Dr. Bill Kanasky, Jr. describes pre-litigation preparation and talks about the importance of investing in these tools before clients are involved in litigation. Bill shares how more and more clients are proactively evaluating, assessing, and training potential corporate representatives and expert witnesses in advance of litigation. The 30(b)(6) witness is a really important role and making sure the best representatives are selected is critical. Potential corporate representative and PMK candidates are put through an advanced neurocognitive witness training and then tested with mock deposition questioning to help clients evaluate a witness’ potential and opportunities to improve before they are called to testify at deposition. This pre-litigation training is being used for corporate representatives, safety directors, physicians, and others and helps them be confident and ready in advance of litigation. Dr. Kanasky also shares his insights on the concept of double anchoring. He describes the importance of conducting jury research to test admitting liability and alternate damages figures and attacking the plaintiff’s number by presenting a reasonable counter amount. Testing different figures with multiple mock juries allows you to find a number that won’t be perceived by the jury as low-balling and helps you develop a strategy for how to approach presenting alternate damages figure.
Full Episode Transcript
[00:05] Bill Welcome to the Litigation Psychology Podcast, brought to you by Courtroom Sciences. Dr. Bill Kanasky here, solo edition, giving Dr. Wood an episode off. Guy needs his rest; he’s been working really hard. This would not be a long podcast today, but an important podcast.
We are talking about pre-litigation preparation. What is pre-litigation preparation? Well, our clients are very interested in being ready for litigation, particularly with their witnesses. They want their witnesses to perform well, and we’ve had several clients essentially come to us for two reasons, saying number one: “Listen, um, we have potential corporate representatives here or internal experts that we know are going to have to testify, and we’d like to evaluate them. We’d like to see who is the right person to to put up for deposition.”
Oftentimes the corporate rep that had been there for a decade or two has retired or moved on, and you have some new people. And corporate rep—I mean, that’s a big job. The 30(b)(6) witness deposition is a really important job and oftentimes can determine your fate in litigation.
[01:30] Bill So, what our clients wanted was—well, can you—and they they kind of called it a boot camp of sorts. Uh, I I can use the analogy of the NFL combine, right? You have all the players in, you have all the coaches in the stands, the players are running their 40s, uh, 40-yard dashes, they’re doing their vertical leaps, they’re doing the shuttle run, they’re catching passes, doing all kinds of things, and they’re being evaluated by the by the experts in the stands.
And really that’s what we have done, which has worked out very, very well, is to um, go and go into the corporation, uh, put various people through our witness training program specifically designed for corporate representatives, uh, which is part one. And then part two: have them perform. Have them perform. Have them run—not run the 40-yard dash or do the vertical, uh, I don’t think I want to see a 30(b)(6) witness doing a 40-yard dash. That sounds like a—sounds like a pulled hamstring to me. Uh, but to put them through mock deposition. Put them through a mock deposition. Have one of their outside counsel come in, and role play plaintiff’s counsel for the afternoon.
This can take, uh, this could take a couple days as you’d want to rotate these folks through and see, “Okay, well you’ve been trained, you’ve gone through the Courtroom Sciences um corporate rep witness training, now let’s see how you do.” And then grade the witness. Give the witness uh feedback on their strengths and weaknesses and see how good we can get them until we figure out really what their ceiling is.
[03:06] Bill It it’s a really important process because what we have found is that oftentimes the most knowledgeable person, the person that the company wants as the corporate rep, is just an atrocious—they’re an atrocious witness, right? Um, and maybe the person not as knowledgeable is a great witness. And now we have a problem. And so we’re trying to help our clients figure out what is the best way to do this. Who should we pick?
And that is a process that we do, and we can do it in multiple stages to really evaluate the witness’s potential. Give them some homework, right? Come back, do it again. And by the end of a couple sessions, you’re gonna figure out uh who should be your corporate representative or or person most knowledgeable, um, PMK—that’s another one. And so that’s been, um, I think that’s been very, very valuable to our clients to figure out who the right person is, because the way it was happening last time is the tryout was the real deposition.
So if the witness, the 30(b)(6) corporate rep, bombs the deposition, well, not only do you have “Okay, well this person may not be the right person,” but now you have probably a pretty large exposure that you’re going to have to deal with that the plaintiff’s attorney is likely going to, you know, hold over your head to get more money. So that’s a pretty expensive way to try out witnesses. We don’t recommend it. Also because that deposition is going to stick with this witness for multiple cases. So if they screw up in those first couple deps, now it can be used against them going forward.
[04:44] Bill So, much more aggressive, proactive, and just very, very wise to put them through this—this—this boot camp, this combine, uh, as part of the pre-litigation, meaning before there’s an actual case, and see what you have. So that’s—that’s really very, very, um, wise.
Other clients, they know who the corporate rep is. Okay. But they want their corporate rep, who may testify, you know, a couple times a year—they don’t want to wait till a case is filed to get that person ready. So other clients have called and said, “Well, hey, can you take our current set of—” and not just corporate reps. Uh, in the transportation industry, safety directors. I just had uh someone from a medical group calling me about um physicians. Physicians at hospitals and clinics who would like to go through training prior to litigation to be at the top of their game.
And so as you know, you know, when the other team kicks off the ball and there’s a touchback, you know, you start on the 20 or the 25-yard line. What this service would provide is allowing you to start in the 50-yard line rather than at the 20 or 25, because your witnesses have been exposed to the litigation process, they’ve gone through the most advanced training possible, and so then when a case is filed, you’re not starting from scratch.
[06:17] Bill They also know the training team, too. So when a real case is filed and then we come in on the more case-specific issues, they’re off and running. They could take a—usually go through a booster session of sorts to get them ready for deposition. And we’ve had great success with this over the last couple of years.
This is a trend that’s growing because you have a very uh aggressive, a very well-prepared, uh, and a very organized plaintiff’s bar who communicate with each other. And um, they don’t come into these depositions screwing around. Therefore, the more preparation the better, the more training the better. And again, to have these people up to speed, uh, doing that essentially during the off-season, right?
Training during the off-season is—is important with—with any professional athlete, college athlete. Well, same thing for witness. If you know witnesses—there are certain witnesses that are going to have to testify. It’s not a matter of if; it’s a matter of when. To have them going through that type of training annually or even maybe twice a year to always have their minds on how to be an effective witness, uh, to—to understand what the reptile theory is. It’s really difficult teaching witnesses reptile theory to start off with.
[07:40] Bill Particularly, you’re coming into a case—say it’s a high exposure, important case for the client—and not only are we preparing the witness for the case specifics—the facts, the exhibits, uh, the allegations in the case, right?—but we also have to do this reptile stuff to get them ready for that. It’s a large burden, and that’s one of the reasons why corporate witness prep takes so long, because there’s a lot to cover with just the reptile stuff, how to be an effective witness, and then you’ll have all the case stuff on top of that.
So what this would provide is, for lack of a better term or phrase, batteries included. Your witness would come in batteries included to litigation. They’ve been through training, uh, they—they know—they’ve been through very sophisticated reptile training. So when they do get the call of “Hey, you know, we’re gonna need you to testify in this case,” they’re not flipping out. Okay? They’re way, way, way ahead of the game. And then once we start our real prep for the actual case, it—I mean, the results uh tend to be much better.
[08:51] Bill But what does that require? Well, that requires that the company um put in the time, the effort, the money, the investment into such pre-litigation training. Now, given what I do—and you’ve heard all of my—I typically start off the—the podcast with a rant. And much of the time it’s a rant about um money expenditures, because certain clients don’t want to pay for certain things because they have a “save first” type of philosophy as opposed to a “win first,” proactive philosophy. This is very, very proactive, and I gotta tell you, I have not had any pushback whatsoever on doing this. I think the results are proven. And I think with anything in life, the more prepared you are, the better.
[09:41] Bill The other reason why this is so important is that the plaintiffs bar, including the reptile folks, their methods change over the—the year. They continually evolve. They come up with—with new tricks, right? They come up with new traps. And to be able to—kind of like your—your—the software on your phone upgrades, right, every—every couple months—well, so does—so does your enemy’s game plan. So to be able to deliver that and essentially, you know, upgrade your witnesses’ uh brains—really, really important.
So again, they’re always up to speed, always on the cutting edge, rather than the old way of: case is filed, there’s a ridiculous demand, everybody’s very stressed and nervous, then you’re calling your corporate rep saying, “Hey, we’ve got this big, big problem,” and now you’re starting from the 20-yard line, um, if not your own 10-yard line in some circumstances.
So this has been something that’s been working out very well. Uh, if you’re a trial attorney listening to the podcast, I would talk to your clients about this. Because particularly the corporate clients—corporate clients, let the people that you know—these people internally are going to be deposed. And again, we’re talking the—the corporate safety—I’m sorry, the corporate representatives, the safety folks, the people most knowledgeable. You’re gonna get um a lot of benefit uh from that.
[11:13] Bill And I tell you the number one person that ends up appreciating it the most in the end is the actual witness. Because then when they come into the act of litigation, again, their hair is not on fire. They’ve been down the training road before. They come in far less nervous, less anxious. And so this is a win-win, um, really for everybody.
So I want to start this podcast talking about that, because I think as you all know, if you have a corporate rep dep goes south, it’s the gift that keeps on giving—case after case after case. And to try to switch out corporate reps um in the—you know, in the third quarter of the game, uh, mid-stream, I think is something very difficult. And again, then you’re starting from scratch. Now this is a way to both evaluate your witnesses to figure out, “Do I have the right person?” and with these people, “How much work are they—are they going to need?”
You know, and sometimes we go back to the client saying, “I’m sorry, this—you know, this is going to be a C-plus witness. This is their ceiling.” Other ones start out as a C-plus, they end up at an A-minus. And there’s no real way to determine that unless you put them through the training, put them through the combine, the boot camp, right, and figure it out at a much cheaper price point than throwing them into the deep end at that position, having them fail, then trying to fix their failures, and then those failures in the deps are going to follow them into subsequent depositions. Bad, bad, bad.
[12:50] Bill Let’s shift gears here into a different topic. This is a topic that’s been—it’s always been a popular topic. Um, it’s not a good topic, um, because there are cases in which uh you have to admit liability and you have to have a damages argument. On liability—I’m sorry, on damages, because you’ve admitted liability. So you’re really talking about damages here.
And defense counsel is concerned about putting out an alternative damages model because they’re scared that it may make them look like they’re um guilty, guilty, guilty. Uh, but I think the bigger part when I took a note here for is—I think it’s the perception of lowballing. And that’s actually a very valid point. In all of our focus groups and mock trials, many jurors essentially very quickly come to the conclusion that the alternative damages model is pretty much strictly designed to decrease the overall damages. It’s not really a valid number. It’s a—it’s a counter-anchoring technique. And it is—[Laughter]—it is. You are lowballing—I mean, let’s—let’s just call it what you are. Lowballing because you want that damage award to come down.
[14:10] Bill The problem is the perception of lowballing can tick off the jury and get them to start to multiply damages um to make things hurt. So we have something called—uh, this is something we’ve done very successfully. We have not talked about this yet. We have not written about this yet because it’s a relatively new technique, but I wanted to share it with you.
Everybody knows what anchoring is. Let’s back up. Anchoring damages—this is what the plaintiff attorney does. Meaning, you want to provide a number that serves as an anchor, preferably the only number out there if the defense does not give a number. And then it’s a psychological anchor that the jurors gravitate to, and they start to work from that number. Meaning, they don’t start from zero and work up; they’ll start from the anchor and work down, or maybe even up depending on—on how you set up your um your—your—your damages arguments.
[15:05] Bill And so that’s the danger of not providing an alternative damages model—is that if there’s only one number out there, the jury only has one number. Which is why in the vast majority of cases, you really need to come in with a lower number and a number, hopefully, that you can justify. So now they have two numbers to work with. And they don’t—they don’t always end up in the middle, but the middle is a hell of a lot less than the anchor that they’re going to put up.
Also because what the plaintiff’s bar has learned is that if they throw out some ridiculous number out there, the jury may cut it in half on the conclusion that they’re sticking it to the plaintiff attorney. We had a mock trial recently where um the—the defense counsel that was role-playing uh plaintiff’s counsel—we—we decided we’re gonna ask the mock jury for 150 million dollars, because we felt that’s what the plaintiff attorney was going to do based on previous experiences with this plaintiff attorney.
[16:09] Bill So again, we do the mock trial, we throw out the 150 million dollars. Of course, the defense throws out nothing. Not good. And what ends up happening? The jury comes back at 75 million dollars, thinking, “Hey, we’re doing the defense a favor. We’re taking this absurd number and we’re bringing it down to something more reasonable.” Well, that’s the 75—75 million dollars. Not a reasonable number for most of my clients. And that’s the trap that you tend to fall in.
So this new technique is called double anchoring. And we’ve used this—um, I won’t say several—we’ve used this a good handful of times, and has proven to work by removing the perception of lowballing. The problem is the clients don’t like it, but it works.
So what we did—we had a case out in Los Angeles in which um it was an admitted liability case. The uh plaintiff attorney—who shall go unnamed, you all know exactly who he is, um, so you can figure that out pretty quickly—um, he pretty much called before the trial and said, “I’m asking for 140 million dollars.”
[17:24] Bill And what we did was we set up an alternative damages model and essentially said to the jury, “We’ve evaluated this case. We’ve hired experts to go through the damages—the medical expenses, the pain and suffering, um, all that. We think a much more reasonable value for this case is 10 million dollars.” 10 million dollars is a lot of money. “And we think 140 million dollars is—is quite absurd. We think that’s way—way over the top.”
And that’s another thing that you have to do in these—you have to attack the plaintiff’s number. Jury selection, opening statement, closing arguments—you have to attack it over and over and over again. Because if you don’t do it, and don’t do it early, it really provides—it provides a validation, a reinforcement of that number whether you know it or not.
[18:22] Bill Now, the—so our—our—our counter anchor was 10 million dollars. So we got 140 versus 10 million dollars. But what we did to the jury is we said, “Listen, we want to do the right thing here. We are here in this co—in fact, the only reason we’re here in this courtroom is we—we—we brought our checkbook. We—we want to give this plaintiff money, but we also want to follow the law. And the judge is going to instruct you in the law, which means fair and reasonable damages. Where in the world is 140 coming from? Well, no one—no one really knows, right?” And we try to justify what our 10 is.
“We don’t want to screw this up. We want to do the right thing. So what we’re going to do—even though our experts said it was 10 and we think it’s 10—we’re going to put—we want to write a check for 15 million dollars today. And we think that that’s going to not only be fair and reasonable, but to kick it up, right, to kick it up a notch to make sure we’re in the right, because that’s what we want to do here.”
Jury comes back at 17 million dollars. Very upset plaintiff attorney looking for the nuclear verdict. Um, client wasn’t thrilled, believe it or not, because they want—they don’t want to spend 17 million dollars, right? They want to spend zero. But again, it’s admitted liability. It is what it is. And they—they had to essentially invest more money to get these—this damages um award lower.
[19:50] Bill And then what happens is, when you talk to the jury after such a tactic, the—with the perception you’re trying to create—and again, it’s—it’s—it’s a fine line that you’re—you’re walking, it’s a tightrope—is that you’re trying to create the impression of “We’re a defendant trying to do the right thing here. Okay, yeah, we could lowball. We’re not doing it. Okay, we are not doing it. Instead, we’re gonna do the opposite. We’re gonna tack on money to this to be sure that this family or this person is taken care of.”
And I got to tell you, um, had a really, really positive uh impact um on the juries that we’ve—that we’ve used this with. And I think it’s something that we need to explore going forward because it’s a real—now, now the other thing—let me—let’s—let’s really talk about this—is it’s very dangerous to do this in the absence of jury research because you don’t really know what’s going to tick the jury off.
[20:48] Bill So it’s very, very wise to do one, if not two, jury projects to test those numbers, right? To actually test: is this actually going to play out? And then play with that number. You know, maybe the number’s not 15, maybe it’s 12. Or maybe you start at six and you double it to 12, right? Think about that. There’s a perceptual difference there, coming at six and say, “You know what, we’re gonna—we’re not—the defense isn’t even comfortable with six. We’re going to double that to 12.”
And if you think about the significant cost savings you’re getting there—even if the jury came back at 20, right? Or say they double—say they double 12, they come back at 24. Well, 24 million dollars is—is a hell of a lot uh cheaper than 140. So there are some things you can do. Um, it requires planning, it requires testing, it requires some courage and some faith that it’s going to work. Because I will say this: if you don’t put a number out there, it’s going to hurt, because that anchoring effect does work.
[21:54] Bill You have to have a counter anchor. Secondly, you have to make sure the counter anchor’s not too low. Because if it is, then the jury’s gonna be mad at you thinking that you’re lowballing. And again, let me remind you: you are lowballing. You are lowballing. But it’s the perception of lowballing, right? Hey, even at 12 million dollars or 15, you’re still lowballing, but you’re doing it in a way that is perceived very differently if you only have two numbers. Okay? One’s perceived as exaggerated, one’s perceived as the lowball. But if you put a third number in there that’s a little higher than the low number, it does have an impact on jurors.
[22:34] Bill Now again, this type of technique is really in its infancy. Uh, we will test it more. We don’t work on a lot of cases in which there is admitted liability. However, there are other cases in which you are fighting on liability and you still need to give the alternative damages number.
Go talk to Bob Tyson over at Tyson & Mendes. You know, he wrote the Nuclear Verdicts book. Bob and I have spoken together several times. Bob and I talk all the time. He’ll be the first one to tell you: you better give a damn number, even if you’re not admitting liability. All right? And you have to do that early.
And what I mean by that is in voir dire. In jury selection, you have to tip this jury off. “Hey, I’m giving a different number because I disagree with their number, and that’s my job. That’s my job as an attorney. I’m—I’m—I’m not giving another number because I think my party did anything wrong. I’m giving another number because it’s my legal and ethical obligation to defend my client at every turn in this case. And one of the main issues in this case is damages, and I’m going to do that. And does anybody here have a problem with that?”
[23:43] Bill And you plant that seed and you water it over and over. Secondly, once you get to that opening statement, you better attack the plaintiff attorney’s number. You have to come right out of the gate in the first couple minutes and say, “That number you just heard is absurd. It’s insane. And it’s not fair, and it’s not reasonable. Okay? The judge is not going to ask you to award a lottery ticket verdict. The judge is going to read you instructions, and those instructions are going to have these two words: fair and reasonable. We think what we have is fair and reasonable, and we intend to—to show you that.
At the same time, we don’t even think you’re going to get to that—that point on the verdict form. We think that we’re going to—we think that we’re going to—we think that we’re going to prove this case on liability.” And you set that up very, very early. If you—if you don’t do it that way and you wait till your closing argument, the anchor has already been set. You haven’t had the repetition of attack on the plaintiff’s number, and it’s going to lead um to trouble.
[24:50] Bill So it’s a pretty complex topic. It’s a pretty complex topic that I’m sure we’re going to revisit. If you have any questions about this, you know, everybody can find me: bkanasky@courtroomsciences.com. Go to our website, uh, www.courtroomsciences.com. Happy to get on the phone with you to talk about this, and particularly if you have a case on how to do this. But I think really the testing of it with a mock jury is really the key.
All right, I have to—speaking of that, I have to hop on a conference call with a client. Uh, thank you for participating in another edition of the Litigation Psychology Podcast. We will see you next time.
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