, listen. I mean, listen, my kid, uh, again, you we’re on week two of a nine-month rehab program, right? And there’s going to be a point where they’re going to do some testing. You know how this goes, right? They’re going to do some testing on him to say, is he ready to start running or is he not ready yet? What are they going to do? They’re going to do EMG strength testing, right? To literally measure, okay, um the, you know, frequency from the muscles. They’re going to do strength testing. How much weight, you know, can he lift on, you know, quad extensions and leg curls. You got to meet minimums to get to that next level. I mean, there’s no way in the world that they’re going to be like, “Okay, well, we’re at nine months. He’s good.” And they’re not going to test for that because they may come back to you and say, “You know what? That quad is not firing the way we want to yet. Needs another 30 days of therapy. Right? That’s exactly how we do it with the witnesses. We have our goals, but we’re going to assess, reassess, reassess, and if they’re not meeting, if they’re not where they need to be, we’re going to be wide open and say, “No, we’re not there yet.” Just like the ACL tear, we’re not there yet. We need more therapy. And then they will get there because if you cut it off too early, right? What’s the chance of a retear in an ACL that you haven’t fully rehabed?
[49:44] Steve Right. Exactly.
[49:46] Bill 80%. Right. Well, so we don’t want to do that with the witness.
[49:49] Steve Yep. All right. Good conversation. Glad to glad to get on here and talk to you. This, like I said, that this is always one of my favorite things to do because we always kind of get these questions and we get to answer a lot of them that I’m sure that come up often and have other people have these these questions themselves. So, yeah, always enjoy that.
Well, we’re going to cut this loose. This might end up being a two-parter. Um, this kind of time flew when we were having fun. So,
[50:09] Bill How long we’ve been going?
[51:12] Steve It’s It’s been a while. I I lost track. Probably close to an hour.
[50:15] Bill Yeah. Yeah. We’ll see. We’ll check with our our our our producer to see if he wants to break this into two parts. But, you know, if we have to, if we have to we have to, but I think all these questions were really uh important. They were very all of them were very witness focused, which I think is uh which is a good thing. But, Steve, you know, you and I, we we see these things we see these things coming up week after week after week and so you got to deal with it, right?
[50:41] Steve Yeah. All right. Well, I appreciate everybody joining us for another edition of Litigation Psychology Podcast. Make sure you go to YouTube, like, subscribe, get some more uh YouTube subscribers, give us a thumbs up, five-star reviews, leave us a review on any of the different podcast apps. We always appreciate any of the input and appreciate everybody who who has left us emails and comments and stuff. We we really enjoy.
[51:04] Bill Yeah, I think the reviews are really important because I mean we’re in year five. We’re doing something right. Okay, number one. Number two, I want to make this very clear because this has happened kind of naturally, Steve. I know it’s happened with you. I think this is great and we don’t charge for this. I’ve had multiple multiple listeners reach out with questions. Hey, I’ve got a witness. Here’s what I’m dealing with. Can you talk to me for 20 minutes? Yeah. Yeah, call me. Yeah. Or set up a Zoom. We’ll we’ll talk. You have questions, call. Or I I want I have this voir dire issue, right? I I want this is what I’m trying to tap into. How do I ask? Call us. Email us. We’ll we’ll help you. I mean, we’re not I mean, you know, you need help help, yeah, then you may have to retain us. But if you just have questions, nothing wrong with that. Reach out.
[51:50] Steve Definitely reach out. You can find at bkanasky@courtroomsciences.com or swood@courtroomciences.com. Join us for another edition of Litigation Psychology Podcast brought to you by Courtroom Sciences.
Be confident in achieving superior litigation outcomes. CSI has the expertise, track record, and capabilities to help you win.
