Episode #292 – Building Witness Trust By Showing You Care

Bill Kanasky, Jr., Ph.D. speaks about how important it is to establish trust with witnesses prior to starting any prep. Attorneys need to ask witnesses how they are doing, demonstrate that they genuinely care about their witness’s mental and emotional state, and earn their trust before diving into any of the specifics of the litigation. Witnesses may have issues impacting them that are completely unrelated to the lawsuit, though those factors may directly affect how they are able to perform during prep and testimony. Identifying and addressing distractions and concerns is imperative to maximize witness prep and performance.

The other key is to start this process from the first contact with the witness. Expressing genuine concern from the first interaction with the witness communicates that their well-being is paramount in the litigation process and builds trust and rapport for them with the legal team, which results in a better prep process and, ultimately, better deposition outcomes.

Full Episode Transcript

[00:15] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky here. Happy new year. Happy new year. While most of you are shoveling snow and scraping ice off of your windshield, I am under a UV sunshine warning here in Florida. I was just outside. I think my head, I think my head got burned. This is fantastic. Oh, my poor clients, friends, and family up north. Hey, I did that for a long time. But the snow, it’s so pretty. Yeah. Till it turns brown and black and gray and it’s disgusting. You have to shovel it. Ugh, better you than me.

Now, for all my friends, clients, and family in the south or out west, southern west, this is why you live here. This is why you live here. Florida’s fantastic. Weather is great. Happy New Year to everybody. Um, let’s get back to basics. Let’s get back to basics. Uh, 2025, kind of a crazy year. not going to lie, a lot of medical issues that my family dealt with. Uh my son’s on the, we’re on the back nine here of ACL meniscus uh rehab. He’s doing good, but boy, that’s a that’s a that’s a tough injury. It’s that meniscus. That meniscus is really really tough. But hopefully he’ll be back up here. It t- it takes a whole year to get over this thing. I know they say ah it’s about eight nine months. No, it’s it’s really really not. Not when, not when that meniscus gets going.

[02:33] Bill But hopefully uh everybody uh for everybody listening, you have a great 2026. That’ll have its own share of chaos as we know. But let’s get back to basics in 25. We talked a lot, a lot about opening statements, a lot about disruptive voir dire. All good stuff, right? But I want to start the year off on getting back to basics. And one of the key basics is uh with it is with your witnesses. um something that we that we saw in the tail end of of 25 uh that we’ve always seen, and we’ve talked about this on the podcast before, but I think it’s important to go back to this. Okay, repetition is a great thing. Redundancy is a great thing. It’s what my neurosych- neuropsychology professor at UNC taught me. Redundancy is a great thing because it helps learning, right? Repetition.

And let’s repeat this message. Your witnesses come, your fact witnesses come into this litigation process and um they’re not exactly uh open arms. They’re not exactly open arms defense counsel. Um, and so, you know, those first couple meetings are really important. And I want to kind of rehash some things about how important this is because here here’s what typically happens. Um, when myself or somebody from the team ends up working with a witness, the defense attorney is shocked after the first session. And typically, it’s something like, “Wow, um, boy, they really opened up.” Um, you know, they told me things they they didn’t tell me before. Um, God, they’re super cooperative now.

[04:39] Bill And then I ask, “Well, when you first got started with this, what what was—” “Oh, well, they they didn’t say much. They were, you know, kind of, you know, instead of arms wide open, it was arms closed and uh they were uncomfortable. They weren’t returning my calls, stuff like that.” Um, it’s really really important to develop a solid level of understanding and empathy, which I think we all quickly forget, um, of what these witnesses are going through um, emotionally um, as you know, a case is filed. Now, most defense attorneys, most have never been w- you’ve never, you’ve never put— you’ve never been in their shoes. You’ve never been in the witness’ shoes. You’ve never been deposed yourself, for example. Um, it’s tough. It’s tough.

And you want to get the most out of these witnesses because they’re important to your case. And this goes, you know, from the truck driver, the low-level nurse, the janitor, the security guard, right? All the way up through the safety directors, the managers, all the way up to the sea-level folks, corporate reps, okay? They’re all going through something a little bit different, right? So, your ability to connect with these people early and establish some trust and some buy in is key. It’s going to be key going forward to get the most out of them because you’re going to ask them, you know, for meetings in which you’re going to review documents, review exhibits, work on strategy, do mock questioning, right?

[06:37] Bill Again, don’t expect these witnesses to be like, “Yeah, great. Yeah, I’ll be there. Can’t wait. Clear my schedule.” They need this process like a hole in the head. Okay? And so, your ability to connect with them early and build trust is essential. We’ve talked about this before, but redundancy is a great thing. Now, how do we do this? Well, I think what what’s usually skipped, right, is you kind of I see the tendency of jumping into the case too fast and not really addressing kind of how these how these witnesses are doing emotionally, how are they doing as people, right? We’ve talked about this coming back to bite you later on.

Okay. So, number one, I think when you when you when you reach out to these folks, you’re having your initial meetings. Uh obviously, you have to introduce yourself and what your role is. Um but there’s going to be 95% of the time going to be a fear-based response. Okay? Now, sometimes it’s anger or frustration, but it’s a lot of fear-based, right? Particularly people who haven’t been involved in lawsuits before. They think maybe they’re going to lose their job or that they’ll be that they’ll go to jail if they give a bad dep. I’ve heard it all. Okay? And so I think it’s important to uh connect with these people on a human level and not a professional level first. Let me say that again. I think it’s important to connect with these people on a human level before a professional level first.

[08:34] Bill They’ve got to like you and they eventually have to trust you, and trust is earned. Okay? They got to like you before they trust you. They don’t like you, they’re never going to trust you. So obviously when you’re reaching out, be friendly, be warm, okay? You’re going to be the bearer of bad news. It’s not a good phone call. But I think next is connecting with this person by saying how are you as a person doing number one, despite this litigation? How’s life? How’s your job? How are things at home? How’s your health? Okay.

And get a sense of kind of what their baseline is. Had multiple witnesses going through bankruptcies, divorces, um recent death of a loved one, uh being a caregiver for a a sick relative or parent. That wears people down. And they don’t advertise that. A lot of these witnesses are tough, right? And they don’t want any excuses. But I I think figuring that out is important and not to pry into their lives, but to tell you, “Hey, listen, you know, litigation is a big deal, right? They want your deposition. You may have to testify at trial. I’m the company attorney, which means I’m your attorney. I am here for you. And part of this process is I want to make sure you’re doing okay as a person before I start asking to review documents, right? I care about you as a human being.”

[10:30] Bill Okay? Litigation’s stressful. And before we go jumping in, I want to see how you’re doing outside of that. Okay? Because we may have to meet at various times or spread out these meetings because you have things going on personally that are already stressing you out. Well, I don’t want to pile on. I’m here to help you and not make your life more complicated. Okay? And try to open up some of those doors. You know, some people have nothing going on. Everything’s fine. Other, other— a lot of people have things going on. Could be a health issue, could be a family issue, could be a financial issue. Okay? I think that’s really, really important. That’s going to that’s going to pay off dividends down the road. Okay?

And then as you meet with these witnesses to continue that discussion to get updates, you know, litigation takes a long time. You’re going to meet with these witnesses over months and months, months. Yeah. Make sure everything’s okay. Sometimes something pops up. I had to witness that. First two meetings were great. Next one, the third one was just a, it’s like fell off of a cliff. “You okay?” “Yeah, I’m good. I’m good. I’m good.” “What happened?” And then, you know, it took three hours to figure out that this witness uh their their dog they had had for over a decade uh died and they and their the spouse and the family, the kids, they were crushed.

[12:17] Bill Pets are part of the family. And uh this witness was really really upset and just stunk it up during the— we were doing like mock questioning. They were terrible. And I’m like did you not listen to anything we just went over the last two like what’s going on here? Okay. But then we figured out you know they had this the death of a pet. Well that can derail everything, right? So, it’s a good thing to establish that trust. Express your caring about them as a human being and what’s going on in their lives. Define what your role is, but then to check in with them as this process goes on.

Okay. Now, the wrong thing to do, which happens a lot, is you you just kind of skip over that. You jump right to prof- the professional relationship. “I’m the company’s attorney. I’m your attorney. You’ve got to know these docs. In fact, let’s go over some of these documents now. We have to talk about your memory of this event. Who’d you talk to? What did you say?” And then you have somebody that is already nervous or fearful. They could be angry, right? And that’s going to mess everything up. That’s going to mess everything up. So, connect with them human being first and be authentic with that. Most people like that and that’s going to help develop some trust.

[13:47] Bill Okay. Second thing is talk to them about their emotional status related to this case. Okay? So don’t start there. Start with their general personal emotional status with just how life is going and see if they have any of these issues going on. If they do, you got to keep that in mind because they may be worn down or exhausted because of non-litigation stuff. Dr. Dr. Wood’s going to come on here in next couple episodes and ex- explain to you about a witness he worked with that had full-blown panic attacks during the witness prep. Attorney’s like, “What’s going on? Oh my god, my witness is crazy.” And this witness had other things going on. Dr. Wood identified it, dealt with the panic attacks, taught this witness some relaxation skills, and then that witness went on to be deposed and did a great job.

[15:02] Bill Psychology is important. The Litigation Psychology Podcast. Okay. Now, that’s an extreme example. It happens. Okay. Once you handle that personal stuff, then you you want you want to ask questions to the witness about their emotional response to this particular lawsuit. Okay? So, think about how this can happen. You may have a witness that’s emotional for non-lawsuit reasons and now you’re going to you’re going to dump this lawsuit on them, right? It can compound the emotion and you can make them worse. That’s why you have to do that step one first.

The next step is how is your emotional status to this lawsuit? Now, some witnesses say, “Yeah, yeah, yeah, no big deal.” And that’d be nice. Many of witnesses come out and they’re scared to death, right? Fear-based response. Many come out and they’re more in the anger, frustrated, annoyed, right? They come in hot. They think they’re maybe being drug into something they don’t belong or that they’re going to be blamed for something. Emotions can run high. Okay? Need to really take— this is before, listen ladies and gentlemen, this is before you’re looking at one document, this is before interrogatories, this is before reviewing the complaint, exhibits, pictures, videos. That’s all going to come later. You have to cover the basics here and say how are you when you heard about the lawsuit and you heard you had to talk to me. All right.

[16:57] Bill How are you doing emotionally? Okay. And get them to vent. Okay. Now, they should open up to you at this point because you did step one because the worst thing that can happen, which is what happened in Dr. Wood’s case, is you talk to them early like, “Yeah, I’m fine. I’m fine. I’m cool. Everything’s cool.” And then a month later, it’s blowing up on you in your witness prep session. Okay. So, you can’t be like nonchalant about this. It’s got to be authentic. You got to ask the right questions.

Now, what I like to do with witnesses, and I’ve told you this before, redundancy is a great thing, okay? I like to tell them essentially stories about other witnesses because sometimes when you ask somebody, “Hey, how are you feeling? Tell me how you’re feeling,” people get threatened by that. So, you got to get to how people are feeling without threatening them. How do you do that? Well, you describe what other witnesses have reported and you normalize it. Right? This is a voir dire trick. I taught you this in disruptive voir dire. You want to get jurors to open up to you. So, what do you do? You say, “Hey, we’re going to talk about corporate America. That’s one of the issues we’re going to talk about in jury selection today.” Now, some jurors feel this way. Some jurors feel this way, and some jurors don’t even care. Like, where where are you on the spectrum? That tends to lower that bar, get jurors to open up.

[18:46] Bill So, you want to do the same thing with the witnesses. And you say, “Listen, I’ve prepped thousands of witnesses for depositions and cases like this. It’s my job. I have met with some witnesses at this early phase. Some of them have been like super nervous.” And then describe to them specifically how witness— like what witnesses have been through. You know, some witnesses say, “I can’t sleep well because I’m worried about this lawsuit.” Others say, “You know, I sometimes I skip lunch or dinner because like I’m I feel like I’m sick to my stomach because I’m so nervous.” Others report, “You know, difficulty focusing on my job because I was thinking about this damn lawsuit. Ruminating thoughts.” Other witnesses tell me they’re ticked off. They’re pissed. They think this is a BS lawsuit. And they’re walking around all day, you know, pissed. Other witnesses, they just kind of don’t give a—. They’re like, “Okay, yeah, that’s life. It’s not a big deal either way to them.” Which camp do you fall in? Which bucket do you fall in?

[20:11] Bill I do that with 100% of witnesses and it works every single time, and they tell me exactly how they feel because of that approach, right? Versus don’t jump in the cross-examination mode of your witness or go too fast. “How you doing? You you good? You’re good. Okay, good. Let’s jump in these documents.” You don’t you don’t want to do that. This is going to require some time and some authenticity. You’re going to have to be a good human being, a caring human being before you’re a good attorney. And that’s how you’re going to get the most out of your witness. That’s how you’re going to maximize trust.

Particularly if there’s some skeletons in that witness closet. Had one of those the other day. Oh yeah. Oh yeah. I saw a look on her face. She’s a safety director at a company. And uh we had gone over we have everything I described to you. We did, got her to a really good spot. And then as we started like the more formal prep, the issue came up with, “Oh, by the way, if you have any criminal convictions, they’re going to ask you about that and you can’t lie.” And then I saw the face go like the jaw just, you know, dropped at the ground. And then the breathing changed and then the eyes were going all over the place.

[21:54] Bill So we kind of knew, but because of the work that we had done on that more personal level before, she told us what had happened. It was something from like 25 years ago. Got busted shoplifting. Got convicted. They got to pay a fine and be on probation. Do some community service and like, you know, heads down. It’s like, “Hey, it’s okay. We’re going to help you through this. Here’s how these questions are going to come.” And everything was fine.

Okay. Now, if we didn’t do those first two steps and I never covered that, imagine this blowing up in your face during the deposition and that question— well, you’re going to get the same reaction at the deposition that we just got in the prep because you didn’t go there the way you should have. You didn’t establish the trust and now bad things come out during the dep. You’re defending the deposition going, “Oh my god, Jesus Christ, what the hell’s going on? Why didn’t she tell me this during the prep sessions?” Right? You need these people to open up to you and tell them the worst, the worst, and worst. And then you’re going to have to do in the prep, right? Is, you know, confidentially obviously attorney client privilege. What do you think of ex-employee? What do you think of this? What do you think of this supervisor? Do you think anybody else said they— like come on like we need… They’re not going to be honest with you if you haven’t established the baseline trust and rapport. Okay, this is all psychology 100%.

[23:45] Bill Okay. So, think about that. You know, 2026, new year, you have plenty of witnesses that you’re going to work with. Your ability to connect with them early as a human being is going to be very, very important to their subsequent performance, to their buy in, their motivation to work with you, to go over those exhibits, to talk strategy. Okay? And if you don’t do these steps the right way up front, that can totally blow up in your face at the dep, it can negatively impact motivation, attention during your prep sessions, has big impact on performance. Okay, so think about that.

Think about that going forward. Okay. How are you interacting with your witnesses? What types of things are you doing early? Are you jumping right into lawsuit mode? Or are you taking a more human approach? Because I will tell you this, if the witness likes you and they trust you, they’re they’re going to give you their best effort. They’re going to open up to you and you’re going to find a lot of vulnerabilities that otherwise maybe you would not have found. So, then the odds— the stat, it’s all about statistics, right? The statistical odds of this witness performing well are going to be much much higher doing what I just described. But if you’re just kind of conveyor belt witness prep, you’re going to miss a lot. And then the statistical odds of a bomb going off in the middle of your dep drastically increase. And we don’t want that.

[25:45] Bill Okay. Now, young attorneys, this is important. You newbies, right? Because you’re all pumped up about the case and maybe you’re not thinking about this stuff, okay? These folks come in and usually, not every single time, but usually there’s some emotion. Remember, there’s something emotional going on personally that you need to respect and be aware of. Trust me, if somebody’s going through a divorce, they’re probably out of their mind emotional, very, very stressful. And now you’re going to prep them for dep. Okay? Knowing that’s really important and knowing where to draw some lines maybe on how much you’re working with them or when you’re working with them. Okay?

And then many of them, not all, many of them have emotional reactions because of the actual lawsuit as well. So, there’s a lot of territory to cover, right? A lot of territory to cover before you get into your kind of deep strategic prep with the witness. And I want to do a podcast about this because I don’t want this to slip. This is really important. Now again, when the CSI team works with the witness, we do all this stuff. Okay? So, if you didn’t do it or didn’t do it the right way, you know, we we can, you know, bridge that gap. But if you’ve done it the right way and then we get involved, it’s it just makes our jobs easier, right? We kind of hit the ground running. I think it’s really really important and very difficult for people in the legal profession to have empathy for the witness because they’re not the ones being sued.

[27:41] Bill Right. I think I think when we uh I just I just got off a call with a client talking about a really bad case, catastrophic injuries of an eight-year-old girl. Very, very bad. And what the client had said, uh, he said, “Yeah, I’ve been doing this for 25 years. I feel it’s like I’m kind of numbed to it, right? Like I’ve just done this so many times. It’s like this like I have this anesthesia to any of the emotion behind these cases because I’ve been exposed to this bad stuff over and over and over.”

And I think attorneys— I think that over years and years and years of handling death and catastrophic injury cases, you kind of right become desensitized to it perhaps and maybe you forget, hey, my witness is likely not desensit- this is a this is something very new to them and so their emotional reaction is going to be different than yours. And so being aware of that, being able to um do some of these things early to increase that trust and openness, I think is really important with your witnesses. So that’s what I got for you today.

[29:05] Bill Happy New Year everybody. Hey, please uh if you’re on uh YouTube or if you’re on Spotify or just whatever iHeart Radio, we’re on all those major but please please leave us a review. That always helps. That always helps. We like reviews even even the— there’s not many negative ones. If you have a negative review, that’s fine. But regardless, we’d like we we we’d like reviews, like to get feedback. If you have questions, you email me. I get right back to you.

Many, many attorneys have reached out asking for CLE’s for their firms, particularly on the disruptive voir dire everybody want. The problem with that CLE it’s it’s it’s not a simp- like we’re not doing that in a in an hour CLE. That’s going to take some time. That’s gonna take a couple hours. The opening statement one has also grown to, you know, a couple because I get so scientific, you know, it’s really you have to break this stuff down to the molecule. But if you’re interested in stuff like that, just uh reach out. Happy to do it. Happy New Year everybody. Litigation Psychology Podcast. Dr. Bill Kanasky. See you next time.