Episode #55 – Managing Witness Mental Health

Trucking defense attorney Mike Bassett joins the podcast to discuss the steps that he takes before he begins working with a witness: establishing trust, understanding their backstory, addressing their concerns and questions and establishing their state of mind. Without the proper pre-preparation, any training or witness prep you have planned will not stick. Mike and Dr. Bill Kanasky discuss the importance of understanding what is going on in people’s lives; for example, their thoughts and feelings about Covid-19, about current political and social issues, etc., to identify potential mental stressors they may be dealing with before you start on witness prep for the deposition. Lastly, Mike and Bill talk about the challenges for attorneys and their staff with Covid-19, the importance of relationships, and what defense firms and insurance companies should do differently in 2021 to manage their cases.

Full Episode Transcript

[00:05] Bill Welcome to another episode of the Litigation Psychology Podcast, brought to you by Courtroom Sciences. I am Dr. Bill Kanasky, and welcome to the new podcast studio. And the first person, the first person to be part of this, uh, a return guest, a very good friend and an outstanding trial attorney, Mr. Mike Bassett. Mike, how are things in Dallas?

[00:25] Mike I’m well, buddy. I can smell the new paint in the studio. I like it. I like it.

[00:33] Bill Well, we needed a more professional background. We started from nothing and, you know, now almost pushing a year later, I’m really, really happy, uh, doing the podcast. Happy to have you on, and you and i have done, boy, between podcasts and seminars, DRI presentations, uh, a lot. We’ve done a lot together last year and it’s been great. And I think I really like having, uh, you as a—as a contributor both to the podcast or seminars because of your, your great experience. And something you and I have talked about a lot, um, offline, that is really important to get online, is the importance of the initial meeting with witnesses. I think that this is absolutely critical, particularly for younger attorneys, your young litigators, who may have a instinct to jump right into the case file, jump right into the facts of the case. “What do you remember? What happened? Let’s look at this policy. What—what happened with your training here and there?” When there is, Mike, isn’t there a lot of other things maybe we should be looking at, particularly in the—in the, uh, COVID era?

[01:43] Mike Bill, and these are good points. So I remember one time I went out with a younger lawyer to interview a plant manager where a fatality occurred, and this lawyer was very prepared and sat down with his legal pad and said—state—he said to the guy, “State your name.” And—and you could just see the guy shut down. He was like, “What is this?” So as I was getting ready for this—this initial meeting with the witness, I think you’ve really got four—four goals here that you got to do. But one, you got to establish trust. These people have got to trust you. And fast is slow and slow as fast. You got to take time. Second, you need to get these people’s backstory. Everybody’s got a story; you need to know what it is. Third, you need to know what you’re dealing with. Are you dealing with somebody who is very litigation savvy who knows what they’re doing? Are you dealing with somebody who’s never been in the legal system and is terrified? And lastly, you need to do this because if we don’t, all of your hard work that we hire you to do, it doesn’t stick. You can—you can run people through your program all day, but if they don’t trust me and they wonder who the hell you are, it’s not going to work.

[02:49] Bill You know, trust is a—is an issue that, uh, I think it’s overlooked. And I—I think some people are shocked to hear this, but I’m not shocked at it. A lot of witness—and again, whether it be your—it could be a driver, it could be a safety director that’s never been, um, deposed before. A lot of people don’t trust attorneys. Go figure. I mean, it’s—it’s, um, uh, and I—I see a lot of, um, illogical thinking, uh, particularly especially from truck drivers. I worked with a truck driver outside of Atlanta, Mike, and in the first hour, didn’t even talk about the case. And I was just, you know, “How are you? Um, um, how are you doing? How are you feeling?” And if I said, “Yeah, like,” and you gave me this—it’s like, “What are you worried about? What’s your biggest fear?” And you know what it was? “I’m going to jail. I’m going to get fined by the court. I’m going to lose my…” All this crazy stuff that he was paranoid. So then after the end of the hour and the attorney and I said, “Hey, you can put these illogical thoughts aside,” he goes, “Can I call my wife?” And I went, “You want to take a break and call your wife?” He goes, “Yeah.” I go, “Why?” He goes, “Because I want to tell her she doesn’t have to worry about us losing the house because of this lawsuit.” It’s stuff like that that if you—if I would have never asked, if I would have never—never asked and just would jump right in the case, I would have missed it and probably would have had a disaster on my hands.

[04:23] Mike And you would have had it. And that’s these pre-preparation questions that you have—have started talking about that I think are great. And here’s how I do it. I sit down with him, give him a cup of coffee. Now it’s all virtual. You know, “How are you doing? What’s the weather like where you are?” If you’ve got a common theme, you know, “Oh, I was up in Iowa one time and, you know, January was the coldest I’ve ever been.” You’ve got to start slow with these people. Then I say, “Before we start the hard work, tell me what—what’s on your mind. What are you worried about?” And then I do that throughout the meeting and I do it before we end the meeting because it’s like peeling back the layers of an onion, Bill. These people may not tell you at first. And they need to know that it’s okay. Then if they say, “I’m fine,” then I’ll say, “Okay, that’s fine.” In my experience, what I found, sometimes people worry about maybe their money, sometimes they worry about… and then that gives them permission to say, “Well, yeah, my wife and I were talking,” or “my husband and I were talking,” because people talk about these things around the kitchen table. Because you and I do this all the time, but can you imagine? Pick somebody in your family that never dealt with a lawyer that has to give a deposition. They’re likely going to be frightened. And the more that we can tap into that, the better we are. And then I tell people, “Listen, you’re going to get no judgment from me. I’m the last person in the world who’s going to judge you for any of your questions.” And then the last thing I do, Bill—and—and this is something I’m going to bring up later—is vulnerability. I think you can share with people your vulnerability. You can say, “Listen, man, you know, I’ve sat in your shoes,” or “One time I was involved in something and I was—I was really nervous. It turned out the stuff I was nervous about didn’t really matter. But I don’t know where you’re coming from, so let’s talk.” So I think those pre-preparation questions you talk about are critical.

[06:06] Bill Mike, you’ve been doing this a long time. Uh, how many times has a witness dropped a bomb on you in deposition and then during the break you’re like, “Where the hell did that come from?” Um, when you probably could have gotten that information in your prep sessions, but maybe they were either too fearful, too scared to—to be honest with you, uh, about something? I’m sure it’s happened to you.

[06:35] Mike It has. And you know, I’m going to be honest, it’s probably a reflection of me as an early lawyer not taking the time to spend, like you said, 30 minutes or an hour of the session, or just the first prep session, just getting to know somebody. And it has happened before. And at the end of the day, I got to tell you, I think it’s on the lawyer. I know the lawyers listening may not like that, but it’s our job to—to draw that out of people. And you know, not only does it hurt that deposition, Bill, but if that’s the first deposition of many, now everybody has to deal with those facts, especially if it’s the first time. And from a practice perspective and a client relationship perspective, someone’s going to ask, “Why didn’t we know that? How did this come up and we didn’t know it?” So I think, yeah, it’s happened to me before. I won’t—I won’t regale you with the times that I’ve looked at my shoes and thought, “You know what? If I just went up in flames right now, they would have to stop this deposition.”

[07:38] Bill I’m going to go a little reptile on you—on you Mike. I have found that, um, I don’t think there’s any strategic benefit to covering safety issues down—down the road in prep. I think—I think these need to come up um, very, very early. And what I have found, um, particularly to safety directors—because the safety stuff has been beaten into their head and it’s their job to beat safety into the driver’s heads constantly—when you start bringing up the reptile issue, and one of the things that you say early on in your interview with your safety director is to say, “Oh, by the way, safety is not the top priority. I got news for you because if it is, we’re going to be in trouble in this deposition.” I—I felt a lot of emotional pushback, um, from the safety directors because that’s the—I mean, think of it, that’s their title: Safety Director. And then you come in saying safety is not the most important thing because if it was, you’d park the damn truck; you wouldn’t be driving the truck. It’s taken a lot of work, um, to—to get their mindset to change on that. And I have found that I don’t think it’s good to wait to the second or third meeting to talk about safety. I think you need to bring it up immediately. What are your thoughts?

[08:57] Mike I think you need to plant the seed very early on, yeah. And you’re right, these people, that’s all they do is safety, and that is their job and that’s their mission, and they are very passionate about it. And I think it’s a way that you approach it that you said, “Listen, we get that safety is important. As we get into this, we’re going to kind of talk about this concept that it is not the most important and—and we’ll talk about why.” But because you—what you’re doing is questioning what these people do. I mean, that’s like coming to you and saying, “Listen, this psychology policy stuff, it ain’t all that.”

[09:32] Bill Yeah, and that has happened. That has happened, uh, uh, before. So Mike, since, I mean, we’re in the—I’m hoping, knock on wood, we’re over the, uh, hump, uh, with both COVID, um, and hopefully, um, it’s been a rough week in America. Uh, you know that, I know that. Hopefully we’re over that hump as well so that at some point, I would hope in the word is months—in the next couple months—we can start to heal as a country, get back to normal. But what I have found during my witness prep sessions, and kind of why I came up with this podcast topic as far as the initial interviews with these—uh, with these witnesses, is a lot of non-litigation stuff’s coming up with these folks. People have either had COVID, their—a close friend or a family member has, they have suffered economically, they have suffered emotionally. You throw in all the political stuff and, Mike, I’ll say it right now, and I am a clinical neuropsychologist, I think some of the political stuff has damaged people just as bad as COVID. I put them on the same level. I think they’re both really damaging and I have seen, before COVID and before the political stuff, I would always tell clients, I’m like, “Listen, two out of ten witnesses I’m gonna find something bad and it’s gonna be something that’s gonna require a therapeutic approach. It’s gonna take more time, it’s gonna cost you more money, I’m sorry.” It’s two out of ten witnesses, Mike. I—I kid you not, it’s—it’s seven out of ten right now. Seven out of ten people have a significant mental health issue going on. And this is with witnesses, and this is from the driver all the way up to the C-level executive. What have you been seeing and how has the Bassett firm been kind of communicating with each other and how to handle these more mental health issues with your witnesses, with your clients? Because it’s running rampant right now and it’s something that we cannot ignore.

[11:45] Mike So I’m going to start with the—the law side of it, the witness side. Let me give you a prime example. We had a 30(b)(6) deposition that we had prepped for and prepped for and prepped for, and then two days before, our witness comes down with COVID. And he said, “No, I want to go forward.” Like, “No, you’re not.” And so we had to deal with that. I have started to, when I get on the phone with people—because now it is sort of in our vernacular, Bill—”Hey, how’s everybody in your family doing? Is everybody healthy?” And again, I think we need to know what’s going on because now there may be people—four or five new people—living in the house that have never lived there before. You have people working from home that have never done so. I mean, god love the families that they’re—they’ve got kids in school, you’ve got two people working in the home. This is all learning where they’re coming from because when people feel heard, Bill, if they think you understand and you show them that, they’re going to be much more receptive to all the work you want to do. Because if we don’t do this, you can do your slides and show your depo clips all day and these people are going to shut down. So that is on the law side. Uh, on the—on the—the law firm side, I can tell you here’s what we do. Every Friday morning, we have a meeting with, uh, everybody in the firm. We used to have it in person; now we all get together on Zoom. We’re constantly preaching to people, “Protect, take care of yourself, make sure that you’re getting enough rest.” We provide mental health resources to everybody at the firm. We’ve got folks you can call as often as you want to talk about it. We have Teams—that’s how we communicate, Microsoft Teams. So management has made it a point, we try to reach out to two or three different people every day. “Hey, how are you doing? What’s happening?” Man, that’s important because we have caught some things early on before they have gotten really, really bad. And then when you have somebody, uh, we had one of our great employees whose boyfriend tested positive and they’ve got some kids, and so we were all checking in on them and I think that made them feel well. And then the last thing I’m going to come back to, Bill, and I’ve said it before is, from a leadership perspective at our firm, I think that we need to be vulnerable. And I tell people—and I’ll tell them, you know, all six people that listen to your podcast. That was a dig at you, Bill. All six people that listen to your—

[14:09] Bill I heard that loud and clear, Mike.

[14:12] Mike I—I tell people all the time, “Listen, I talk to a professional every week and I’m taking medication.” Because this has been a meat grinder, Bill, this whole damn thing. And when people know that I’m doing it, maybe that gives them the—the ability to say, “You know what? I’m struggling too.” Because there may be somebody out there who’s so afraid and so ashamed to think, “I’m the only one dealing with this.” They’re not. They’re not. So that’s how we’re trying to deal with it, really is. I guess the word is transparency, Bill, just letting everybody know that we’re together.

[14:43] Bill It’s funny, uh, so I did a podcast Monday with, uh, our very good friend, uh, Mark Perkins over in, uh, Shreveport, uh, Louisiana. And what Mark said, he’s like, uh, “The practice of law was a meat grinder before COVID.” And now look at what, you know, what—what’s—you know, what’s going on um, with everybody. It’s—it’s a—it’s a lot. It’s—it’s a lot to handle. Um, but it’s—it’s good to hear that you guys, um, um, are hitting this head on. And, uh, you know, the other thing I’ve noticed is, um, when I’m talking with—so it’s not just your witnesses, you may have a corporate client. I had one that I was doing my kind of 2021 reaching out—”Hey, how are you? Happy New Year. How are you doing?” And um, obviously without mentioning names, I had an insurance claims person essentially say, “I thought about suicide last week.” And so—wow. So obviously I dropped everything. I have kind of an ethical responsibility at that point to talk to this person, uh, provide some resources, keep in touch with that person. But that’s pretty damn scary. Uh, and it was all—it had nothing to do with litigation, right? It had to do with—with—with COVID. It had to do with finances. A lot of people have people close to them, or they themselves have been economically, um, impacted by this mess. So I think the key here is when you’re talking to whether it be witnesses, uh, clients, colleagues, um… Mike, talk a little bit about the role of—I think we—we all need to show a little bit more empathy than maybe we have in—in the past, correct?

[16:32] Mike Yeah, I think that we have used this term a lot at our firm, and that’s “grace upon grace.” You just got to talk with these people. But you bring up a good point, Bill. If you’ve really never had a conversation with a driver or a claims professional or corporate representative, if you just come in cold and ask, it’s—it’s probably gonna—it may not have the impact you want. And that’s why you and I both know this is a relationship business. We are in relationships with these people, and I think reaching out is the key thing. I had a—a Zoom, uh, a Zoom mediation about six weeks ago, and I was checking in with the claims professional, the claims supervisor, the day before. And this person was just a wreck. And I said, “What—what’s going on?” Come to find out her mom had been diagnosed with COVID like two days—two days before and had passed. I said okay, well, let’s talk about that. What do we want to do? And—and this person wanted to go forward and we did. But had I not known that and I would have been in the mediation, I would have sensed something was up. This person would have probably been resentful that they were there and nobody knew. And so that’s why I think we need to be asking these questions. But in order to do that, Bill, we need to have—we need to have done it in the past. And I think the biggest challenge—and I tell lawyers this all the time—we need to talk 25 percent and listen 75, because you’ll be amazed what your people will tell you.

[18:03] Bill No, you’re—you’re absolutely right. So I’ve—I’ve invented a new service, um, and this is largely because I probably could have—and I’ve done this in the past sporadically, but now I’m doing it all the time—is I’m doing, um, I—I call them, it’s pre-pre-preparation. Witness prep sounds—it’s I know it’s a—it’s like, you know, like when you get on Southwest and they say, “Pre—pre-boarding,” and I’m like, “What the hell are you—no, it’s boarding. You’re not pre-boarding, you’re—you’re boarding.” There’s no—that doesn’t make any damn sense, right? But it’s “pre-preparation.” And so I have some, uh, witnesses that are having some emotional struggles. And I know if I sit down on a six-hour witness prep, it’s gonna be useless, Mike. They’re gonna—it’s just gonna be useless. And so what I’ve done is planned somewhere between one to three pre-preparation sessions in which, uh, we’re doing Zoom, um, for about an hour. And it really has not a whole lot to do with the case, Mike. It’s sitting down saying, “Hey, this is—it’s very therapeutic in nature.” And it’s getting their head straight to the point where—two things: they’re more emotionally stable, so we’re talking to them, making sure. And again, it’s not a patient-provider, really, it’s a consultant’s, uh, client relationship, is to say, “Hey, I’m not your psychologist. However, I—I’m your litigation psychologist, meaning there are some things that you can be doing cognitively to be thinking about this case in the right way versus the wrong way.” You know, people start getting negative thoughts, very, very bad, and they start getting illogical, get very negative. It just gets worse. So fixing their thought pattern, encouraging them to do some more positive things as far as social support, you know, “Talk to your spouse or a brother or sister or a good friend, um, get—get on that diet, you know, go for that walk, you know, get your—take care of you, right?” To get them—to get them where they need to be so that when we do hop in the case, they’re able to absorb the information, they’re able to actually pay attention, have the cognitive and mental and emotional stamina to hang in there. And it’s—it’s been a great success. But it has required, uh, you know, I get—getting in there again, maybe an hour to 90 minutes at a time, one or two times before you really hop into that case file. I have found that to be, um, very, very effective. Because the one thing I know, and you and I have talked about this: if you jump in too fast, it can really explode in your face, right?

[20:55] Mike Oh yeah, I mean, and the impact will be not only in the moment of the deposition, but it’s going to impact the rest of the case and every other witness is going to be saddled with that bad testimony. An observation I can make is before you have those calls—and I think they are great to do—as you know, I think the lawyers that hire you need to call you and say, “Bill, this is what we know about here’s—here’s the story we know on this driver. Here’s the things that we are thinking about.” So you at least have some places to prod and see if they are issues. Now, often what happens is we don’t know half of what’s out there. And here’s another question that I ask now is, “So who have you visited with, uh, kind of about the deposition and about the case?” “Well, I visited with my wife.” “Okay, anybody—have you visited anybody else?” And here’s what I’m looking for: their crazy ass neighbor who is a lawyer who has filled their head full of stuff that is absolutely wrong. If you don’t ask that question, that’s the tape that’s running in their mind and we don’t know we’re working against it.

[22:01] Bill That—that’s—well, part of that’s absolutely hilarious because it’s happened to me several times before. It’s mind-boggling. Yeah, they—they talk to their neighbor who’s like a divorce attorney giving deposition—yeah, that’s—that’s not going to work on a—particularly on a transportation case. Um, but then the other one I’ve seen, and this is less with the drivers, more with the safety directors or corporate executives, like they’re getting on YouTube or Googling, you know, “how to be a good witness.” And, oh, have you ever been on YouTube and looked up “how to be a good witness”? I disagree with every single video I’ve ever watched. It’s actually laughable. But if you don’t know what your witnesses are doing on their own time, because some of them it’s not—it’s not a fear factor, Mike, it’s, “Hey, I want to do a good job as a witness. I want to do a good job for the company. I’m gonna go buy this book or watch this YouTube video on how to be a good witness.” Very, very bad—bad stuff that all those books should be burned and they should ban—speaking of censorship, you know, rather than shutting down Twitter accounts, they should be banning YouTube videos on how to be a good witness, because they all stink.

[23:14] Mike But if we don’t ask, we don’t know. And that’s why again, what—and you keep looping it through, Bill: “What worries you? What are you concerned about? Tell me anything else.” And then I always say, “So before we wrap up, I just want to make sure—anything I haven’t covered, anything you’re worried about?” And it’s amazing how on that last question, you think you’re about done and then you get it.

[23:36] Bill Yeah, oh yeah, oh yeah. Uh, Mike, let’s wrap up the podcast, uh, with what’s going to be the Bassett firm’s philosophy for 2021. Because what I think—what we preached in 2020, and I’m actually seeing it—I mean, again, knock on wood, I’m getting a lot of phone calls of attorneys and—and actually insurance companies who have gotten the message. We did all the nuclear verdict podcast webinars and I said in 2021, you better come out of your corner swinging, because if you come out and you’re gonna react, the plaintiffs’ bar, particularly this reptile folks, they’re gonna—they’re gonna kick your ass. Uh, what’s the Bassett firm’s, um, philosophy for 2021?

[24:21] Mike Uh, in that regard, it’s: set the tempo, set the pace. Set the tempo, set the pace. There is no reason that we cannot drive these files because you and I both know that files are just like any—any game, any sport. They have momentum. And our job is to always be the one that sets the tempo, sets the pace, sets the momentum. And it goes back and forth in the case, you know and I well know. One witness can go your way and it’s like a roller coaster; the next witness you think the case is over and inflamed. But the thing is to always be pressing—always be pressing in 2021, taking the fight to these people.

[24:57] Bill Totally agree. Mike Bassett, thank you so much for being on the podcast. Uh, you’re a great friend and I know we’ll be in touch soon. I know we have some cases, uh, coming up. But, uh, please, uh, send my best to all your colleagues and, uh, have a great 2021.

[25:14] Mike Thank you, man. And thank you for letting me be the first guest in the studio. I won’t—I won’t mark it up as I leave.

[25:21] Bill I got a surprise that’s in the mail. It’s not gonna be here until February, but, uh, you’ll—you’ll—you’ll definitely see that.

[25:26] Mike Thanks for having me.

[25:27] Bill No problem. And thank you to our audience. Thank you for participating in the Litigation Psychology Podcast. We’ll see you next time.