Brad Hughes, trial lawyer with Clark Hill in Los Angeles, joins the podcast to talk about the differences in how he approaches a catastrophic injury case in his transportation litigation work versus a corporate matter. Dr. Bill Kanasky and Brad discuss the increasing presence of Reptile in commercial cases, the differences between preparing witnesses in trucking cases versus witnesses in commercial litigation and why Brad thinks preparing for deposition with trucking witnesses is easier than preparing corporate and 30(b)(6) witnesses. Bill and Brad also talk about cognitive fatigue in deposition, their recommendations on when breaks should be taken, how that helps the attorney and their client, what constitutes a break, and what you should do with your witness during a break. Lastly, Brad gives his perspective on virtual depositions and the importance of doing research on what the plaintiff’s bar has been planning once courts open back up.
Full Episode Transcript
[00:05] Bill Welcome to another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences. I am Dr. Bill Kanasky here with my very good friend in Los Angeles, California, Brad Hughes. How is it rolling out there, my friend?
[00:21] Brad We are testing negative and staying positive is what we like to say out here. Uh, that’s, that’s kind of where we’re at here in the, in LA. So, uh, it’s a rainy day in L.A., so this is truly a unique day for me to get on the pod with you.
[00:34] Bill Well, excellent. Uh, I hope there’s no mudslides or anything like that. It’s always something. It’s either fires or mudslides or, I, I don’t know man. I don’t know. Yeah, I like the hurricanes in Florida, so I’ll just stay right here. Well, thank you so much for being on the. We’ve been chasing you down for months to try to get you on the show. And, uh, the first question I have for you is, I know that you do a combination of different types of litigation. How do you, how do you approach say a trucking slash transportation case where the injuries are catastrophic, maybe even a death case, versus maybe something corporate-based where you have two companies going at it and it’s more of a financial injury? Can you talk about, because those are two very different types of cases, right?
[01:25] Brad Yeah, I tell people it’s, it’s funny. I’ll one day be in a board meeting with the Board of Directors discussing a, a corporate matter, and then the next day I’ll be at Flying J talking to a driver, uh, in a trucking case. It’s, it’s, uh, it’s a tale of two cities sometimes, you know? It’s, a lot of it has similarities and a lot of it is totally different. Um, you know, whether with the, with the, with the corporate cases or the commercial litigation cases, you know, defining what damages are or defining what liability is tends to be this very gray area. It’s not always very clear who did what wrong.
A lot of times on an intellectual property or trade secret case, it’s not clear if it’s a trade secret. There’s an argument to be made. What are the damages from that? You know, sometimes the damages are, are way beyond what we consider or see in the transportation cases. You know, a bad wrongful death case can be five million dollars to 50 million dollars. You can have a business devaluation case that’s worth 150 million dollars. Um, so usually there’s a lot more skin in the game on the commercial lit side because you’ve got, you know, it’s people’s businesses. They’ve worked their whole life to build something.
Um, on the transportation trucking side, you’re normally dealing with an insurance carrier. A lot of times you got a self-insured retention, but then you get a nexus carrier or an access carrier on top of that. And it’s not, um, normally, I mean, sometimes you have cases that are about the business, but the commercial lit stuff seems to be more about the business, the trucking stuff not. What’s interesting is the experience I have in the trucking world really translates well to being an aggressive defensive plaintiff employer on the commercial lit side because—
[03:01] Bill Oh, wow.
[03:01] Brad You know, the commercial lit folks haven’t learned reptile, right? They don’t know how it’s, how it’s used or how it works. Um, so I’ve used it as a plaintiff lawyer to my benefit on some commercial lit cases. You can reptile anything if you know what you’re doing. And certainly a lot of times, um, the silk stocking, you know, boys and girls get together on some of the commercial lit cases and expect there to be a whole lot of gentle hand-holding on defense cases. And obviously we, I tend to be more aggressive in defending depo. So, um, I think all in all, it’s worked out okay for my clients and I’m still here, so I think ultimately that’s a… yeah, it’s a weird mix though.
[03:36] Bill Okay, so Brad, that’s interesting that you brought up reptile in, um, different types of, uh, case, maybe non-trucking or non-medical malpractice. Do you, um, it’s like rather than the safety is always first or, uh, protection of safety, safety is a top priority… I imagine when it comes to commercial issues, it’s things like fairness or transparency or loyalty in like contract things. I would imagine you can just change the words in the reptile questions and get the same result, right?
[04:12] Brad Yeah, exactly. I mean, that’s, that’s exactly it. It’s whatever the focus your case is, like, you know, good faith and fair dealing, uh, value of trade secrets, um, uh, intellectual property. I mean, the, the beauty of reptile in some respects is its simplicity. Um, and that’s why I think it’s so effective is it is so simple for people to comprehend. When you’re the person doing the reptile, it’s very simple for you to just try and approach things in this almost painfully dumb way of, “Is there anything that you’re more focused on when you go into a contract negotiation than acting fairly with the other side and, and working in good faith?” Well, the law requires you to act in good faith and have fair dealing. So that’s the immediate, that’s the anchor, right?
So that guy’s the person says, “Yes, of course,” and then, you know, it’s, it’s for me, it’s a lot of fun. I mean, it’s, it’s one of the things that’s helped me be really good at defending reptile stuff has been doing the reptile stuff on the other side. Um, it just shows, you know, if you can teach it or if you can do it, then you can usually defend it. Um, but again, I have the benefit of having sat in a lot of your seminars and read all your papers, so that’s helpful.
[05:20] Bill Yeah, it’s funny enough, uh, you know, DRI’s most popular and most revenue-producing webinar ever was when we did the reverse reptile to try to teach defense counsel, “Hey, you can use this stuff.” You just got to learn how to do it. And once you learn how to do it, it can be really effective whether it’s against a plaintiff or a, a co-defendant or an empty chair. Uh, it does work. So hopefully the defense counsel will continue to embrace that.
Let’s talk about witness testimony, uh, because again, in both of those types of cases, whether it be trucking, transportation, or corporate, um, the preparation of these witnesses is really vital to your success. Do you feel that it’s easier or more difficult in either one of those scenarios, or they just, they both have their unique set of challenges?
[06:11] Brad Yeah, they’re, they’re both really unique. Um, on, on the trucking side, um, it’s a little bit easier to prep a witness because, um, they tend to be less sophisticated. I mean, that’s not the always rule, but the general is your truck drivers may be less sophisticated than your COO or your CEO of a company. Um, but so, so what I started doing on the, on the tr… on the trucking side is when I prep a witness—well, two things.
The first thing I do now when I get a PMK depo notice is I file a motion for protective order. I mean, that’s like, hello to all my plaintiff bar friends right now. Yes, I’m gonna file a motion for protective order. That’s just my initial 100% is I’ll get the notice and within a minute or two, I’ll send an email that says, “When can we meet and confer on my protective order?” And the response is always, “Well, what do you mean?” And I say, “Well, what does, you know, what does training and hiring and supervision have to do with the case where I’m admitting course and scope?” and California’s got some good case law on that.
And, and so what is, uh, our safety protocols for all accidents have to do with this accident? I mean, a lot of times the depo notes, you can get a sense of where they’re going to go with some reptile stuff. I mean, you may know the plaintiff lawyer, you may just be able to see what’s going on. You may think, “No, the judge in this case is going to tell me, no, the depo’s got to happen. The plaintiff lawyer is going to say I’m entitled to broad discovery.” Stop. I mean, respectfully, stop.
The plaintiff bar is… the plaintiff bar doesn’t care if their motion has any valid validity to it. Look at how many motions for issue sanctions and evidentiary sanctions and, and things that they put in front of the judge and you scratch your head and you say, “None of this is true, none of this is accurate. I can’t believe this person’s signing a declaration or an affidavit to a judge on this.” They don’t care.
So I got news for you: you actually have a leg to stand on. Go in front of the judge and say, “Here’s what I’m worried they’re going to do.” And, and we now have case law from, from your case, Bill, um, in Indiana and some other cases across the country where judges are saying, “Look, we’re not going to let you run roughshod.” That’s your opportunity to go in and say, “This is a real thing.” Don’t let the plaintiff bar act like they don’t… “I don’t know what a reptile is, what does this mean?” Uh, I mean, you see it all the times. “What’s reptile? I’m entitled to…” Yeah, they play very ignorant.
So, so go in and do that protective order straight away. And if you don’t get it, look, at a minimum, you’ve educated the judge on the questions you’re gonna instruct your client not to answer, or, or whatever you’re gonna do to try and step in.
Now on the, on the corporate side, you normally the deposition notices, the depositions of the, the 30b6 witness are very different, right? They’re very focused and specific. Um, the approach tends to be much more direct to exactly what you’re going to do. You may have multiple 30b6 witnesses. There’s no safety director they’re looking for, there’s no dispatch person. Um, on the one hand, that person tends to be more educated in a traditional sense, which creates two problems. So one is they think they’re the smartest person in the room, which is the most dangerous thing possible. And two is they think that they can explain things away forever. And that’s one of the things you teach is don’t talk forever because it never works that good for you and the jury never knows what the heck you’re saying. Um, so those are the two big differences there for, for what we do.
[09:23] Bill Uh, excellent explanation. Let’s talk a little bit about this concept of cognitive fatigue. Um, as you know, I just authored a paper. Uh, it was just accepted for publication, uh, for the International Association of Defense Counsel, very, uh, prestigious group. And the reason I wrote the paper was because I saw some pretty disturbing trends, particularly, um, we’re talking about deposition where I would be called in to prep a witness for trial, but I had not worked with them for deposition.
And I would read their deposition, I would watch it, and I would notice that I could pinpoint errors based on where they were in the shot clock, right? Um, or the game clock or whatever. And it was amazing how these witnesses were just getting cognitively—combination cognitively and physically—worn down. And then they would say ridiculous, crazy things because they weren’t thinking straight because they were just out of gas. Can you talk about your experience with witnesses? Uh, because I, I know that attorneys rarely get tired, but witnesses, the amount of mental energy put into testimony, I don’t think it gets enough respect.
[10:41] Brad Yeah, I mean, I thought… I really look forward to your paper being read by as many people as possible because I think that it’s a good example of, um, of where we’re, we’re off the mark as a defense bar and we gotta get a lot better. So, um, the first thing I would say is if you’re not more tired after defending a deposition than you are from taking one, you’re not doing it right.
Is the defense… look, um, 100 percent of the time when I’m defending a deposition, I am exhausted by the end of the day. When I’m taking a deposition, honestly, no, I’m not, not tired. It’s pretty simple. I can continue to ask questions and figure it out as I go. And if I misstep, and I can go back and fix it and ask the question the right way. If, if I’m the one defending and I haven’t properly objected to a question, or I haven’t… you know, people will accuse me of coaching all the time and right, wrong or otherwise, I look at it as representing my client. But if I’m not trying to be there to try and defend the client in the right way in that depo, then I’m not being a defense lawyer, I’m being a punching bag.
So I, I am always exhausted by the end of the deposition. So I’ve always used some of it on, to the point where I start to feel not cognitive fatigue, but to the point where I start to feel like I could use maybe a 30-second break to go check my phone, take a walk, have a sip of water, because you can’t do all those things at once. And if you’re a successful lawyer, I got news for you: your phone’s gonna ring, your assistant’s gonna knock on the conference room door, something’s gonna happen that’s gonna distract you for a minute and you just can’t, you can’t afford that. You can’t afford that moment of distraction.
For witnesses, I would ask everybody who’s watching the podcast, thinking about it: how many times have you walked outside after you’ve taken a break and your witness looks at you and goes, [exhales] “Man, I am… how am I doing? How am I doing?” And they do this big exhale and they’re just… you see it in their eyes. They’re just done. I mean, they’re exhausted. And the plaintiff lawyer is being tough and, and you know, you know she wants to keep asking questions, but you know that your, your person is just out of gas.
So what I’ve started to do is, is everybody has got this hour-long rule they usually… “Oh, we’ll take a break every hour for the court reporter.” Listen, I don’t care what excuse you have to use. You drink too much iced tea at lunch, uh, you’ve got a judge calling you to the line in another room… whatever it is, you got to be thinking about taking breaks every half an hour to 45 minutes at the most. Because that way you’re not getting to the point where your witness is tired; you’re getting to a point where your witness is still feeling fresh. And by the way, taking those breaks throws off the other person.
[13:14] Bill It does. Let’s discuss that because I go into this exhaustively in my paper. And, um, and I know that taking those more frequent breaks is probably gonna irritate the questionnaire, which we don’t really care about because we’re worried about the testimony. But the, the scientific research behind this is crystal clear. Once you start getting to that 35, 40, 45 minute, that’s like the yellow light. After that, it’s a red light. And all of these defense attorneys go with that one hour or hour 15 minutes. It’s a completely preventable… you know what it is? I’m gonna go reptile here. It’s an unnecessary risk in which you’re needlessly endangering your own damn witness, correct?
[13:57] Brad Yeah, I mean, and, and so let’s, let’s think about where the logic of this one-hour thing came up from, right? So the logic was a court reporter. Yeah, a court reporter can only cognitively hear the words and have their fingers go for about an hour before there, there becomes a disconnect, right? Yeah. Um, I got news for you: your witness’s ability to follow what the questions are and stay focused on the training that you’ve given them before the depo—like several times before the depo on key cases in particular, that prep…
I mean, look, if, if you’re a defense lawyer and you’re taking an expert’s depo or a plaintiff’s deposition, what are you trying to do? You try and get the person into a cadence, right? Question, answer, question, answer, question, answer. You try and do it so the other side can’t interfere, so the objections don’t get in there, so that the person who’s the witness is not thinking… they’re thinking, but they’re just answering your question without recognizing where you’re going. And the second you hook them in that cadence, boom, you got ’em. And then you just wait until the moment where you can set the hook and then there, they’re done for.
The plaintiff bar is doing the same thing. So what should you be doing as a defense lawyer in my opinion to protect your witness and your client? What you ought to be doing is throwing off the cadence. The second you feel like two, three questions in a row, you should be saying, “Hang on a second. Can you go back and read that question again? I didn’t understand that.” Even if it’s “What’s your address?” Something that just throws the cadence off, right?
So to me, taking those breaks is the ultimate cadence stopper. And I would, and I would tell, I would challenge people: if you think that we’re wrong, you think I’m wrong and Bill’s wrong, get to a part in a deposition where the plaintiff lawyer starts to kind of get you to a spot where you’re not feeling comfortable. They start asking questions that are in that reptile world. You’re not sure if they’re reptile because they’re being well-disguised; you’re not sure if they’re not. Your witness is getting a little bit antsy. Some of the questions are starting to get weird. And by the way, some of the answers starting to get weird.
Take a break. Take a 15-minute break or a 10-minute break. I’ll bet you a beer on me when I next see you at a conference that the plaintiff lawyer will forget about what he or she was talking about at that moment. They’re now thrown off their game, and they’re going to look back at their outline or notes and say, “Okay, let me go to this exhibit.” Now when they go back and they read the transcript a couple days later, they go, “Oh my God, I had that guy right there and I almost got it, and then I just abandoned it. I went to a whole different topic,” right? I mean, that’s something you got to do to take those breaks.
[16:29] Bill Yeah, I mean, there’s a psychology about it. I promised we would not talk about baseball—I’m going to break my own rule—but this is the equivalent to the batter stepping out of the batter’s box in the middle of the wind-up and the pitch and the call timeout. And the pitcher’s like, “There goes my rhythm, there goes my timing.” And it really irritates pitchers when the batter does that. It happens in every game because you don’t want that pitcher to get the, to get that rhythm, because that’s how a pitcher throws a no-hitter. They get into a rhythm. And if you don’t break up that rhythm, you’re screwed.
The other uh, part I talk about in the paper is what counts as a break. If you’re, particularly in your corporate cases, if your executive-level witness during the 15 minutes spends their time looking over their stressful emails and yelling at their secretary, that’s not a break. You want to talk a little bit about what you do with your witnesses during the break? Because if they’re working during breaks, they’re not getting the rest that they need.
[17:24] Brad So, so a couple things. One is I now try and make sure that depositions that I’m involved in are no more than half a day. Um, I think that the, the all-day rule can be a bad thing depending upon your witness, right? By the time it’s four o’clock, no matter how many breaks you’ve taken, that person’s going to be at the end of their, at the end of their—to use the baseball analogy—that their, their pitch count is so high they’re going to be serving up meatballs and it’s just, you’re asking for trouble. Um, what I do during breaks is I try and, and have a mixture of reassuring dad and angry, like, high school coach, right?
So reassuring dad of, “Hey, that was, that was great. You, you focused. Um, I thought it was great when this question was this and then you hit it out of the ballpark just like we planned. You said that.” And I try and high school coach and say, “Look, one of the things you’re doing that’s making you tired is you’re not giving that, you’re not giving that, that couple beats in between, right? You’re getting, you’re getting locked into those longer, those longer answers because you feel like you’re gonna explain it away, right? Remember what we talked about in prep was X, Y, and Z.”
You got to have that mixture of… you know, a partner I learned it from was, it’s a, it’s a velvet glove covering an iron fist kind of thing. It’s, it’s a little bit of, “Hey, you’re doing really good, but look, let’s stay focused, right? We’re getting to this next spot. This is when the tough stuff’s going to come. You’ve done great so far, let’s stay focused.”
And you with the lawyer, I think, have to stay aggressive at that point in time. You know, one thing I’ve talked to lots of clients about is they feel like they’re, their lawyer preps them—which is in their mind an hour the day before—says, “Here’s that the order of things and let’s talk about one issue,” and then they go in and all of a sudden, here comes this haymaker early in the game and they’re like, “Why, why didn’t I see this coming? Why didn’t you tell me? Why wasn’t I…” you know? And so to me, you as the lawyer, prep is key.
Um, you know, on trucking cases, Bill, I’ve, I’ve started just making an objection that it’s an improper reptile question. Why do I, why do I do that? Simple enough. What’s the worst that can happen? It tells my client, “Remember that like hour and a half or two hours or three hours we spent talking about these really bad reptile questions and that they’re tricks and setups and that we need to look out for them and make sure we’re prepared for them? You’re not have to try and discover them on your own. I think they’re an improper question period, legally.”
So I’m going to object and say, “Objection, that’s an improper reptile question. And counsel, you know it’s an improper question. I’ll let my client answer it, but I’m going to keep a close eye on you continuing to do this.” Well, what did my client hear? All they heard is “reptile” and they go, “Oh, Hughes told me in prep when these reptile questions come, I need to be ears alert, you know, ready to go.” And the plaintiff’s lawyer is going to say, “What? You can’t object to reptile.” I’m like, “Whatever objection I want on the record.” Um, and to me, I think that’s, that’s an effective way, at least it’s been effective a lot of cases.
Um, so one thing I will say, Bill, that I think people underestimate is you get a phone call before trial and the, the question is, “Hey, we now realize this case is worth more than what we thought. We’re really worried about exposure. Um, it turns out our… we think that maybe defense counsel hasn’t given us a straight-up read on this or the mediator is telling us things look a lot worse than they are. Can you come in and help?” At that point, aren’t, aren’t most of your hands, at least one and a half of them, tied behind your back because you’ve already got the depo testimony? What are you going to do then?
[20:51] Bill It’s really difficult. Yeah, one of the other things I’ve noticed is when you take a witness who really wasn’t trained appropriately for dep, you make them a superstar for trial and then they play some of that deposition… either transcript or the, the video. And you have a tale of two very different witnesses, and that makes jurors very suspicious, um, because everybody figures out, “Gee, something must have happened between depo and trial,” and it’s pretty obvious.
So that’s why I think going with the deposition preparation um, and being very aggressive early in those cases is really important. And I tell you what, let’s wrap up the podcast with ending with I think maybe the hottest topic going on right now is zoom-based or virtual depositions. What’s been your experience and what do you think some of the pluses and minuses are? Um, I’ve had very mixed, uh, reviews from, from across the country.
[21:53] Brad Yeah, I don’t have any pluses. Um, I’ll be, I’ll be totally honest with you. I, I think that people that have tried to put lipstick on this pig are just doing that. I don’t know there’s really… there’s really much… there’s much pluses to you as the, as the lawyer defending the deposition. I mean, look, there’s something to be said for, for having your hand on your client’s arm as a question’s getting asked that you want to object to. There’s something said about that ability for that person to be next to you, for you to sense their attitude, their concerns. There’s something about when they take that sip of water and look over at you and give you a look like, “Did I screw that up?” kind of thing, that you just don’t get in a Zoom depo.
I mean, you lose the humanity of it. When it comes to taking a deposition, you absolutely lose the ability to try and get that person where they’re across the table from you. I mean, you’re right here with them and, and you’re able to block out the reporter and the lawyers and say, “You know, look at the piece of paper. I mean, I’m not crazy, am I?” Um, you lose that human aspect of it.
Can you do a lot more witness depos? Sure, you could take a lot more witness depositions. You can get those done a lot simpler. You don’t have as much difficulty in getting people to where they need to be for that position. Sure. For, for the critical depositions, um, I’m an outlier. I, I still say do what you can to try and push them off until you can be there in person. Um, folks are getting the vaccine now. Some clients are okay with you being in the room with them with masks on. Um, whatever your comfort level is, I, I would say go to that extreme where if you can be with your client in the room at least while they’re being deposed on Zoom, that’s, that’s the bare minimum.
Um, especially on key depositions. The, the plaintiff bar is… if, if you’re not following the plaintiff bar, if you’re not following them on social media, if you’re not reading their, their publications, if you’re not listening to their webinars and podcasts… if you’re not doing that, you’re doing yourself, um, I think a really a massive disservice. They’ve got so many things planned of what they intend to do and how they’re going to do it. And if you’re not prepared for that and ready to go, then I got an answer for you: when the courtrooms open back up and you’re not prepared for that opening statement that’s going to talk about what we all learned during COVID about the value of life and the value of time with family members and the value of being with people and not being separated… if you’re not prepared for that, then I don’t want to say you deserve what’s going to come to you, but you, you kind of deserve it.
[24:26] Bill Yeah, I agree. I would say it’s your own fault. And I would also say that the plaintiff’s bar, it’s not like they’re hiding any of this or trying to… they’re wide open with it. They’re telling you how they’re gonna punch you in the face. And if you let yourself get hit, I think that’s, um, I think that’s on you, right?
[24:45] Brad Yeah, and I will say, I mean, most of the stuff is open. Some of it they only want for plaintiff lawyers, so you know, don’t attend that ethically and get stuff in that hot water. But, but what I will say is, you know, I, I did a couple things early in the quarantine where I watched some stuff that the plaintiff, one of the plaintiff groups put together, and it had to do with, you know, specific types of brain injury cases, specific types of spine injury cases. And these were put on by the, the best spine and brain injury lawyers that California has.
And I was candidly expecting this “aha” moment, I’m going to figure out how they do it. And I had a lot of solace walking away from me that, saying, there’s nothing special at all. There’s no secret to the sauce. It’s exactly how we always thought they did it. And, and that makes you feel more confident with, “Okay, you can come up with your response to it.” But I mean, like, if you think that most of these guys, uh, the Morgan & Morgans of the world, the, the Brian Panishes of the world—if you think they’ve just spent their, their quarantine flying around enjoying their houses all over the world, they have. But it, but in the meantime, they, they’re, they are chomping at the bit to go and absolutely hammer. So every low settlement you got because of COVID, be prepared for that number to go up significantly, especially in your bad jurisdictions like LA and other places.
[25:56] Bill Absolutely. Well, I look forward to working with you near future, Brad. Thank you so much for being on the podcast. Again, we’ve been waiting a long time to get you on. I think this will be, uh, received very well. Uh, be safe out there in LA and, uh, let us know when we can come out and visit you.
[26:12] Brad Can’t wait, man. We’ll go to another Dodger game—the world champion Dodgers.
[26:16] Bill Hey, the world champion Cubs have no chance this year. Again, I’m not going to go there because I don’t, uh, I don’t want to get depressed, uh, at midweek. So, uh, but Brad, thank you so much. We’ll see you next time. And to all of our audience, thank you again for participating in another edition of the Litigation Psychology Podcast. Thank you and see you next time.
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