Episode #290 – The Power of “No”: Achieving Strong Witness Testimony

Bill Kanasky, Jr., Ph.D. breaks down why the single most powerful testimony tool in depositions and trial is the disciplined use of “No” or “I disagree”, followed by silence. Bill explains how witnesses get into trouble when they add explanations after a comma (“No, because…”), which leads to defensive or evasive answers and creates damaging credibility issues. Instead, he emphasizes a strategy rooted in cognitive science: reject the premise cleanly, elevate tone and composure, and force opposing counsel into an open-ended follow-up like “Why?”, which gives the witness more time to think and respond from the logical (not emotional) part of the brain.

Bill also clarifies common misconceptions about witnesses who answer with “No” appearing evasive, why jurors dislike pivoting or arguing witnesses, and how “reject and elevate” protects credibility while maintaining emotional control. He explains how witnesses can later provide explanations, during defense follow-up at deposition or rehabilitation at trial, without exposing themselves to attack when they’re under pressure.

Full Episode Transcript

[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Uh, Dr. Bill Kanasky here. Um, this is going to be a little bit of unusual podcast because, boy, has it been a morning. Good God. So, by the time this gets posted, so this will get posted in mid-December. So, today, today’s, as I’m recording this, is um, Black Friday and I didn’t even make it out of my driveway. Let me tell you this story. So, I go out, I got a flat tire. I don’t know what happened to it, but it was not good. So, um, now if you, now this is one of the problems I do have with, um, definitely millennials, um, and Gen Z. If you don’t know how to change a tire manually by yourself, okay, you, you’re going to have to figure this out. All right? I’ve changed many of tires. I’ve changed tires on the highway. And let me tell you what, this, I’m out of, I mean, I am in elite physical condition for 52 years old. And let me tell you that that just kicked my ass. Now granted, it is a Dodge Ram truck. You know, I’ve had like a Prius rental car or a tire blew. Boom. I’m like NASCAR pit crew on that. You’re dealing with a, with a uh, a truck, big, I have medium-sized truck. Damn. My back hurts, my neck hurts, my arms hurt. That was rough. But folks, you gotta learn, you got to get know how to change a tire. Okay, I know everybody has AAA and all that stuff, but really it’s like part of life. You don’t know how to change a tire. There’s like, you know, come on. Come on. Got to toughen up here.

[02:08] Bill So, I’m coming into the podcast uh, with like multiple stressors, right? Uh, made it through Thanksgiving without uh, any like knockdown dragout family arguments about politics or religion. Check that box. I did not overeat. I was very good. Check that box. I actually uh, got a full uh, uh, back workout in prior to Thanksgiving dinner. Check that box. Everything was going great. Get up Black Friday, can’t even get out of the driveway. And this tire, this tire is not fixable. And you can’t just replace one tire. That’s another life, life lesson. That’s what the universe does to you. The Matrix. Yeah. If one of your tires has an issue, you can’t just change that tire because it throws the other ones off. You got to change at least two. So, I’m going to be dumping money Monday morning on uh, new uh, back rear tires for my truck. And um, if that’s the biggest problem I have, I’m okay with that, right? I’m okay with that. It’s all perspective, folks. So, I was going to record this podcast a couple hours ago, but no, I’ve been in the driveway working, but now I’m here. So, let’s crank this out.

[03:43] Bill Um, holiday uh, season. Uh, I think we’re in the middle of holiday season here, December. It was 43 degrees this morning in Florida. Everybody’s going nuts in the house. Turn on the heat. Put on the Weather Channel and boy, up in the Midwest they’re getting clobbered. And then Northeast, Buffalo, Syracuse already getting clobbered. I think it just snows year round there. But uh, Chicago, Milwaukee, Madison, Minneapolis. Oh, it’s, it’s supposed to be uh, 8 to 12 inches of snow coming. That’s going to be fun for that the Thanksgiving uh, uh, traffic on the way home. That’s going to be really fun. So, um, I’ll take the, I’ll take the 40, the 43 degrees and sunny here in Florida.

[04:39] Bill Uh, okay, let’s crank out a quick uh, podcast today uh, as we wrap, we’re wrapping up for the end of the year. Almost to episode 300. Trying to figure out what I want to do for that. Um, but let’s talk about the power of the word no. Now we’ve talked about this. We have talked about this in deposition uh, and cross-examination. I think it’s the best answer. No. Or which is a little bit better of an answer. Same thing, a little bit more formal: I disagree. These are the two answers that your defense witnesses need to learn how to use and use often to shoot down faulty and misleading questions, particularly blame questions. Right? Now, the mistake, which we have talked about 1,000 times on this podcast and in several papers I’ve written, is to say “no, because blah blah blah blah blah blah blah blah blah” and all the defensive argumentative crap that comes out of your witness. Now, see, here’s the problem, defense counsel. And I’ve heard many of you say, “I want the witness to put up a fight here.” Dumb. Dumb. There’s no, A, number one, there’s no jury. Okay. There’s no jury. And B, this is what triggers amygdala hijack. Okay? You don’t want witnesses fighting.

[06:36] Bill Remember that we’ve talked about this, fight or flight, right? We don’t want witnesses fighting. Okay. Now remember, you could also do flight from the “no, comma because,” then it’s so, the fight is “no, comma because blah blah blah” and they start going bananas, right? And now it’s a pissing match. It’s an argument. A lot of defensiveness. This triggers a neurochemical reaction in the brain and then your witness is going to be defensive the rest of the depo. And you don’t want a defensive witness. You want a cool, calm, poise, surgical witness. “No, I disagree” is how it should come out. The key part being period, period. Hate commas. If I could eliminate the comma from litigation, I would. Everything that comes after a comma, nothing but trouble. Okay. So that’s with the fight. Now with the flight, people do the same thing, but and it’s the opposite side of the same coin. Same neurochemical reaction, but then they evade and they run and they go “no, comma because…” Right? So, one is the fight is “blah blah blah blah blah blah,” and then the flight is the, right? They’re both terrible and everything that’s coming out of the witness’s mouth at this point is by definition fight or flight coming from the amygdala and hippocampus in panic mode.

[08:21] Bill Meaning these are not going to be quality answers. They’re going to be emotional answers. They’re not going to stick to the strategic game plan that you taught them. No, they’re going off the rails. And this is the gift that keeps on giving because that neurochemical response lasts for hours. And then anytime something comes up, they’re going to start. They’re going to run or they’re going to fight. Okay. Now, defense counsel, I, I keep explaining this to you for those of you: I want them to put up a stand. Why? Okay. Plaintiff attorney asks a question, blames your witness for everything, and your witness very calmly, confidently, surgically says, “No, I disagree.” Great posture, great facial expression, great tone. Okay. Nowhere to go with that. Okay, that is a slam dunk. Now, the, now here’s what we’re doing. We’re playing, remember, playing chess, not checkers. We want the next question to be: “Why do you disagree?” And now, now we’re going from a closed-ended leading question to an open-ended question. Now your witness can give the same exact answer that they were going to use after the comma. And they won’t be in fight or flight and they will nail it every time. That’s what we’re talking about here.

[09:51] Bill So, defense counsel, stop telling me I’m wrong because I’m not. Because I, I have tested this in front of mock jurors over and over and over. I have interviewed real jurors after trial. They cannot stand the “yeah, but, yeah, but, yeah, but, no because, no, because, no, because.” Number one. Number two, because it hurts the credibility because they’re all over the place. Okay. Number two, it’s exactly, this is the, it’s exactly what the plaintiff attorney wants. I was at a seminar giving a speech and a plaintiff attorney who shall go unnamed, good guy. I talked to him backstage on this and I go, “When witnesses say, ‘Yeah, but, yeah, but,’ or particularly, you know, ‘No, because, no,'” I go, like, “What? Like, how does that sit with you as a plaintiff attorney?” He goes, “Oh, we.” He didn’t say “I.” He said “we.” He goes, “Oh, we love it. Oh, we love it. A witness that’s going to say, ‘Yeah, but,’ or ‘No, because,’ and then try to out-argue us? Oh, yeah. Bring it on.” I go, “What if they say, ‘Yes,’ period, or ‘No,’ period, or ‘I disagree,’ period? Then what?” And they both, he said, he goes, “That makes things more difficult because now I got to, now I got to follow up.” And there’s only two ways that they could follow up. They could keep going on with the leading questions, but they eventually get to that, “Okay, why? How come? Why not?”

[11:28] Bill And that’s what you want. Okay? So, so shoot it down up front. “No, I disagree.” Period. Period. And then wait. This is called playing chess. Then when the why, why not, how comes, right? That neurochemical reaction never happens. And when they answer the follow-up question, they’re still going to be in prefrontal cortex logical mode. They’re going to nail it just like you did in your witness prep. That’s why we do it that way. And it absolutely works. Okay. Second reason that there’s two reasons why we do this, right? Number one is we don’t want fight or flight. We, we don’t want witnesses getting defensive, argumentative, or evasive. It throws them off. It’s like you don’t want the guy in the free throw line upset. Why do you think there’s so much trash talking in sports before field goals, before free throws? Why? Because they want to get in the athlete’s head, because if they can get the athlete emotional, it affects their performance. It’s the, it’s the same thing. This is performance psychology 101. Okay? You don’t want the witness getting emotional.

[12:51] Bill So, the second reason why this using the period is so key because we’re playing chess is now when the “why” comes up, you’ve now doubled your thinking time. So, let’s break this down. If you, if the witness gets a question, “Isn’t it true, right? You, you ordered the Code Red.” Let’s go back to A Few Good Men. Colonel Jessup, “You ordered the Code Red, didn’t you?” Right. There’s a pause there where the witness is going to think and then go, “No, I disagree.” Then the follow. “Okay. Well, why do you disagree?” There’s another pause. Both pauses contain what? Cognition, thinking. And then the answer is going to come after the follow-up, which is going to be a brief explanation. When you say “no, because” and you just start talking, you’ve had one opportunity to think and it probably wasn’t very long, and you’re probably going to answer three or four questions simultaneously in that explanation after the comma. However, if you say, “I disagree.” Period. Next question is, “Why do you disagree?” Another chance to think. Less fight or flight, more cognition equals what? More accuracy. Strategic adherence.

[14:26] Bill Gotta get some water. I was, I was out, I of course I go out there changing the tire. No water, no nothing. Just went right to work. Oh man, I think that was my workout for, I was supposed to do a work another workout today. I, I don’t know if that’s possible after what I just went through last hour. Tire’s heavy. Trying to get the lug nuts off of a tire. Yeah, this. Let me tell you what. I don’t, I mean, that’s, that’s tough. You’re gonna change a tire, you better be in good shape because I got, I was giving that thing everything I got to get those lug nuts off. And I’m a, I’m a big strong boy. Wow. Okay. Back, back to litigation. Sorry. Just that, I think I’m going to be sore tomorrow from that.

[15:23] Bill All right. So, it’s very, very powerful to say, “No.” Period. “I disagree.” Period. Now, some follow-up questions I get here. “Well, doesn’t my witness look bad when they just keep saying no or I disagree?” No, they don’t. I’ve tested this. Thousands of data points on this. Witnesses like it. There’s two things witnesses like. They like it when a witness agrees and says, “Yes, that’s correct,” and they own something. Jurors love that. Love it. “Yes, but, yes, but, yes.” No, they don’t like that. Looks terrible. Sounds terrible. Tells the whole room, “I don’t like this question.” Okay. They get uncomfortable. Okay. “No, because, no, because, no, because.” Same. It’s the same. Okay. So, if they keep saying “yes,” period, “no,” doesn’t it look? No, they look good. But they got to do it with confidence like anything else. You can say, you can say “no” or “I disagree” and sound and look terrible. Or you can say it and look very professional. Right. “Did you order the Code Red?” Uh, uh, um, uh, “no.” That sounds terrible. “No, I disagree. No, that did not happen. No, that’s not true.” Totally different. Right. It’s not just the words, folks. It’s the vibration. It’s the energy. It’s the tone. It’s the alignment. A witness can disagree in a very confident and professional way.

[17:23] Bill And we call that reject. This technique that I came up, I call this “reject and elevate.” Write that down, folks. Reject and elevate. Spent a lot of time with witnesses. Do every witness training session. We’re spending a lot of time on this. Meaning you have to reject the questioner’s statement but elevate your vibration, your frequency, and your tone. “I disagree.” See that? It sounds simple. It’s not. “Did you order the Code Red?” “No.” See, this is how I get in trouble at home. Like my kid will ask me for money. I’m like, “No.” And they get, they get, they get upset at me and I go, “Why are you upset?” They go, “Well, you didn’t have to say it like that.” If I look at them and go, “No, not this week.” It’s a completely different message. Right? So, we’re talking about the message try.

[18:34] Bill Now, this is absolutely critical at trial. Spend hours and hours and hours with it because they’re going to get hammered on the Code Red question and for the jury to be in the same room and hear a witness go, “No, I disagree.” Where does all the pressure in the room go at that point? It goes back to the questioner. That’s a slam dunk answer. But some of you out there insist, “I want my witness to fight.” Yeah, like Colonel Jessup. How did that work out with him? “You want me on that wall? You need me on that wall.” You want your witness saying that? “You can’t handle the truth,” right? You don’t need this stuff, folks. But see, that’s little confirmation bias. We talk about confirmation bias almost every episode now on this podcast because it affects everybody, but it leads to really bad decisions because what you think is intuitively good may not be so good. Follow the data that we have.

[19:42] Bill Okay. Now, here’s, here’s the other follow-up. “Well, if there’s a videotape of my witness just saying no or just saying yes and there’s no explanations, they’re going to play that at trial. I’m screwed.” Okay. If you’re dying to get your story out at depo, which by the way I don’t agree with in most cases, and I would say because I ask every attorney this, eight out of 10 defense attorneys don’t want their witnesses saying squat during depo. Okay? When you’re playing poker, don’t be just going showing everybody your cards because they’ll be very prepared, you know, at trial. Okay? If you’re at deposition and you’re dying to get some explanation out, well, defense counsel, you ask your witness a couple follow-up questions at the end of the depo. Nothing stopped, you know, nothing stopping you from doing that. Why in the world would you want to force in explanations while taking artillery and fire? Witnesses go right in fight or flight. Okay.

[20:51] Bill But still, most defense attorneys I know over the last 24 years have told me, “I want to get in and out of depositions. I don’t want my witness volunteering information, providing extensive explanations. I want to save that for trial.” And very few witnesses have the discipline to repeatedly be giving elaborate explanation and actually keeping it together, not going off track, not going in the fight or flight. Okay. And then most attorneys that I ask like, “Are you going to, you know,” we’ll be doing the dep, we’ll be in deposition train. I’m like, “Are you going to ask your witness anything at the end?” Nine out of 10 times—no, take that back. 99 out of a hundred times the defense attorney says, “Nope. Save it for trial.” So, I mean, it’s there if you want. If you’re dying to get your story out in deposition, okay, do it at the end and then you ask them, “Well, why did you do this and why did you do that?” Okay. No further, you know, get in, get out, right? Because if they force in these explanations under attack, it’s going to, they’ll get, they’re going to go into survival mode, right?

[22:17] Bill Same thing at trial. If your witness has been called, if your, if your client’s been called as an adverse witness and they’re getting hammered, you get to do your rehabilitation questioning immediately afterwards. That’s where, that’s where all the explanation should be coming out. Trying to force them in during adverse examination is not going to end well. Never does. It never does. So, rethink all this stuff because you may think the opposite of me and you want your witness pivoting all over the place. It does, it, it just doesn’t, it just doesn’t work. Not with fact witnesses. I’ve seen a couple experts pull it off. They have like lots of, like, they’ve testified a hundred times before. They know the game. Fact witnesses, that’s a, that’s an immense burden and their brains, their brain is not designed for that. It’s going to go fight or flight and they’re going to be in a world of hurt, right?

[23:25] Bill So the power of saying no, the power of saying I disagree, combined with shutting up after the answer, combined with the elevated energy, vibration, frequency, and tone. These are very persuasive answers. And again, we’ve, we’ve, we have tested this over and over and over again. Now, your witness needs to prep, be prepared for the follow-up, which is the “why, why not, how come,” but now you’ve, now they have more time to think, and they’re not in fight or flight, and they can nail that answer and that explanation that you’re dying to get out. It’s going to come out, but you got to do it the chess way, which is what I just explained. The checkers way with this, “Yeah, but, yeah, but, no, because, no, because,” no, not a good idea. Okay, remember the whole purpose of any testimony, you want your witness to be professional, you want them to be confident, but you want them to be emotionally poised and playing the game. It’s a chess match. And when they start arguing or being defensive or being evasive, they start fighting back or running away. That neurochemical response, you cannot stop that. It’s impossible. Ask Colonel Jessup.

[25:00] Bill All right. Uh, maybe need an ice pack later for this lower back because of those lug nuts. We’ll see. But uh, um, happy holidays. Uh, everybody try to keep it together. Uh, end of the year almost here. Wow, what a year. Busy year. Um, son’s ACL. Uh, we’re in like what, month six of rehab now. So, I, I, I, I shot some baskets with him yesterday. He can, he can run, he can shoot, he can even jump a little bit. Um, but we’re still, they’re just kind of getting into that, you know, lateral movement and cutting, that’s the real, that’s where the real rehab comes in because if he’s going to return to basketball or any other sport that requires any type of lateral movement, this is where, this is where the ACL and the lateral meniscus come in very handy. And uh, you know, we don’t want a reinjury. So, it’s, it’s a long process, but his basketball season started. He is on the team, he’s just not medically cleared. So, yeah, sitting on the bench and clapping and cheering on his teammates, which by the way is a very psycholog—that’s a difficult, that’s an emotionally difficult process for him. I, I feel bad. I’m, I’m, I’m glad he’s still part of the team. He’s going, um, but boy, it’s really killing him not to play. But, you know, he’s 17. He’s got a ways to go. Uh, that’s part of life. You’re going to have setbacks, ladies and gentlemen. And it’s how you bounce back from those setbacks which is what’s going to make the difference, right?

[26:45] Bill Think about this industry. You’re gonna, you’re going to have, you’re going to lose trials. It’s going to happen. You know, it’s not the end of the world. May feel like it, but you got to bounce back from it and you got to get better, right? And so I hope, I hope what we’re providing to you here on this podcast, you know, kind of, kind of always keeps you thinking always. I want to bring up these issues, whether it’s jury stuff or witness stuff, jury selection stuff, voir dire, opening statements. We talk about all this stuff, but I want to keep your mind thinking, right, on how can I do, what am I doing now and how can I do things better, right? How can I use science? How can I use psychology? Even if you’re already good, can be better. That’s what I’ve seen the plaintiff’s bar do. They have great, they have really, really good uh, well-done podcasts. Uh, I listen to many of them and there’s this kind of constant continuing growth and education that they’re always pushing. They always want to get better. And even, you know, even ladies and gentlemen, uh, plaintiff attorneys with 20, 25 years of experience and dozens and dozens of trials like and they’re always trying to get better.

[28:03] Bill Um, and I, I, I admire that. And there’s several defense attorneys uh, that have reached out. They reach out every week, sometimes multiple times a week, saying, “Hey, I want to get better. Uh, send me that article,” or, “Yeah, I really appreciated that uh, recent podcast. You know, I learned something, I want to put it into play.” That’s great. And that’s the number one reason I, I, I do—I absolutely love doing this podcast because if I can help you learn something, grow, become, become better, you know, see, see the world differently, see psychology differently. I mean, that’s a, that’s a, that’s a win-win. This podcast is not for everybody. I get that. But for you that listen regularly, boy, I love you. I love doing this. Uh, I know Dr. Wood loves it. We got some really good guests coming up soon here. So, we get some more guests on and keep uh, you know, breaking down all these litigation issues um, scientifically for you uh, to hopefully uh, help you keep improving uh, your practice and and build your success.

[29:12] Bill So given that uh, don’t be, don’t be going crazy with your holiday shopping and like um, like this Black Friday stuff. That was a bad idea to begin with. Yeah. “We’re going to open up the store at 4:00 AM.” You get this crowd of angry people all, you know, bo—they’re, they’re like boxing each other out to get then they open the door and then everybody runs in and they’re fighting over things and throwing hay makers and it’s just a really, really bad—it’s like the running of the bulls in Spain. It’s just, it’s just not necessary. There’s got to be a better way, right? Go on. Go on Amazon. What is it? Is it Cyber Monday? Yeah, Cyber Monday is a hell of a lot safer than Black Friday. Okay. You’re not going to get trampled by your neighbors. Okay. I, if I was you, I think, I think the Cyber Monday is Cyber Monday. I think it’s Cyber Monday. Yeah, that’s the way to go on this. Whatever day it is. I think it’s Monday, but there’s some Cyber. Yeah. Do not—if you did it today and you came back, you may need an ice pack from all this you the shopping and boxing out you did this morning. So anyway, okay, Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky. We will see you next time.