Attorney Matt LaBeau with Collins Einhorn Farrell joins Dr. Steve Wood to discuss preparing emotional witnesses for deposition. Matt talks about the different types of emotions that witnesses might be struggling with (sadness, anger, nervousness) and how important it is to identify in advance if your witness may be an emotional one so that the attorney and consultant can offer the proper level of preparation and training. Matt shares some examples of emotional witnesses he has worked with where things went well, as well as the story of a challenging witness whose testimony ended up sinking the case. Steve and Matt give examples of depositions where the emotional witness gets themselves into situations where the attorney can’t do much to help and how that can be avoided with advance preparation and training. They also touch on Reptile and the impact of Reptile plaintiff tricks, plus difficult witnesses who won’t meet with the attorneys and how to find ways to work with those types of witnesses. Matt shares the approach he uses when identifying an emotional witness including determining what their emotions are, how he meets and talks to them to make a connection, how he takes time to explain the process and help them understand how to deal with opposing counsel, etc. Lastly, Matt and Dr. Wood discuss the challenges of Zoom depositions and managing the witness’s needs in a virtual setting and the impact of cases related to Covid deaths and the challenge of witnesses for those types of cases.

Full Episode Transcript

 

[00:45] Steve Welcome to another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences Inc. I am Dr. Steve Wood, and what a better way to start off the show than with what’s likely an attorney’s worst nightmare. You spend all this time prepping and prepping and prepping your witness in order for them to give good testimony, and as we saw in the video, the witness goes completely off the rails and has an emotional meltdown. And that’s what we’re going to talk about today. We’re going to talk about emotional witnesses and preparing them for deposition. Here to help me talk about that is attorney Matt LaBeau. Matt, how are you?

[01:20] Matt Good, how are you doing?

[01:21] Steve I’m good, thanks for joining the show. Hey, can you just kind of give the audience a little bit of overview about, you know, what your office does, who you work for, and kind of what your area of expertise is?

[01:33] Matt Sure. Sure, our firm is generally, for the most part, a defense firm and we do a number of different practice areas. And mine is much geared towards auto and general liability, and so it ends up being a lot of defending insurance carriers or their insureds when they get sued. Or, you know, you might have homeowners getting sued or contractors getting sued, that sort of thing, defending them, you know, in litigation like that.

[02:06] Steve Okay, and I see, actually reading your bio, that you were actually named as a rising star from 2012 to 2020. Correct?

[02:15] Matt Yeah, yeah. I don’t know when my star has been rising for a few years here, I don’t know when it’s gonna get to the top, but it’ll get there.

[02:24] Steve Well, well definitely then goes to show that you’d be good to talk to this then. So, in your experience, how has it been preparing these emotional witnesses for deposition?

[02:34] Matt Um, yeah, if you know about it beforehand, um, it’s not bad, it’s just a lot of, you know, a lot of work. Um, if sometimes though, you know, you have witnesses, they can be um, sad, you know, kind of tearful sort of thing because they’re, you know, upset that it happened. Um, you could have folks that are pretty, they get pretty angry because they’ve been sued. Uh, and then, you know, you also get the folks that are real nervous, kind of intimidated, and sometimes those emotions don’t pop up till you’re, till they’re in the chair. But um, if you know, if you know beforehand, it’s like I said, it’s just kind of a good amount of work.

Uh, my—this topic really, when this was introduced to me, the topic, I have this one witness that just absolutely comes into mind. You talk about emotional witnesses, I had a case where this young woman in her early twenties was heading to her new job in Chicago, and uh, on the highway a guy in a motorcycle wipes out in front of her. And she ends up hitting the guy, and she’s very upset about it happening. Uh, she had to—she had psych treatment and needed a lot of therapy to help kind of get her okay, get her to be okay again.

And uh, we were able to identify that early on. Uh, her insurance carrier knew about it, we talked about it a lot, you know, and so I knew she was pretty upset about it. So we were able to meet with her several times, and I think she hadn’t even—we had like a prayer thing before just to kind of help her go, you know, that’s what made her tick. And so we got her through it, took some breaks and things like that, but um, you know, if you don’t know about it, it’s pretty unsettling. Uh, but if you do know about it, you can prep and you can kind of get through it, you know, but it can be tough.

[04:25] Steve How did that deposition turn out with you taking that approach of prepping and spending a lot of time talking with her and getting that out?

[04:32] Matt Real well, actually. I mean, you know, there was a couple times where we got to the point of how the accident happened, and she, you know, she had to walk out and kind of be, you know, had to take a break and kind of collect herself. Um, but I—she afterwards, I think the whole—she had her whole family there as it was, as it ended up being. And um, I think they all—she felt okay when it was done and it went fine. She really—she got through it.

[05:01] Steve Yeah, yeah. I think one of the things that that is important to keep and keep in mind, right, is a lot of these these people are being deposed for the first time. They’re scared, they’re nervous, they don’t know what to expect. And like I said, that’s one of the things that we do as well when we’re working with attorneys to help, you know, train their witnesses for deposition is focusing on that and kind of having those therapy sessions right before you just launch into going, “Okay, here’s how we’re going to do it, here’s how you should testify in the case, here are all the case facts.” Like, spending that time to really do the human side and understand and work with the witnesses to get them to feel comfortable before they go into deposition. Because many of them are going to be deposed for maybe the first and hopefully the only time in their lives, so it’s going to be stressful as it is.

Um, so what have you found though as far as, you know, that was a good—that was a good outcome as far as being able to identify that ahead of time and work with the witness ahead of time, but you got any horror stories? I know we all like to hear the good horror story to help—

[05:59] Matt Oh yeah, yeah. Oh yeah, yeah.

[06:01] Steve Yeah, what have you—some of the most difficult cases that you’ve worked on?

[06:05] Matt Yeah, I, you know, like uh, like the one I just talked about, like the emotional one, that’s a lot of work on the front end. Um, but I would say during the deposition, probably the more the nervous person or the angry person is the tough one. But I think the nervous one is the hardest because sometimes that creeps up. Sometimes people are doing just fine—”I’m great, I’m doing just fine”—and um, and I had a witness, she was the representative of an insurance company, like an adjuster.

And um, she was fine, she’s good to go, I prepped her for several hours. And I think she maybe wasn’t as prepared as she thought she was. She sat down in the chair, it was on video, and I think that worried her as well. And I have to tell you, I mean, we had a great defense, we had a great case. Um, I think we could have tried it and won eight or nine times out of ten. And she sat down in that chair and just—I mean, did just was like um, stone faced. And pretty much gave the opposing counsel whatever they wanted in terms of an answer. And they were—they were—they were respectful, they weren’t mean or anything.

Um, but I just sat in my chair and at times he took a few breaks and I had some discussions with her to kind of remind her. At that point, some of the admissions had already happened and the bells had been rung, but I was trying to remind her, “Hey, remember we discussed this, remember we discussed that.” And um, I—I mean, I think during it, was like kind of watched—it was kind of like a train wreck you couldn’t stop. And uh, I mean, at times, you know, she could tell it was going terrible and uh, I was trying to get her through it and all that. But it just completely—most of the time, depositions don’t like completely sink your case. That was one that did. It absolutely did and it was tough because it was my client too.

So we had to kind of, uh, I guess kind of deal with that later, you know, trying to make it, “Hey, trying to point out some of the weaknesses of the case without making it look like they are the one that messed it up,” because you didn’t want to—you didn’t want to make them feel bad, you didn’t want to put them in that spot. But that’s the one that really comes to mind, you know.

And some of these nervous folks, I had one I remember a guy, he had a photograph put—he said that the light was, let’s say it was you know, red or whatever—whatever it was, a certain color at some point. And they put a photograph of him—it was a Google image—of around where they happened to be, right around where the accident happened. And you really couldn’t see the light, but this guy insists that he saw the light. He puts his photograph in front of him and, you know, he just switches everything. “And I guess no, I couldn’t have seen it,” and all that. I afterwards I talked to him, I said, “You and I talked, you said you saw the light.” “Oh, I saw the light, I absolutely saw the light.” “What happened?” “Because he showed me that photograph.” And I was like, “Oh.” You know, just because you saw, you know, it—you saw what you saw. You know, and it was the same kind of thing: intimidated, nervous. It just came out of nowhere, you know. So that’s tough.

[09:07] Steve And I think that’s one because one of the things that we find to be difficult as well is that witnesses is we want to forget their amygdala hijacked and they have that fight-or-flight uh-oh moment when they’re in the midst of it. And either they’re gonna fight, where they’re gonna argue like you said, like more of the angry witness, or you’re gonna—or you’re gonna, you know, flight and gonna be the nervous person and just, “I’m gonna give you whatever you want just here, take—take everything.”

And I think that’s one of the key things that a lot of—a lot of clients don’t understand as well is that when you have a situation like that where, you know, you have a witness who you have a strong case, you think you’re going to win like you said, you’re going to take it to trial and win eight or nine times out of ten, and then the witness goes in there, they’re nervous, they haven’t been—you know, you do the legal prep and stuff but you know you haven’t addressed the psychological issues of it. And then they’re thinking, “Oh yeah, this is gonna be fine, I go in there, no big deal, no big deal.” And then they go in there and they, you know, bomb the—bomb the deposition. And before you know it, all of a sudden now what was a smaller demand, now all of a sudden is a bigger demand.

And I think makes—reminds me of a case that, you know, I had seen as well where you had some medical professionals who did nothing wrong medically. They did not—they did not make a mistake medically. This was a case involving an anesthesiologist, a nurse, and a surgeon. And the anesthesiology and the nurse had done nothing medically wrong; the surgeon had made a mistake. The problem is the anesthesiologist and the nurse go in there and they, you know, get emotional and they—they start speculating on things and they start giving additional information. And before you know it, plaintiff counsel says, “You know what, now I’m—I’m gonna pull my settlement offer before that I had before. Now, you know what, I’m going to trial, and not only are we going to trial, I’m taking that deposition video of those anesthesiologists and that nurse and I’m gonna play it in openings.” Right, because now I got some bad facts that I’m gonna be able to play.

So have you—have you had any experience like that or anything where you’ve had where your depositions have gone so far off the rails that from an emotional witness that it’s then made that case become even more expensive than it would have been?

[11:19] Matt Well, that’s—that’s um, that story I just said was one of them for sure. Um, and yeah, I’ve had similar ones where—and it’s normally like I said, it’s normally these folks that they—and a lot of times I feel like it’s uh, one of my more institutional clients as opposed to individuals. Uh, most of the time they’re the ones like they, you know, they—they think they know things better than they do, and then they’ll walk in and there’s been times where we’ve had to give—they’ve given some admissions and it’s just like, “Oh man.” And uh, like you said the attorney looks at you and says, “You know, yeah, you know what just happened, right?” You know? And it’s—it’s unsettling and that’s really at that point, yeah, you’re doing that—you’re doing damage control.

Um, and you know, those—if it’s going bad in the middle of it, you try to do what you can to maybe find a way to take a break and kind of refresh and see if it just calms them down. And sometimes it does and sometimes you get some reminders in there. But um, yeah.

[12:28] Steve It’s hard, right? Once that—once—once they get that emotional train rolling, it’s really hard for it to stop snowballing and not become an issue. And you know, once that happens, it’s really, really hard to keep control.

Especially nowadays with, you know, these reptile tactics, and I know you have an attorney in Michigan who is very good at those who shall remain nameless, but if you’re a Michigan attorney, chances are you know he is. Um, but have you had any really run-ins with that as well where you’ve had these reptile attorneys or these attorneys that have actually used these aggressive approaches to try to push the buttons of witnesses?

[13:03] Matt Oh yeah, yes. Yes, I have. Uh, I just saw that recently. Um, and it seems like you get them in, you know, premises cases like commercial auto cases like a uh, like rideshare type or, you know, buses, trucks. And uh, oh yeah, I remember I—I had one witness and unfortunately this one was one where, I don’t know if this falls into an emotion, but she was generally just disinterested. She kind of didn’t care and so she wasn’t listening as closely as she should have been. And he was framing the cases as a matter of choices, like “you made these choices.” And it starts to make it look like you look a lot more reckless and you look a lot more uh, you know, I mean just generally almost bordering on intentional. It makes it look really bad when you’re acting with choices as opposed to, “Hey, and I just was following too close, you know, I made a mistake.” It wasn’t like I—you know, “my bad,” you know, I made a mistake. But he—you know, it’s funny, yeah, they—they’ll do that.

And uh, again, it’s kind of like the—the more, I think, the more even-keeled the witness, the better they are, the better they are able to um, react to that, you know. Um, you know, I would even say uh, I generally do, you know, you talk about like kind of angry folks. I find that I identify them—usually they’re the easiest ones to identify because they have no problem telling you how angry they are.

[14:36] Steve Yeah.

[14:36] Matt And uh, and then usually you can kind of calm them down by saying, “Listen, you know,” you kind of almost try to make it less personal for them, get it—get 10,000 feet, you know. And uh, and a lot of times those folks—and also they’re really angry, so I think they’re very focused and they usually do okay. Um, every once in awhile I’ve had some anger kind of stuff pop out. I had a really nice farmer, his company was getting sued and one of his drivers that they had—they’ve had him for years and they love him—but they were really trying to make him look like he was this bad guy because he did have, you know, some stuff on his driving record, but it didn’t bother him. And I remember he started snapping back at the lawyer because he out of nowhere, I think he just got real angry. It got personal, you know. And another kind of thing where, you know, thankfully that one wasn’t—you know, he just kind of said some angry stuff back, nothing—you know, nothing that they could kind of use as a clip.

[15:34] Steve Yeah, that’s always—that’s always a bad—that’s always a bad sign, right, when a witness is trying to argue with an attorney because that’s never going to be something that they’re ever actually going to win. And that actually brings me up, when you were talking about angry—angry witnesses, as to—as we found too that angry ex-employee, that’s—that’s always a—that’s always a fun witness to try to prepare, right? Talk about being emotional. They have—they have no—they have no real motivation to want to be a good witness because they’re pissed off at their company and now, you know, they’re angry that they’re in the lawsuit and stuff. And now they become a complete nightmare and who knows what they’re going to say. I mean, I’ve seen before where cases have settled on the eve of trial because you have angry ex-employees who are about to get on the stand and you don’t—even if you think that you have them under control, you don’t. You’re—you don’t dare put them out on the stand and try to, you know, who knows, and try to play a guessing game on what’s going to come out of their mouth.

[16:26] Matt Yeah, that’s a tough one, you know. And a lot of those folks, they don’t want to meet with you to prepare. They want nothing to do with you. And a lot of times you got to find something to make them—make them care, if—if you will. If they will meet with you, you got to find a way to make them care.

[16:43] Steve Yeah.

[16:44] Matt Um, and that’s right, it’s really unsettling even when you can make them care. A lot of times they still um, you know, they a lot of times they’re just—even—even then they’re still disinterested and they aren’t listening like they should. Um, and the ones—you just kind of hold, and it is kind of holding your breath on those, because there isn’t a lot you can do with that when they start, you know. A lot of times, too, they’re—they’re kind of testifying somewhat, sometimes on behalf of your client technically speaking, but they’re an adverse witness and you’re just—oh yeah, those—those don’t go well.

[17:21] Steve Yeah. So, kind of bring us home then with a few nuggets to take home for the listeners as far as those people out there who are getting ready to prep emotional witnesses. Kind of what are your approach to it and what are your thoughts as far as how to handle that?

[17:34] Matt Yeah, I mean, I think uh, you identify—you identify when you have somebody that’s emotional, whether it’s, you know, you’re—if it’s—you’re, you know, it’s an individual you’re representing and it’s your client, or it’s an organization where there’s multiple, you know, maybe there’s going to be multiple people that are going to be represented and defended at these depositions. You want to identify who’s emotional and what the emotions are.

And that’s—that’s probably the number one thing, because when you’ve got those identified, then you can meet with them, you can sit down, you can connect with them. And that’s one thing, you know, you want to identify: are they angry, are they nervous, are they sad? And kind of find that issue and—and meet with them and connect with them, and meet with them a lot. You know, um, you know, have an—an initial meeting. That’s a lot of times when the folks sometimes will let it out to you. Make sure you make it clear to them—there’s certain instances where they are your client, they are pro—it’s privileged. Make it clear they can tell you everything, and don’t be afraid to pry with them a little bit to see if there’s something there.

And then, like I said, connect with them and see what’s making them upset, you know. Try to make it less personal, what’s making them emotional or sad. You know, like the young one I talked about, I mean, I made it clear to her, “You didn’t do a darn thing wrong,” you know? And I tried to make it too, like, don’t hate this guy—this guy’s got a client to represent, he’s going to question you. You know, even in that one, he wasn’t really always the nicest, but he—you know, you know, and he was good with her. Listen, even if he’s not nice to you, this is not personal, you know, he’s got a client to represent. Um, you know, or what’s making you nervous, you know, and try to comfort them with explaining the process, what might come up, that sort of thing. And you meet with these people a lot, a few times if you can. Um, and I think, you know, that that kind of, you know, will kind of help chill them out.

Um, I think also if you have any level of a relationship with your opposing counsel, it’s good to kind of, and you know they’re not going to use it, it’s good to give them the heads up because I know—and certainly sometimes I’ll be made aware of it and sometimes I’ll just pick up on it when people are emotional. Um, I—I try not to, especially when it’s ones where they’re really nervous or they’re really um, they’re really upset and sad, because it doesn’t really do—in my opinion, if it’s an opposing witness, I don’t think it does me any good to make this nervous person to try to, you know, make them, you know, really kind of run all over them, or if they’re sad to make them extra sad. You know, I—and I think most people will hear that and say, “Okay, you know, thank you for letting me know,” and I will—you know, and therefore you kind of you have your antenna up and you try to make your questions so that you’re, you know, you’re getting what you need, but you also are avoiding at times unnecessary—you know, unnecessary issues like that. Because really at the end of the day, you really want to get through it, you want to get the testimony.

Um, and then I think when you’re in it, when you’re in the midst of it, um, you know, I—you—you gotta, you know, hopefully you say—hopefully you’re ready for it, but even if you’re not, I mean, you know, if uh, you start seeing folks get angry, get flustered, um, make sure you say, “Hey, listen, you know, let’s take a break.” You know, I always have a thing in my prep, when I prep my witnesses, I explained to them, you know, you’re allowed to take breaks. Uh, and so that could be a real break, like you’ve been sitting there a while, you’ve got to use a restroom, you need to have a drink. It also could be a break like uh, you’re—you’re nervous, you’re upset, we’re going down a road that we never kind of talked about. And I said, and if I ever ask you if you need to take a break, the answer is always yes. Okay? Don’t—don’t say, “Oh no, I’m good.” No, it means I’m noticing something.

And now, right now, we’re doing a lot of Zoom depositions. I find that to be a lot harder to control the situation a little bit to say, “Hey, let’s take a break.” You kind of grab them and get them out of there.

[21:52] Steve Yeah.

[21:52] Matt Yeah, you know, I’m good with putting my hand up, you know, you can kind of do things almost like a non-verbal barrier, you know. Um, so we’ll hopefully get back to that sort of stuff uh, soon, but you know, even—I think then we got to be more attentive to that and just kind of whoa, whoa, and say, “We need to take a break and let’s talk.” You know, grab your phone and cell phone and get them on the phone and talk with them, you know. But take, you know, identify it. Take—right, if opposing counsels using those emotions to try to get—because I told my witnesses, I said, “Listen, they’re going to try to make you angry, they’re going to try to make you upset. They want you to start answering questions without thinking, because that’s when you get into trouble, when you aren’t listening to the whole question if you know—and they want you to start giving them stuff um, that you maybe wouldn’t normally give them because you aren’t—you know, you’re—you’re kind of out of your head a little bit.” And when uh, you know, and so if I see counsel trying to do that, I will try to jump in and protect them and let them see that I’m protecting them. Um, but at the end of the day, you know, you got to try to maybe take breaks, sit down, calm them down, and then hope you get through it. You know, and hope that the end is near, you know.

[23:10] Steve I think you brought up something else that I want—I actually just—it made me start thinking because you brought up Zoom depositions. You know, with we’re still kind of hopefully getting around the corner and on the downswing of COVID-19, and you know, we’ll get back to kind of normal. But I think one of the things to keep in mind as well, right, is that we have these witnesses who are going to be coming in who are impacted by COVID-19 and have had experiences or loved ones who have died from COVID-19. Or in just this—all of this motion that we’re talking about already, that’s already started, now it’s compounding more by COVID-19. So I think it’s going to be another thing as well, right, when you go in to start talking to your witnesses, is that it’s another factor that’s in the back of their mind. Especially soon, I’m sure, when the courts start opening and you’re going to start seeing cases—I’m sure you’re going to start seeing cases related to COVID-19 deaths. Now you’re going to have emotion built on emotion as well.

[24:02] Matt I think there’s that for sure, uh, and I think also I think you’re gonna have—if you think about just the process of being in person with folks, you know, I know—I recognize there’s folks out there, “Hey, this is no big deal,” and it doesn’t bother them, but there are a lot of people that are afraid to leave their house right now. And um, you know, and when we get in person, it’s going to be a little bit, you know, it’s going to be a little bit foreign. And I think it’s probably going to be important to identify, you know, “Are you comfortable with this?” You know, and if they’re not, make them comfortable. You know, um, maybe and find a way to do it by Zoom but you’re next to them, that kind of thing, you know. Um, and I know there are a lot—a fair number of attorneys doing right now who still have, you know, offices open and things like that, they are making sure they are with their client.

Um, but yeah, you’re—you are—you’re gonna be dealing with, you know, you—it’s gonna come up in various ways, you know, in terms of either whether it’s the subject matter of the lawsuit or let’s say you—it’s a case where you have somebody, the plaintiff is claiming uh, someone took care of them or there’s an important witness, there’s an important person that we’re going to have to talk about and maybe you lost them. You know, maybe you lost them because of COVID and we’re going to say, “Listen, this you’re going to—” I kind of hearken back to preparation, which I know it’s kind of, you know, that is—that’s the way that really at the end of the day you’re probably get through all of this. And there’s an example of identifying there’s an issue, you let them know it’s going to come up, get mentally prepared for this to come up, you’re ready for how you’re going to answer it, get ready for how you’re going to feel, and don’t worry, we can take our time and we can take breaks. You know, and just calm them down and kind of let them know how this is going to go. But yeah, you’re right, it’s—it’s going to come up in a number of ways and we’re going to have to be aware of that.

[26:01] Steve Yes, absolutely. So, Matt, great talk, I appreciate you being on. If someone wants to get a hold of you, if they have questions, want to talk more to you, how do they get a hold of you?

[26:11] Matt Um, probably email or—email or phone. Um, my email is matthew.labeau@ceflawyers.com. My—my phone number—haven’t been—our office has been closed but I do get my office number, so I don’t always give that out anymore because I forget it, but it’s 248-663-7724. Um, I’m always happy to take calls and emails and um, I do a lot of continuing legal ed in Michigan and I have lawyers call me on stuff or—or other folks like that. And I’m happy to take a couple minutes and kind of share my thoughts. I—I think we owe it to the profession to work together on stuff like this, and so I’m happy if anybody has—needs any—any any input or help, I’m happy to—happy to do it.

[26:59] Steve That’s a—that’s a great answer. That’s one of the things actually we’ve been harping on, right, is the defense bar needs to start getting better as far as communicating with one another and collaborating because right now plaintiff’s bar is doing that. And plaintiffs bars is ready to come out of COVID swinging and hitting these big dollar verdicts, so I think the defense bar needs to start doing that a little bit more and collaborating. So I think—I think that’s awesome. And if anybody needs anything from me, I can be reached at swood@courtroomsciences.com. Like I said, Matt, appreciate you being on. Hopefully have you on again, look forward to talking to you more on a different subject at a different time. This has been another edition of the Litigation Psychology Podcast. Thank you for listening.

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