Episode #58 – Zoom Trials

Shareholder and defense attorney Heather Snider from Segal McCambridge Singer & Mahoney in Chicago joins the podcast and shares her experience with a recent 5-day Zoom bench trial, including what worked, what didn’t, how technical issues and objections were handled, and more. Heather and Dr. Bill Kanasky also discuss the current and future state of virtual depositions, virtual witness trainings and possible virtual jury trials. They talk about the pending bill in Illinois that proposes starting pre-judgement interest of 9% from notice of injury and what the ramifications of that could be if signed into law. Lastly, Heather and Bill share their perspectives on Reptile theory, the increased aggressiveness of the plaintiff’s bar, particularly Reptile attorneys, the importance and benefit of preparing witnesses proactively, especially 30(b)(6) witnesses for depositions and Heather shares her thoughts on the challenges of being a young, female defense attorney in today’s world.

Full Episode Transcript

[0:05] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky, here today [with a] very good friend from very chilly Chicago, Illinois, Heather Snider, trial attorney. Heather, how are you?

[0:22] Heather I’m good, how are you doing?

[0:22] Bill I… it’s funny, I’m in Florida, so I’d say I’m, I’m a little cooler or a little warmer than you, but it was 31 degrees when I woke up this morning, so even a little chilly in the Sunshine State.

[0:35] Bill Um, well, so we are… so I’m happy to have you on the show. Now I know we’ve had a very… uh, you’ve had a very exciting recent job change. Tell us about the new firm and the types of things you’re doing over there, because I think that part of job changes and law, well like with anything, I think are probably pretty stressful at first, but then once you make the move you get settled, things start to fall into place. So, how’s it going?

[1:03] Heather It’s going really well. You know, it’s been about two months now and made the change to Segal McCambridge and very happy to be here. It’s been a very refreshing and supportive experience. And obviously, it’s also very stressful to make the transition, but at the same point in time, it’s also had a lot of support behind us with all of the new attorneys and staff and everyone. And yeah, moving into what we do best with cases and getting out there with a trial to start off this year—a zoom bench trial, actually, in Cook County.

[1:40] Bill Well, I want to talk about that because that did receive some news and I know your colleague Paul was working very hard on that as well, and so he was giving me um, updates. So kind of can you walk us through, I guess, give us the anatomy and physiology of a zoom bench trial? Um, how, um, how does this process work and what were the… what were some of the pros and cons that you saw, maybe even surprises?

[2:08] Heather Sure, yeah. So it was set up, you know, obviously the judge, she was the host of the Zoom just like in any situation really. And basically, it was, we had set up our own little like courtroom at our office. Plaintiff’s counsel did the kind of same exact thing. We each had podiums and trying to make it as lifelike as possible, but you know, staring at each other over computer screens and everything. Yeah, and so what I will say is that it actually made it kind of a little less stressful, though, than being in the courtroom because you’re also kind of on your own home turf. It’s just a lot more relaxing of an environment, and everyone knows obviously Zoom, it’s, it’s a lot less formal. And even the judge, you know, it’s a lot less formal; she was at her lake home. And you know, but it was still, you know, a bench trial. It was, you know, a great experience.

[3:06] Bill I… it just, yeah, this virtual thing, it’s, um, you know, it’s a, it’s a, it’s really a double-edged sword because I do think people behave differently when they’re communicating virtually than they do in person. I don’t think there’s any question um, about that. I think it’s a big deal the fact that um, if you go into your office and you do something virtually, it’s a lot different than doing it from home. I’ve noticed that with a lot of the witness uh, trainings that we’ve done. If you have a witness that goes into the law firm and then they set them up on Zoom to communicate with me, things have worked out really well. It’s when the witness is at home and there’s dogs barking and kids running in the background. Uh, yeah, did you have… so during the Zoom bench trial, how, so how long was the trial?

[4:05] Heather It was five days from start to finish.

[4:09] Bill And and what, if any, technical issues uh, came up? Because I’ve seen… I mean, I’ve, I’ve rarely heard of a Zoom deposition going perfectly from start to finish, so I’m sure there had to be some type, some type of hiccups.

[4:23] Heather Oh, of course. I mean, starting even off right away with just trying to make sure there was screen sharing capabilities to show exhibits to the judge. Paul, during his opening, you know, we had some technical difficulties and you know, it’s kind of that whole thing of how savvy is the judge, mediator, attorney, whoever is using, you know, Zoom for instance. Um, you know, that was one. We also actually had an audio difficulties with one of our experts during it as well, like delayed things. And you know, it’s kind of one of the catch-22s with doing this via Zoom and everything is all the technical glitches and everything that can happen. And you know, she was on Wi-Fi and it just wasn’t connecting properly, which happens all the time in depositions as well.

[5:12] Bill And that’s, and that’s tough, um, because I could see, I mean, what if you’re in the middle of your opening that you’ve practiced and you… I mean, you’re going, you’ve got your rhythm right, you’re in your groove, and then it’s like, okay, timeout, cut. It’s almost like a Hollywood production where it’s like, cut, okay, start over. Um, I think that would be uh, really difficult. Did they have wit… uh, witness testimony during the bench trial?

[5:36] Heather Yes, so there were multiple witnesses put on every day. Everyone was via Zoom besides just the, our office and the plaintiff’s counsel being in the same room with their co-counsel and everything. Everyone else was, you know, either at home or the experts, or sometimes in their offices.

[5:57] Bill Interesting. So let me ask you this: how, and maybe it’s similar to the depositions, how did objections um, work during uh, Q&A uh, of witnesses? Was it actually possible to get an objection in, or was it people talking over each other? Because I imagine that has to be difficult and then the court reporters probably losing their mind at the same time. How… what was that experience like?

[6:26] Heather So definitely were able to get the objections in, but there were a lot of times where everyone’s talking over each other because I feel like it’s just made it a lot less formal that people interrupt each other more often when they’re doing something via Zoom. And you know, and then you have a court reporter always like trying to get everything down, but then like also trying to jump in and sometimes even being muted or not muted. And then I mean, we also had issues with the court reporter being able to have the audio working properly and everything like that.

[6:57] Bill Interesting. I think this is, um, at least my prediction and based on things I’ve heard, I think for most areas this, this Zoom thing um, is a, is a band-aid on a seeping wound uh, to get us through to the other side. I think for the most part, I think everybody, everybody prefers the in-person for multiple reasons. I’m wondering if um, things like witness preparation may actually continue on Zoom because there’s a, there’s a staggering cost savings to clients. I added one up from one of my clients and they’re like, “Hey, like by the way, how much money have we saved by doing Zoom?” And I looked down and I was like, “Uh, 78 thousand dollars.” They’re like, “What?” I’m like, “Yeah, you know, airplane tickets are expensive. Um, you’ve seen my bar tab, that’s, that’s never pretty. Uh, yeah, hotel.” But you start adding that up exponentially over the year, it makes you wonder uh, if things like, you know, witness preparation and certain kind of strategy meetings will stay virtual or those will actually go back to in-person. I, I really don’t know the answers to those things, but I, I think that for the most part, Zoom has gotten us uh, to the, through this most of these issues. I think that with some of the issues I’ve heard about some of the jury trials being played with on Zoom—obviously not for huge cases, but for smaller cases—that have been disastrous uh, for multiple reasons…

[8:35] Heather I can only imagine. I mean it’s hard to keep anyone’s attention when you’re talking about being on a video.

[8:41] Bill Oh yeah. It’s like, you know, I just imagine saying, you know, “Okay, timeout. Uh, you know, juror number seven, uh, can you please put your pants on? Uh, put down, put down the Hot Pocket and the Miller Lite and please listen to this expert’s testimony.” Uh, that’s why I said unless jurors are in some other location that’s more formal, they’re, they’re going to behave very differently um, at home. So I hope, I hope those just… I’d rather postpone trials and then get back to, get back to um, get back to real life. So, well that’s great that you got to, that you got to be part of that uh, part of history. Um, speaking of Illinois—and you, you and I had a discussion—um, they, I think this came out last week um, and I had to do it… not a double take, a triple take. Can you talk to us about the proposal that the… uh, I’m not sure if it’s the governor, the legislature, whatever, in Illinois um, is proposing regarding civil lawsuits? And everybody needs to listen to this because if this would ever catch on in other states, I think it would present some monumental problems.

[9:52] Heather Yeah, so it’s currently a house-passed bill that’s essentially sitting on our governor’s, you know, desk waiting for a signature or veto. And it’s with regards to starting pre-judgment interest at nine percent, starting with what they’re saying is the notice of the injury.

[10:12] Bill Okay, so let’s walk through this. So okay, so what… so who would determine the common denominator as far as what the interest would be pulled from? Because obviously if you’re the plant attorney, you’re like, “It’s a 50 million dollar case,” right? And if you’re defense, you’re like, “Well, not so fast.” How would that process actually work?

[10:32] Heather So it would not ever even come into play until there’s a verdict against the defendant. And that’s when the pre-judgment interest would, you know, actually play it account. But you know, I can only imagine that it is going to be used against, you know, insurance companies, companies in general, defendants, to just be like, “Well you need, you know, like my settlement demand’s not going to go up because you’re at risk for all of this interest that you’re going to have to pay me.”

[11:01] Bill That’s, um, that’s insane. When is um, when are they expecting a judgment on that? Is there a deadline or is it just kind of sitting there?

[11:08] Heather It’s just kind of sitting there. And it’s interesting because it’s, you know, a lot of cases—or states, sorry—it starts actually with like the filing of a complaint is when project interest starts, whereas here they’re saying notice of injury. So that could mean, you know, you’re in the hospital, and there’s medical malpractice. And so it’s like, are you saying if the doctor knows there’s a complication on, you know, February 4th, 2021, that they’re on notice that day and so pre-judgment interest would start running?

[11:42] Bill So, so I’m assuming the plaintiff bar he essentially came up with this and uh, paid some good lobbying money to get this thing through, is that what happened?

[11:51] Heather I mean, that’s what seems like what happened. And I know there’s been a lot of pressure because of, you know, the COVID pandemic and yeah, the insurance companies, everyone’s just drawing everything out. But in my experience, I’ve also had it where plaintiff attorneys are drawing out the cases as well and not necessarily working them up or pushing to move things along either.

[12:11] Bill Yeah, no, that’s uh, that’s really interesting. We’ll have to keep, keep an eye out on that because I would imagine if it succeeds in Illinois, other states you’re gonna start to see some, some movement and a pretty big battle over that. Wow. Um, shifting gears, yeah, you and I um, at your previous firm and now at your current firm have been battling um, these uh, plaintiff reptile attorneys for quite some time. Um, I don’t see this problem going away anytime soon. If, if anything, which I predicted years ago, this is only multiplied. And I think the way, I think one of the reasons it’s multiplied is that it’s working, number one. It’s working. Um, and number two, the, the verdicts you get—the whole nuclear verdict issue which I’ve done a lot of speaking and writing on—it’s um, I think for the reptile um, attorney, I think it’s pedal to the metal. I think that you’re gonna see more of this. Is has that been your experience that it’s, it’s, it’s actually popping up more?

[13:16] Heather Absolutely. And you know, obviously you need to know your opponent and figure out like, are they really going to use it? How good are they at using it? You know, Paul and I were both actually working on a case this past fall where the plaintiff counsel [was] very aggressive with the reptile theory. And it is, you know, you just have to make sure your witnesses, everyone is prepared and that you’re also prepared to be ready to combat it when it comes to the depositions.

[13:47] Bill Yeah, what I’ve noticed is that because of Zoom and the technology, it’s kind of naturally slowed down things, which I think has taken a lot of uh, wind out of the sail of the reptile cross-examination. Because one of the, one of the, the foundations of the effective reptile cross-examination is to get the speed going and get that momentum going with the safety questions, and then by the time you get to that 10th, 11th, 12th agreement, you’ve got this witness locked in and you’re going to do your damage. Well, because of the technology and the sound issues and, you know, the screen freezes up and just a slight delay, which is a delay, and then the court reporter needing everybody to really slow down, it’s taken a lot of speed out of the equation. So I’ve seen a lot of the reptile attorneys actually struggle to get what they want because of Zoom and the technology. So that’s been, I guess, uh, um, a real positive from, you know, all these Zoom depositions taking place. I think the issue is once we go back to good, which I think will probably be some sort… it probably [will be] regionally, right? Um, where you’re going to start seeing depths uh, live again after you get vaccinations and and and more testing and things get back to some relative um, normal. And then I would imagine that the um, the reptile folks will be back in full attack mode when it, when it goes live.

But uh, I can assure you uh, you know, working, working nationally, and I know that you know, you work in several different states, uh, I think it’s a problem that um, is not gonna go away. Uh, luckily, um, I’m going to knock on wood and cross fingers. I’ve had a lot of phone calls from clients, even insurance clients, when those are the ones are getting abused by the nuclear verdicts because their system stinks, right? They’re very reactive and not proactive. They’ve actually been calling pretty early telling me, “Hey, you know, we don’t want to get nailed by another nuclear verdict.” Maybe the positive thing about the whole nuclear verdict issue is that you’re… you wake up the next morning, you read the paper, you’re going, “I don’t want to be that person. I don’t want to be that claims manager that’s on the other end of this nuclear verdict. Boy, maybe I should do some things differently.” Have you seen your clients maybe… have they opened up a little bit more to being aggressive early in cases and maybe paying for that witness prep or paying for that mock trial to try to get ahead earlier than, rather than being reactive?

[16:29] Heather Yes, we definitely have seen that. I think they understand, and especially when you can convey it to them like, “I’ve seen this before, I’ve seen this attorney, or I know how this attorney’s gonna operate.” Like, they’re going to go after, you know, the insured’s employees, 30(b)(6) witnesses, all of you. You need to be prepared because really you need to be proactive instead of reactive, especially with depositions. That’s truly where you can win or lose a case. If you have a really bad 30(b)(6) witness deposition, it’s going to be hard to combat that with even just trying to settle the case.

[17:05] Bill Yeah, you’re right. So that our, our new ser… we have a new service, it’s actually not new, it’s probably two years old, it’s just it doesn’t get a lot of attention as our other services do. But a client’s calling me saying, “Do you have some sort of 30(b)(6) boot camp?” And of course my answer was, “Yeah.” I had no idea what they were talking about. Like, because like we need to run these people through a tryout, like uh, like know the NFL combine—like I need their 40 speed, their vertical jump, their bench press. Because and they’re right, and I got this, but they said, they’re like, “Our most knowledgeable person on this topic may not be the best witness, and our best witness may not be the most knowledgeable.” And so what I’ve seen, which I think is brilliant—now we’re doing a lot of it particularly for big companies—because a lot of these 30(b)(6) witnesses, they’ve been around for 20, 25, 30 years. Well, some of them got COVID, some of them decided to retire, and so now you had this group of folks that maybe are retired now, and now you got 40-somethings, right? Gen Xers essentially going into the… they’re gonna be the next 25 years. Um, and boy, they’re different people and they don’t have the ex… they don’t have the experience.

And so can you talk a little bit about the importance of… because I’ve seen some, I have seen some big-time arguments, I’m sure you’ve been through this where you’ve come into a case, the corporate counsel is telling you, “Hey, here’s who our 30(b)(6) corporate rep should be,” and then you assess this person, you’re like, “I don’t think this is the right person.” Have you had that situation? And and how have you worked it out? Because actually I’ve been called in and I’ll be the, the referee, right? The third party to say, “Well, let’s have Bill, you know, put them through the assessment process, put them through the witness training process. Let’s put this witness, let’s make them perform to prove they can do it.” Because I think oftentimes the corporation thinks they know who [it] should be, but that person may not be the right person. Can you speak a little bit about how that can create some tension on the legal team?

[19:17] Heather Yeah, it absolutely can create some tension. But obviously, you know, trying to explain to them like, if we use this specific witness, it might not be the best for the case and it could ultimately potentially be detrimental to the case. And just, I mean, you can really base it on just meeting with certain employees and being like, either sometimes it’s they might not know enough or they might just not present the best or understand the questions and just kind of feed into the kind of reptile type questions of safety and all of that and just running through them. And then even trying to go back over with those questions with them after explaining to them what’s kind of occurring and they just don’t necessarily get it. And it’s just trying to explain to the client like, “We need to make sure we pick the best option here,” and maybe it’s not… it could be someone newer, younger, who actually understands what’s, what’s happening.

[20:14] Bill It may not be the most popular option in the company, but maybe the long-term, or, short-term and long-term, the best option.

So I see a lot of that happening now because I do think this selection of that individual is absolutely vital um, going forward obviously for the deposition and then for future, for future trial work. Um, last question, then we can ask, we can we can wrap up this uh, podcast. Tell me what it’s like—and again, this is, you’re not expecting this question and I don’t know the answer, I’m just curious as a consultant and a podcast host, in 2020, what is it like to be a young… and yes you are young, don’t even mess with me on that one… to be, to be, to be a young female trial attorney? What is, what is, what is that like? Because I think um, yeah I see a lot of things. Particularly DRI has like their women’s group of attorneys. I see… I’ve worked with a ton of just um, amazing uh, veteran um, um, female attorneys. What, what has it been like kind of going through the grind, um, you know, going through promotion, getting experience um, as a, as a female attorney, particularly in the big city? In the big city no less, you know?

[21:29] Heather I mean, obviously [it] can be harder as a female, and especially with older male colleagues at times as well as not necessarily always getting the same amount of respect and everything. Um, I mean, I still go to depositions at times and I’m asked if I’m the court reporter. It has happened since the beginning and it’s…

[21:48] Bill That’s terrible. That is so, that is so bad.

[21:52] Heather But I’ve also had a lot of uplifting coworkers who really try to help promote. You know, I mean you know Paul, he has always like helped promote me and stood by me and helped, you know, give me the opportunities as well to succeed. And I think just, you know, as a female attorney, unfortunately, it feels like at times you have to work harder and smarter at times.

[22:20] Bill Yeah, yeah. Well that makes sense. Well, I just wanted your, I just wanted your perspective and uh, I know Paul, Paul speaks the world of you and he’s happy to have you on the team. Well, thank you so much for being on the podcast, this is long overdue. Um, I will be up in Chicago next week. I am really not looking forward to it uh, as it’s February. Chicago is not the place to be. Um, I’m more the May, June, July Chicago guy um, but um, but I, I hope that we talk uh, soon. Good luck with all of your work coming up. Uh, be safe at uh, um, out there and thank you so much for being on the show.

[23:01] Heather Yes, thank you. You stay safe as well.

[23:03] Bill Thank you. And to our audience, thank you so much for participating again in the Litigation Psychology Podcast. We’ll see you next time.