The Litigation Psychology Podcast

Steve Wood, Ph.D. & Bill Kanasky, Jr., Ph.D. join host Ava Hernandez to talk about what they have been seeing in the cases they have been working on recently. Steve shares that he's been seeing more jurors who are expecting fact witnesses to remember all details from the incident and talks about how to address this issue. The group discuss the pros and cons of the legal strategy of withholding documents from witnesses or not showing witnesses videos or other documents prior to their deposition, in particular corporate reps. Bill shares an insight he recently heard from a successful plaintiff attorney: cases are win or lost in the first or second deposition. Steve, Bill, and Ava talk about how many witnesses get so upset about personal questions asked at deposition and how it needs to be handled. They also share a positive trend they have been seeing of more attorneys and clients doing early assessments on their cases, sometimes even before a suit is filed or before depositions have been scheduled. Lastly, they talk about seeing some encouraging signs of sharing and collaboration on the defense side and more of a focus on the mental health of witnesses. Watch the video of this episode: https://www.courtroomsciences.com/r/OID

Medical malpractice defense attorney Michael Denning of Heyl Royster joins Bill Kanasky, Jr., Ph.D. to talk about the timeline of litigation in medical malpractice. First, Michael and Bill touch on the mental stress of being named in a lawsuit and the importance of making sure the physician or named defendant is doing okay and checking in on their mental health. They discuss the process of building trust with the defendant and issues that arise around finger pointing and defendants who are worried about their reputation if word gets out that they are being sued. Michael and Bill talk about preparing for deposition and how defendants are so often misinformed about what the purpose of their testimony is and how their deposition really needs to be prepared for and handled. They also discuss the challenge of working with foreign-born witnesses and how all witnesses must embrace their conduct and decisions. Lastly, Mike and Bill talk about the trial phase of litigation, the direction that needs to be given to defendants about what to expect at trial, and why they are a focal point for the jury even when they are not on the witness stand. Watch the video of this episode: https://www.courtroomsciences.com/r/F8L

Bill Kanasky, Jr., Ph.D. joins host Ava Hernandez to discuss his background and how he got into the litigation consulting industry. Ava and Bill talk about how their backgrounds in clinical psychology allow them to assess and prepare witnesses in a way that attorneys are not trained to. They also discuss the ethical challenges with the tension that can occur in working with witnesses, the emotional and mental issues that a witness may be dealing with and addressing their psychological wellness prior to witness prep. Lastly, Ava and Bill offer their insights on what they see in the future around litigation. Watch the video of this episode: https://www.courtroomsciences.com/r/PrO

Chuck Ingram, Partner with Estes, Ingram, Foels & Gibbs, P.A., joins Bill Kanasky, Jr., Ph.D. to talk about the discovery stage of medical malpractice litigation. Chuck discusses the importance being proactive during the discovery phase in med mal cases and how he approaches discovery differently based on which plaintiff firm has filed the suit. Bill and Chuck also talk about developing younger attorneys, managing co-defendants, strategies for admitting liability, the value of jury research, over-reliance on expert witnesses, and dealing with emotional nurse witnesses. Watch the video of this episode: https://www.courtroomsciences.com/r/Pgv

Shane O'Dell, Member, Naman, Howell, Smith, and Lee & Mike Bassett, Trial Attorney, The Bassett Firm, join Steve Wood, Ph.D. to talk about some of the misperceptions of the defense bar. The group discuss what the Reptile Theory is really all about and that the purpose of the Reptile Theory is less about scaring the jury and more about empowering them. Mike, Shane, and Steve discuss the evolution of Reptile to The Edge and what is different about The Edge from Reptile Theory, as well as what they are seeing as best practices from strong plaintiff attorneys. The group also talk about the importance of establishing a relationship with your defense witnesses, how best to approach opening statements, and the value in testing with focus groups and mock trials. Lastly, they discuss counter-anchoring, how to approach providing an alternate damage figure for the jury, admitting liability, and humanizing the corporate defendant. Watch the video of this episode: https://www.courtroomsciences.com/r/p97

Kristi Harrington, Certified Mediator and Arbitrator with Kristi Harrington Dispute Resolution, joins Bill Kanasky, Jr., Ph.D. to discuss mediation and alternative dispute resolution in medical malpractice cases. Kristi shares her background and the help she offers clients with alternative dispute resolution and mediation. They talk about issues they encounter in medical malpractice cases and ways to get the most favorable and reasonable outcomes in mediation. Kristi and Bill also cover what to look for when hiring a mediator including someone who understands the medical field, someone who can be empathetic to both parties, and someone who is committed to the process to ensure there is an acceptable resolution for all parties. Bill and Kristi discuss the criticality of early assessment of cases with data from mock jurors to help with case preparation and not simply using prior verdicts or similar cases in that jurisdiction. Lastly, they talk about the importance of having a good presentation for the mediator and helping the mediator understand the nuances of your case which aids them in doing their job. Watch the video of this episode: https://www.courtroomsciences.com/r/R5S

Leah Miller, Fractional CFO, LNM Financial Services LLC joins Bill Kanasky, Jr., Ph.D. to talk about law firm finances. Leah and Bill define key financial terms such as revenue, expenses, profitability, and talk about the complexities that crop up as a firm grows. Leah shares the guidance she gives her clients on how often they should be looking at their numbers and describes what a Fractional CFO does and how it differs from a CPA or bookkeeper. Leah and Bill also discuss setting goals, managing cash flow, and what lawyers and law firms need to watch out for in their spending. Watch the video of this episode: https://www.courtroomsciences.com/r/oAw

In part 4 of our medical malpractice litigation series, Ava Hernandez joins Bill Kanasky, Jr., Ph.D. to discuss preparing mid to higher-trained nurses for deposition testimony. BSNs, MSNs, Nurse Practioners, Nurse Managers, Charge Nurses, and similar nurses have significant responsibilities and often come into their deposition with a different perspective than an LPN or less-experienced nurse might and therefore must be prepared and handled differently during deposition prep. Ava and Bill discuss how sometimes these nurses have to contend with blame that may come from the plaintiff and/or the plaintiff's family, from physicians, or even from other nurses and that some nurses may react with guilt, shame, and anxiety to the adverse patient outcome and the litigation itself. Ava and Bill talk about how critical it is for attorneys to understand the emotional burden these nurses are carrying when working with them in deposition prep and take into account the human aspect of what is going on with the witness. Watch the video of this episode: https://www.courtroomsciences.com/r/Epa

Will Stute, Partner at Orrick, joins Steve Wood, Ph.D. to discuss the work he did on Gee v NCAA in which he won a defense verdict. Will provides some personal background and ways he has honed his craft and then relates his experience with defending mass tort cases. He gives an overview of the strategy behind this bellwether case (Gee v NCAA) he worked on, plus his insights on leveraging jury research for his cases and his approach to jury selection. Will and Steve talk about how best to leverage objections, the feedback that jurors in this case provided after their verdict, and also the media coverage and cameras in the courtroom for this trial. Lastly, Will and Steve discuss the importance and process of preparing witnesses for testimony. Watch the video of this episode: https://www.courtroomsciences.com/r/5fR

Jeff Willis, MD, Owner/Physician Consultant of On-Call MedLegal Consulting joins Bill Kanasky, Jr., Ph.D. to talk about consulting for medical malpractice attorneys. Dr. Willis specializes in pre-litigation and pre-trial services, working as a member of the legal team from intake through resolution. Dr. Willis provides case merit analysis, precision medical expert matching, case strategy development, and deposition preparation. Jeff and Bill discuss expert witnesses, the differences between a D.O and M.D., legal nurse consultants, and the differences between plaintiff attorneys and defense attorneys in how they manage medical malpractice cases, Lastly, Jeff and Bill share their fears and concerns about healthcare in the future. Watch the video of this episode: https://www.courtroomsciences.com/r/3tG

Trial Attorney Cody Gomora from The Wolf Law Firm, P.C. joins Bill Kanasky, Jr., Ph.D. to discuss how younger attorneys can navigate their role as civil litigation defense attorneys. Cody shares how his experience in the district attorney's office and trying criminal cases gave him invaluable courtroom experience that he now applies in his civil litigation defense work. Bill and Cody also discuss generational differences between attorneys, between attorneys and jurors, and talk about the impact and influence of social media in litigation. Lastly, Bill and Cody discuss the importance of mentorship for younger attorneys. Watch the video of this episode: https://www.courtroomsciences.com/r/7Sv

Bill Kanasky, Jr., Ph.D. talks about the role and impact of expert witnesses in medical malpractice litigation. Bill shares that typically expert witness testimony doesn't get you very far in med mal cases in terms of juror decision-making. This is due to the fact that the expert witness is unable to directly evaluate the patient unlike expert witnesses who can, for example, evaluate defective parts in a product liability case. Expert witnesses in medical malpractice cases can help with case evaluation and help with preparing the case, but their testimony does not influence juror decision-making. One area where an expert witness can make an impact is with the visual presentation of the case and their ability to teach. The most important influence over juror decision-making will be the testimony and performance of the fact witnesses in your case.

Steve Wood, Ph.D. & Bill Kanasky, Jr., Ph.D. commemorate the 200th episode of The Litigation Psychology Podcast and discuss the misunderstanding many have about the correlation between juror anger and outsized verdicts. Steve and Bill share the scientific data that Courtroom Sciences has collected and analyzed to understand the role that juror anger does or does not play in nuclear verdicts. Steve and Bill explain the process of collecting the data and how the results show that although juror anger is a factor in large damage awards, it is a small percentage when compared to other factors. Watch the video of this episode: https://www.courtroomsciences.com/r/GSV

In the first part of a series of episodes about medical malpractice litigation, Bill Kanasky, Jr., Ph.D. talks about nurses sitting for deposition, in particular, the LPN, and the importance of the initial meeting and communication with these nurses. These lower-level nurses often struggle at deposition due to their nervousness about the process, fear of the ramifications, potential blame issues, etc. It's critical to meet with these nurses as soon as possible, checking in with them, seeing how they are doing, and demonstrating that you care about them as a person. Bill discusses how crucial the initial assessment of their mental, physical, and emotional state is before any prep for the deposition starts. Also, it is important to ask them difficult questions about their job, including whether there have been issues at work previously, whether they blame anyone else for the incident at the heart of the case, and their specifics memories of what took place. Lastly, Bill talks about getting their commitment to work with you to prepare for their deposition. Watch the video of this episode: https://www.courtroomsciences.com/r/c3S

Steve Wood, Ph.D. is joined by Sean Murphy, Practice Leader of CSI Critical Communications & Brent Turman, Partner with Bell Nunnally to talk about social media in the courtroom. Sean begins by talking about cameras in the courtroom and gives the example of the narrative around Donald Trump's upcoming trials and his team's request for allowing cameras in the courtroom. Brent shares how important public opinion can be in some trials and how that may influence the wording in different motions that the trial teams may file, even if that language may not be legally necessary but instead may be influential for the narrative in the traditional media and social media. The group offer their perspectives on the Johnny Depp and Amber Heard trial and how their legal teams did and did not leverage social media to influence the court of public opinion, as well as, how documentaries about different trials have an impact on the reputation of the litigants involved. Lastly, Steve, Sean, and Brent discuss other social media and public perception considerations that should be factored in when managing litigation. Watch the video of this episode: https://www.courtroomsciences.com/r/XDk

Bill Kanasky, Jr., Ph.D. is joined by Brendan Dawson, Founder of Accident Plan, to talk about how the Accident Plan software helps guide truck drivers to manage and secure an accident scene when an incident occurs and capture the critical data to be shared with others offsite. Brendan shares how the training for truck drivers using Accident Plan allows them to be more prepared and follow a process and checklist when dealing with an accident. Bill and Brendan talk about the return on investment on being proactive and getting stakeholders informed quickly and early so that claims can be handled effectively and at the lowest possible cost in terms of money and time. Brendan also discusses the work he does in private investigation for both the defense and plaintiff side. Brendan offers his advice to defendants to investigate yourself; to know your own weaknesses and shortcomings before opposing counsel does it for you. Watch the video of this episode: https://www.courtroomsciences.com/r/zVu

Steve Wood, Ph.D. & Bill Kanasky, Jr., Ph.D. kick off 2024 with another episode answering podcast listener mail. Questions addressed: - How can I deal with anchoring by plaintiff's counsel? - Is it okay if my witness wears a nose ring to her video deposition? - How can I deal with an ex-employee who is not willing to cooperate in their deposition prep? - Does it sound bad for a witness to respond to a question with "I don't know"? - Is it better for a female attorney to cross-examine an adverse female witness? - Should I use the Reptile book during my closing argument to help jurors recognize what the Reptile attorney is doing? - What are things that the defense team can do that really bother the plaintiff's team?

Steve Wood, Ph.D. & Bill Kanasky, Jr., Ph.D. talk about the impacts of PTSD (post-traumatic stress disorder) on witnesses in litigation. PTSD can occur in several different types of litigation and isn't exclusively just in cases involving vehicle accidents or bad medical outcomes. Steve and Bill provide a checklist for defense attorneys on what to look for when working with witnesses to identify potential PTSD issues that may require additional time, assessment, or even treatment. Some signs to look for and/or questions to ask: - intrusive memories and thoughts; - negative changes in thinking and mood; - ask about their relationships and their support network; - assess their reactions and attitude; - how's your sleep quality?; - are you self-medicating/drinking?; - are you experiencing or dealing with physical pain? Watch the video of this episode: https://www.courtroomsciences.com/r/sRl

Bill Kanasky, Jr., Ph.D. talks about how to manage the teaching moment during trial testimony. When your expert witness or defendant is put on the stand with the goal of teaching the jurors something, your witness must meet the jury where they are. It's important to remember the concept of juror cognitive lag, which is that jurors will lag behind in their cognition and your witness has to understand that the jurors are not going to be able to follow along easily. So, the witness has to make adjustments to their teaching methodology and you and your witness have to practice the teaching process, perhaps up to 5-10 times. Common mistakes that are made during the teaching moment of trial: - Going too fast - have to remember that the jury can't ask questions or ask the witness to slow down. - Visuals are not juror friendly - exhibits and demonstratives need to be easy for jurors to understand and follow; it's important to test the visuals before using them at trial. - Talking above the juror's heads - have to define any terms that the witness is using that might be uncommon or unfamiliar to the jurors and use examples or analogies to help the jurors understand the concept the witness is trying to teach or explain.

Bryan Aghakhani, Partner, Bordin Semmer joins Bill Kanasky, Jr., Ph.D. to talk about the attorney perspective on the deposition. Bryan states that cases are won or lost at deposition and that the preparation before deposition, and being actively engaged at deposition with objections, is key for defense attorneys when defending depositions. Bryan and Bill discuss the difference in preparing a fact witness and a corporate representative 30(b)(6) for deposition and also talk about the strategy and approach for taking a plaintiff's deposition. Bryan shares his thoughts on taking the deposition of the plaintiff's expert and the philosophy around hiring an expert for the defense. Watch the video of this episode: https://www.courtroomsciences.com/r/HvF