The guest for this episode of The Litigation Psychology Podcast is Georgianne Walker, Partner at May Oberfell Lorber. Georgianne talks to us about the challenges of preparing foreign-born physician witnesses for testimony and the concerns and anxieties of some foreign-born physicians. She also discusses the challenges of working as a female attorney and her advice for younger, early career female attorneys. Bill and Georgianne also talk about preparing for a plaintiff reptile attack, the consequences of a bad deposition and the power of a well-prepared, effective deposition and testimony, plus adjustments that need to be made in voir dire due to Covid-19 and the recent social unrest.
Full Episode Transcript
[0:05] Bill Litigation Psychology Podcast. Dr. Bill Kanasky here with Courtroom Sciences and we have the amazing Georgianne Walker from South Bend, Indiana. Georgianne, how are you?
[0:15] Georgianne I’m doing great. Hi, Bill.
[0:16] Bill Well, so thank you so much for being on the podcast. Um I’m assuming it’s, it’s hot as hell in Indiana just like Florida?
[0:24] Georgianne It’s hot as hell.
[0:26] Bill Yeah. It’s, it’s just brutal. And it’s better than shoveling snow that you don’t have to shovel humidity. I figured that out.
[0:31] Georgianne No, you just have to dig through it.
[0:34] Bill That’s, I’m, I’m, I’m fine with that. Uh topic today is going to be a little bit on med mal litigation. I know that’s a big part of your practice. Before we jump into that, what made you want to be a trial attorney? I know before I got into jury consulting, there are four different things maybe I was looking at. Kind of how did you get into this and kind of what was your career pathway?
[0:57] Georgianne Sure. Um actually when I was in the fifth grade, believe it or not, I was ca— I was cast as a lawyer in a play. And a prosecutor, a local prosecuting attorney, came and talked to us, who then went to be an Indiana Court of Appeals judge. And I just fell in love with like the justice system and um equality and fairness. And I never looked back. And then I, you know, went to undergrad, went to law school, became a law clerk at the firm that I’m with now, and they threw me in. I was doing my first opening statement within a few months of being sworn in and I loved it. And so that was a while ago.
[1:39] Bill Yeah, I mean, I work with a lot of attorneys across, across the country, but you’re one of the most talented I’ve worked with, particularly in your age group. Because many in your age group actually— struggle to do that opening because they don’t have that courtroom experience, but you, you certainly uh have it going on. So let’s talk a little— and by the way, I’m rocking out the Def Leppard shirt today personally.
[2:00] Georgianne I see that.
[2:00] Bill Because I was supposed to see them in concert uh this week and naturally that was canceled. So not a happy camper over here in Orlando.
[2:11] Georgianne I understand.
[2:12] Bill That’s, yeah, it’s killing me. So you and I have worked together for over 10 years, have prepped countless physicians for both deposition and trial. Let’s talk about the different types of physicians that that we have worked with before and different challenges. Um I know many of the times we are dealing with a physician that’s foreign born. Can you talk a little bit about some of the special challenges you, you have with those witnesses, particularly culturally? Because they come in, they come in a little bit hot into these uh prep sessions because of their level of anxiety. Can you tell me about your experience with that?
[2:47] Georgianne Sure. Um I find that it’s not just a language barrier. So that’s one challenge that we have that we need to get across because obviously the jurors are, you know, generally speaking, local. And so we have this language barrier to get across, a dialect barrier to get across, and then on top of it, what you just mentioned, the cultural barrier. And that tends to be the most difficult. We can slow the witness down, we can make sure that the jury understands what they’re saying as far as the English language goes, but I think that the cultural barrier is the bigger problem because plaintiff’s attorneys use these tactics that you have done a really good job of picking apart and helping us get our witnesses ready for. Um and it tends to be, at least in my experience, that the foreign-born physicians do not grasp them um well, if ever. And sometimes it takes you and I more than one session to get through uh you know, to, to these physicians, but they just don’t seem to understand what the plaintiff’s attorneys are doing to them.
[3:57] Bill Yeah, I noticed that. I mean those dep, dep preps or trial preps, they just take longer because there’s, there’s more, there’s more barriers there that you have to get over. Do you find a lot of those foreign-born physicians also have um increased fears that because they’re foreign born that a jury’s not going to see them the same as they’d see an American born doctor? And how that— does that cause them more anxiety?
[4:22] Georgianne I think it does with some of them, and it depends on the specialty. Uh you know, to me, more the family practice type uh don’t have um or have more of that anxiety. You start to get into like the neurosurgeon and the more, you know, interventional cardiologists seem to be a little bit more confident. And I haven’t seen that as much, but definitely family practice and OB for sure.
[4:47] Bill Which, and you just mentioned different types of physicians which you and I have worked with all of them. Is there a particular specialty you find to be the most challenging to work with? Be honest.
[5:01] Georgianne I um I wouldn’t say that there is a particular specialty that I find the most challenging to be— to work with. I— but I do find that the foreign-born physicians are more challenging to work with. And I mean honestly sometimes I think it’s because I’m a woman, and it takes a while for them to trust me and understand that I do know what I’m doing to protect them and defend them accordingly in the courtroom. And but once we get past that, things seem to go a little bit better.
[5:32] Bill Yeah, and I, I know these these physicians um really, really trust you. I’ve seen that over the years, and I think it’s because you’re such an aggressive advocate for your client, which I think is important. And you brought up an interesting topic. What— what advice would you give a younger woman who is maybe in the first three years of law practice on, on career development and, and maybe the special challenges that women face in the workforce, particularly in law?
[6:01] Georgianne Um my advice would be that you have to be aggressive. Not overly, but you know, there— there are older male attorneys that, you know, still refer to me and some of my colleagues at the office with sometimes what is considered to be, especially by millennials, derogatory terms. I grew up— you know, I’m a little bit older so I grew up, I’m used to being called “miss” or “lady.” But people that are in their late twenties and early thirties don’t like it. And uh just recently I actually had this come up, not in a med mal case, but a senior associate was so taken aback by the way she was talked to by an older male attorney on the other side that she considered turning him in to the disciplinary commission. Read the rules, she had— she had a right to, but instead I helped her draft a letter to him basically asking him to treat her with a little bit more respect. So probably the biggest piece of advice is that you have to be an advocate for yourself. And if you get in those situations, punch them in the nose.
[7:12] Bill I, I like that advice. Um how— because I mean your career has been in the thick of things when it comes to reptile. Can you talk a little bit about how the reptile approach, which by the way is very aggressive in the state of Indiana as you know, how that’s been kind of a game changer and how it’s maybe forced you to adjust how you’re working up a file when you know you’ve got one of these pure, very well trained reptile attorneys on the other side?
[7:41] Georgianne Well, the biggest and most important part is honestly when you get involved and we do the dep prep together. Um because you know, we walk in there and the doctor is ready to be a doctor and not necessarily a witness.
[7:58] Bill Right.
[7:58] Georgianne Yeah, and I mean, you know this better than anyone, but trying to get them to change their focus and not think that they’re talking to a patient, but that instead they’re talking to a plaintiff’s attorney who, quite frankly, only cares about the one-third contingency fee that they’re about to get. So if they don’t win, they don’t get paid, and they’re going to be very aggressive. And I think in yours and my experience, 100% of the time when we start throwing these reptile questions at these doctors, they get them wrong the first time, every time. Because they’re just not in the right mindset, but by the end of the day, we turn them around.
[8:38] Bill But I love reptiling your doctors. That’s, that’s very, very fun. Um yeah, I do notice that uh one of the main issues that you and I have dealt with with physicians is they come in thinking they have to prove their case medically during the deposition, and they don’t really see this as um more of an economic issue of what the plaintiff attorney is trying to do. And I’ve had several physicians tell me, “Well, hey, if I just explain myself medically, this plaintiff attorney is going to go away, leave me alone, and I can win the deposition.” That’s not the case, is it, Georgianne?
[9:16] Georgianne It’s not. And a lot of people say you win your case in deposition, but we win the case in deposition, not the witness. And when they explain away— and every time that there is uh when they— when they fail to listen to our instructions and they start to try and explain away, it can be disastrous.
[9:36] Bill No, absolutely disastrous. Which is why doing advanced training, get ahead of these things is so important. And you’ve been wise, and I want to talk about the role of insurance companies in this. Luckily I have a lot of clients, as do you, that notice the economic and strategic benefit of very early preparation, particularly before deposition. Whereas some clients, they let the deps go and then they figure out, “Oh boy, we have a real problem.” Describe for me the feeling you have as a trial attorney when you’re going into trial and you have a bad deposition you have to deal with, particularly on videotape, how that can really negatively impact your case versus if you have effective depositions, how that improves your case.
[10:22] Georgianne Well, when I have a bad deposition, my biggest fear is that plaintiff’s counsel is going to use a portion of it, which is likely videotaped, and play it during their opening statement. Because it’s a statement of a party, they’re allowed to do that and it’s not considered hearsay. So when that happens, I— I mean I already have hurdles because we’re on the defense, but then I have to get up there and of course they pick, you know, the worst clip of the depositions played during opening statement. And so it’s just an additional hurdle that I have to get over at trial. If we have a well prepped witness, they don’t have that ammunition in opening statement, and they likely don’t have any ammunition from the entire transcript. So that I’m not going to have to worry about credibility issues, I’m not going to have to worry about impeachment, which is a big deal, or them picking a word or a sentence here or there um you know, like I said, just to point out an opening, which just sets the stage not the way I want it set.
[11:22] Bill Well, that— that’s a very— that’s a very good point. Couple more questions, Georgianne. What has your experience been thus far with virtual depositions? And um there’s a lot of pros and cons I’ve been hearing. I think one of the pros I have heard kind of repeatedly is because of the technology, it’s kind of naturally slowed the process down, number one. And it’s taken some of the kind of nose-to-nose intimidation factor out of it. Yet at the same time, I’ve heard a lot of headaches and complaints, particularly if you can’t sit right next to your— to defend— that you can’t sit right next to your witness and kick them under the table. What has your experience been? Because I see these— I don’t see these going away necessarily anytime in the very near future.
[12:06] Georgianne My experience has been, thankfully, the couple that I’ve done that have been— I’ve done several virtually. The couple that I’ve done thus far during this pandemic where my client was being deposed, I’ve been able to be in the same room with them.
[12:19] Bill Good.
[12:20] Georgianne Everyone else is via Zoom, so that is good. I ca— I just recently canceled a deposition that I had in Chicago um because I’m going to be taking the opposing expert’s deposition, and I don’t want to do it virtually. I want to be in the room. I need to feel that person out. I need to see how they’re— I mean, it— I know we’re looking at each other right now, but it does make a difference. And there’s no way I’m taking that deposition unless I can do it in person, period, unless the court orders me to. So on one hand, when a plaintiff’s attorney says, “We’re going to move forward with your client’s deposition, but we’re going to do it virtually,” I’m happy. I think an advantage for the defense, and I’m not going to give the other side that advantage.
[13:04] Bill Totally agree. Uh last question. And you haven’t had to do this yet, but it’s, it’s coming. How— how do you— and I just did a webinar uh the other day where I, I covered this briefly because we didn’t have a lot of time and we’re still collecting data on it. What types of adjustments in voir dire do you plan on making? And you should call me back channel because I’ve got some data for you post-COVID-19 because so many people have been impacted by this financially um job-wise, a lot of layoffs for those if not just being let go, a lot of stress and anxiety relative to health and being around other people. And then to multiply that, you have, and for lack of a better term, the— the George Floyd effect, interacting with something that was already bad. What types of things are you going to maybe do differently in, in jury selection going forward to try to assess how this pandemic plus maybe some of the social unrest has impacted jurors’ lives?
[14:09] Georgianne I think it’s going to be more important that we focus on the mentality of the juror. Not necessarily asking questions— I mean obviously I would continue to ask questions as specific as I can to the case, but to know where these people’s heads are. What’s going on in their life? Are they so worried about money that they’re not going to be able to focus on the trial? Would it really be an even greater hardship for them to sit on the jury because maybe they just went back to work? And those are the kinds of things that I think will impact whether they pay attention and, and how involved they are. Because they might be sitting there thinking, “You know what? I have enough issues in my life and I don’t have the bandwidth to give to these other people’s issues.” And unfortunately, we’re going to have to weed those people out because we need people that are able to pay attention to the evidence.
[15:00] Bill I agree. And I’ll share my data with you privately uh and show you what we’re— because we’ve collected a lot of data on this. Some of the results are actually really surprising. Okay. Now the final question, and maybe the most important question of the podcast: yes or no, does— does the University of Indiana make the NCAA tournament next spring?
[15:20] Georgianne Well, first of all, it’s Indiana University, Bill. Did you do that on purpose?
[15:25] Bill I, I get— yeah, it’s IU.
[15:29] Georgianne I don’t know. I mean, have you been to Assembly Hall? Because if we can’t have fans there, I don’t know. It’s just so electric. I am a little bit concerned on if there are no fans how it’s going to impact the play.
[15:42] Bill Yeah, and it— with all these sports, particularly you got college football uh coming up and um yeah, if you’re playing games with a third of the capacity, I mean you probably hear the players talking on the field. I’ve heard a lot of players say it’s just not going to be the same. I, I think there’s some psychology behind that when you have, you know, you’re at Notre Dame and you have this huge crowd cheering for you versus you’re hearing crickets in the background. Um I think it could be very diff— very different.
[16:10] Georgianne What about North Carolina? Are they gonna make it?
[16:13] Bill Oh, they’re definitely gonna. In fact, we’re, we’re number one seed in the East with the best recruiting class in the nation. We’ll have that discussion uh probably at a local tavern. Well, Georgianne, thank you so much for being on the podcast. You had some great information for our audience and we’re gonna have you back again soon, okay?
[16:32] Georgianne Thank you.
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