The Litigation Psychology Podcast, presented by Courtroom Sciences, Inc. (CSI) is pleased to share Episode 3! This episode continues our series of podcasts on nuclear verdicts. This week Dr. Bill Kanasky, CSI Litigation Consultant is joined again by special guest Dr. George Speckart, a 35 year veteran of the litigation consulting industry, to discuss the impact of witness testimony on jury decision making. Dr. Speckart and Dr. Kanasky share some great stories from their experience and how witness testimony, and different types of witnesses, have a direct impact on juror perceptions of witnesses and how that can lead to nuclear verdicts.
Podcast summary (Episode 3):
Dr. Bill Kanasky
Welcome
to another edition of the Litigation Psychology Podcast brought to you
by Courtroom Sciences, where we can meet all of your litigation
consulting needs. You may need a witness that needs to be specially
trained for deposition or trial.
Dr. Bill Kanasky
You
may need a focus group or a mock trial to properly assess the economic
value of your case. You may need to do a mock trial to get ready for
actual courtroom trial. You may need jury consultation to help pick the
right jury. And that's what we do, at Courtroom Sciences. And this is
episode three of our nuclear verdict series and it's going to be part
two with Dr. George Speckart who I'm going to bring in here in a second.
And today we're really going to focus on the impact of witness
testimony on jury decision making. This is a really big factor. I don't
think it gets enough attention and we're going to focus on that today
because we've seen countless times in which witnesses on a case that may
have a decent fact pattern; the witnesses can really torpedo a case if
they're not properly trained to both verbally and non-verbally do well
at both deposition and trial. So, let's bring in, Dr. George Speckart
here for part two of this. George are you there?
Dr. George Speckart:
Greetings everybody.
Dr. Bill Kanasky:
I'm
going to start off with a story, George, because it took me roughly
nine hours to get out here to California from Orlando, Florida
yesterday. And this is a case in which there's a hundred-million-dollar
demand and trial is in about 30 days. And they sent me the video
depositions of these witnesses and they're absolutely atrocious. So, I
kind of want to start there. What has your experience been with
witnesses that are really tanking in deposition and how that impacts the
trial team at trial?
Dr. George Speckart
Wow,
there's so many stories. One that comes to mind immediately was a class
action race discrimination lawsuit against one of the largest food
producers in America. And when a chief executive of this food producing
company said in his deposition about African Americans that the N word
could be a term of endearment. When you make those kinds of statements
early in the deposition, there is no escaping from them. They say, some
people say in this industry, you're handcuffed on a freight train to
hell at that point and can't get off. And you know, when people call us
up and say I need help, I've got a critical deposition coming. I think
to myself, thank God these guys know how to use us.
Dr. George Speckart
Because
when the deposition has already screwed up, it's like going to a
gastroenterologist and saying, I just drank a bottle of Drano. Can you
help me out with this?
Dr. Bill Kanasky
Yeah. Well not
one of our close friends Paul Motz who is a very active trial attorney
across the country that I speak with a lot said a bad deposition lasts
forever. And that is true because that deposition is going to come back
to haunt you. George, you've been doing this for over 30 years and I
just kind of want to get your general impressions of, as you came up
through your career, what you started to learn as far as when and how
jurors were making decisions and what the role of the witness ultimately
plays in that final decision by the jury.
Dr. George Speckart
Well,
I'm glad you asked that question because I've got another great little
story for you. It was 1983 and the jury consulting industry at that time
was in its infancy. And I started at a company called Litigation
Sciences in Southern California, which was a company that was started by
two marketing professors at USC. These guys were very clever. They
weren't psychologists, but they knew how to sell and they came up with
this adage; these are the guys that came up with the phrase that jurors
make up their minds during opening statements.
Dr. Bill Kanasky
We've
heard that forever. In fact, I've even heard they're making their minds
up in jury selection. I mean it seems like it keeps creeping forward,
but I think you have the real answer here based on your science.
Dr. George Speckart
Yeah.
And you know, that sent a tsunami through the whole litigation
community and people were buzzing about that concept for months, for
years actually. And I got assigned the task of doing post-trial jury
interviews, which means talking to real jurors about real cases, which
we consider to be the gold standard of validity in our industry. In
other words, this is where you actually get the truth. Talk to jurors
about what they did. And I was talking to some jurors and part of the
interview was when did you make up your mind? And they told me, we made
up our minds while watching the witnesses. So, I went back to my boss
and I said, what are we going to do? Because we're telling clients that
jurors make up their minds during opening statements and the jurors are
telling me that they made up their minds while watching the witnesses.
He says, well, just take that out of the report. So, he was still trying
to you know, do CYA maneuvers at that time. But it wasn't long before
it became very clear to us that the witnesses are the bank. You know,
litigators talk about when they do their opening statements, they need
the witnesses to cash their checks. Well, jurors are waiting to see
those checks get cashed. It they don't believe the money's in the bank
until the check clears.
Dr. Bill Kanasky
Yeah, that's a
really good point. Can you talk a little bit about what you refer to as
the cognitive map and how jurors really make decisions? Because I
really think this is misunderstood in the industry. I've had so many
attorneys, usually after conferences after I speak, or at the happy
hour, they'll tell me a bad story about a witness and say, you know, I
told them to think before they spoke. I told them to take their time. I
told them to keep their cool. I told them to stick with the plan and
they didn't do it and they become very frustrated. Can you kind of talk
about the cognitive map and neurocognitively, what's going on in the
juror brain that trial attorneys need to understand?
Dr. George Speckart
Sure.
At Courtroom Sciences, we've developed this theory essentially, which
has held up remarkably well over the decades, and that is jurors start
off, they come into the courtroom, they're a completely blank slate.
They're highly sensitized and the first thing they do is they look at
the litigants, not the lawyers, but the litigants. Who are these guys
and they kind of sniff them like dogs and come up with primitive
assessments of likability, honesty, trustworthiness, that sort of thing.
Most of that is done non-verbally. In other words, on the basis of
nonverbal behavior; mannerisms, eye contact, facial expressions, vocal
intonation, body language, all of that kind of stuff. And that first
assessment, who are these guys? What are they like? You know, can I
trust them? Do I believe in these people? That's the very first thing
that happens. And the second thing that happens is with the same
litigants they ask, now what are their duties and responsibilities?
Dr. George Speckart
What
is it they should have done that they failed to do, or what is it that
they did that they should not have done? And if you watch a trial,
especially cross examination, you'll see that it's a constant attempt by
plaintiff to foist more and more duties and responsibilities onto the
opposing side. And those two questions. Who are these guys? What are
their duties and responsibilities? Tilt the entire playing field for the
rest of the case to create a filter or a lens through which all the
remaining evidence, issues, themes, data are construed in order to come
up with a final verdict and damages decision.
Dr. Bill Kanasky
Let's
talk a little bit about that lens. Because what I've seen a lot
recently, and I really am dying to hear your comments on this, is a lot
of plaintiff's attorneys have figured that out. And they're now
videotaping most of these depositions. Can you talk a little bit about
how if a plaintiff attorney deposes a defense witness, makes them look
terrible on videotape, and then they're able to play that videotape in
opening statement or instead of calling the witness adversely, they can
just hit play on that videotape. How does that affect the lens of the
juror if it's not coming across the right way?
Dr. George Speckart
Well,
that's the classic train wreck scenario that you just described and the
very reason why we say when people call us up and ask for help for the
deposition, they know what they're doing. I worked on a case in
Beaumont, Texas. It was FC versus Burlington Northern. This is 1989 and I
don't know how this happened, but the plaintiff had these atrocious
videotapes of these railroad barons. These are the old-fashioned
railroad executives who just very contemptuous of the whole litigation
process. They thought they were above it. They thought it was just all a
nuisance and all of that got communicated in their demeanor and all of
this stuff was played at the very beginning of the trial. And defense
never could recover from that. The jury awarded $334 million with treble
damages, which was $1.02 billion. That's a nuclear verdict. And that's
1989 and it was all about the witnesses. And I just can't stress enough,
we've got to get to the witnesses before the depositions or else
there's really not much you can do.
Dr. Bill Kanasky
Please
tell a story about when you did your back to back mock trials and on
day one you, you played the video clips. And on day two you read in the
testimony. Cause I find the story fascinating and how the damages
changed from day one to day two.
Dr. George Speckart
Yeah.
You know, sometimes you stumble on these little incidents that you keep
forever because they're just so incredible. And you know, there's so
much to learn for everybody else who hasn't heard of these things. I
think we have to back up all the way to research from the 70’s that
shows that 60 to 90% of the impact of a message is actually nonverbal.
Most people, they get that nonverbal behavior is important, but they
don't realize how enormously important it is. So, we were doing a bad
faith case. It was in Las Vegas and the claims adjusters who were on
video were just awful. They were again, you know, belligerent,
contemptuous, pugnacious, all of the things you don't want in a witness.
And the mock jurors awarded $190 million. And so, they all huddled
afterward and said, oh my God, we've got a train wreck coming. What are
we going to do?
Dr. George Speckart
And someone came
up with the brilliant idea, Hey, these guys are outside of subpoena
range. We can just read Q & A into the record and they'll never have
to see these witnesses. In other words, the depositions are already in
the can, what are we going to do? But I think they figured if they could
read Q & A into the record, they could prevent the depositions from
being shown, apparently. So, we recruited another panel exactly like
the first one. Same arguments, same evidence, same information, same
everything. Except this time, the testimony was all Q & A, read into
the record. In other words, they subtract out all of the nonverbal
behavior of these horrible pugnacious claims adjusters. Then the jury
deliberated and this time they awarded $2 million, which means 188 out
of the $190 million that was awarded in the first go round is all
attributable to the nonverbal behavior of those claims adjusters. It's
amazing. That's a lot more than 90%. I mean, that's just about
everything.
Dr. Bill Kanasky
That's really incredible.
And I think that, yeah, I think the value of the videotaped
deposition….I think the defense bar's finally figured it out, but I'm
still getting even, you know, today in 2020 probably three out of the 10
calls I get, the deps are already in the can and it does lead to you're
handcuffed to that freight train to hell like you were talking about,
which is totally preventable. Unfortunately, I think some, whether it be
some attorneys or some clients, they have this aversion to being
aggressive early in a case. Can you tell me maybe a little bit about
some of the clients that you've worked with that have been aggressive
early in a case and what the value is of the good deposition? I mean,
when you have a good solid, effective deposition on videotape, now the
tables have really turned haven’t they?
Dr. George Speckart
Yeah,
I had, just to represent the other extreme, I had a client who really
knew what he was doing. He brought his deponent in and they did a mock
deposition with jurors watching, which is incredible. I mean, that's
just something you don't see very much. But we brought in jurors and
they did the Q & A of the deposition, and then they got feedback
from the jurors on what they thought of this deponent while he was being
deposed so that he could get feedback and through videotape in the
focus session afterward about do's and don'ts, how he could improve in
his own nonverbal behavior. And of course, he did a great job because
when jurors tell you what they think of you, you don't forget that. You
had talked earlier about, you know, what are you gonna do about a
witness who you tell him this, you tell him that, and then they just go
and do whatever they were going to do anyway. You have to have some
impact. And one of the ways to do that is to get them watching jurors
talking about their own performance. That's a real ego buster. And then
of course, you're the guy who wrote about the neurocognitive
reprogramming that has to occur.
Dr. Bill Kanasky
Well,
yeah. cause if that doesn't occur and the purpose of this podcast and
part two with you is really to address the issue of nuclear verdicts.
And I think it's incredible how when jurors really dislike witnesses how
the damages can really get out of control. And you and I have a paper
coming out, which by the time this'll be broadcast will probably be out
in DRI’s For the Defense discussing this issue.
Dr. Bill Kanasky
I
think that the Reptile theory tactics have really upped the stakes here
in witness testimony. Cause these are very manipulative tactics that
essentially get witnesses to look very, very bad, to agree with things
they should never be agreeing to. Can you maybe talk a little bit about
how the Reptile tactics have influenced the nuclear verdicts when it
comes to witness performance?
Dr. George Speckart
Well,
you know, the Reptile approach started by Ball & Keenan, what about
10 years ago now, in 2009….yeah, it's really well done, ingenious
strategy that has required a lot of effort by informed defense trial
teams to overcome and, and undo, let's say. And you know, people talk
about these nuclear verdicts all the time, but the Reptile approach has
emerged pretty much in parallel with the emergence of, with the
appearance of this nuclear verdict phenomenon. And you know, I doubt
that it's really a coincidence that those two things are occurring at
the same time. And so, this is really a battle over witness performance.
And I think that a lot of defense trial teams would do well to take
this very seriously because a good portion of all these nuclear verdicts
occur with these witnessed performance meltdowns and particularly these
bad depositions that are putting these defense trial teams behind the
eight ball to start with. And there are ways to overcome and undo this,
but you know, it takes, you gotta roll up your sleeves and get to work. I
mean, it doesn't just happen with clever concept training. A witness is
kind of like, you know, teaching a five-year-old to ride a bike. You
know, they're going to fall down a couple of times and they gotta be
helped back up and try and do it again.
Dr. Bill Kanasky
And
something I want to make clear cause, and I'm sure you've heard this in
your career, typically from defense counsel or from a client, you know,
I prepare my own witnesses, I know what I'm doing. And I'm not taking
anything away from the trial attorney's efforts to prepare a witness on
the facts, on the documents, on the strategy. But what we're doing, and
correct me if I'm wrong, we're not competing with the attorney. We're
teaching neurocognitive neurobehavioral neuroemotional skills to offset
these Reptile attacks. Can you talk about maybe some of your experiences
- and this happens to me on a weekly basis - where I walk into a
witness training session and within the first hour, the attorney's
telling me, ‘well, I tell the witness everything that you tell them,
blah, blah, blah, blah, blah’. And then by the end of the day they're
walking out of the room like, ‘Wow, I can't believe what you just did’.
Can you just talk a little bit about what we do versus attorneys, and
how it complements, and that we're not competing with trial counsel.
Dr. George Speckart
Yeah.
And you know, what I also hear is the witnesses telling me, ‘gosh, I
wish I'd had this knowledge earlier when I took that other deposition’
and I can't over emphasize how often this occurs. It seems as though
when people kind of look at us from the outside, they think, you know,
we don't need that. You know, I could do that. But once they see what we
do, they go, ‘boy, I wish I had done this earlier’. But I think part of
the reason for this is that we make the witnesses job easier. And when
that happens, everybody's job gets easier. And then people just go, ‘Oh
my gosh, I wish we had done this before’. Because what we do is help
them navigate through this jungle of pomp and garbage, that's being
thrown at them so that they can separate what's clever and what's
correct and stay on the beam. And once they have the simple set of rules
that we give them, it just makes everybody's life easier.
Dr. Bill Kanasky
I
totally agree. And what I tell witnesses within the first hour, and I
tell the trial counsel, and I can prove this, you can prove this
especially after analyzing thousands of depositions, is that there's
four ways to screw this up, George. Cognitively, meaning the witness
does not listen or think effectively, therefore, they make errors in
their testimony. And in this particular society, people are terrible; I
don’t care how smart somebody is, we are terrible listeners and we're
terrible thinkers because of how fast society goes and they have to be
literally taught. It's a skill. Listening is a skill. It's not a piece
of advice. It's not a pointer. It's a skill. Thinking is a skill and
they have to be taught that number one, so that's the first way to screw
up. The second way to screw it up is behaviorally, if you're not
behaving in the right way as far as appearing professional, appearing
confident, appearing calm, and the jury sees that particularly on a
videotape or even live, it's going to torpedo the case.
Dr. Bill Kanasky
Third
way to screw it up is emotionally. If the witness has, and we've refer
to it as an amygdala hijack; that amygdala activates the subcortical
part of the brain and the witness goes fight or flight. They're going to
say really, really harmful things, which is not going to be good for
the case and they're not going to think clearly. And the fourth - and
this is where witness preparation, not training - typically starts is
strategy. They’ve got to stick to the themes of the case; the witness
has to stick to the game plan. And so, I tell the attorneys and the
witness, I’m like the only way to stick with the strategy is to be
prepared cognitively, behaviorally, and emotionally. Because if you
don't cover those three psychological areas, it's literally impossible
to stick with the strategy. Correct?
Dr. George Speckart
Yeah. I mean that's the whole ballgame right there. I really don't have much to add to that because I think you nailed it.
Dr. Bill Kanasky
It's
funny cause I showed up to this trial prep last week and I had read the
transcript on the airplane and when I met with the witness, I said,
‘okay, well here's the question. Here's your terrible answer’. And I
said, ‘why did you say that?’ Here's the question, here's your answer,
which was completely off track. I go, ‘why in the world did you give
that answer?’ And this witness looks back at me and he goes, ‘I have no
idea. I have no idea why I said that’. And my response was, ‘no, I know
why you said it. You did not hear that question completely. You did not
properly think about that question. You never processed that question
fully. And you were emotional at the time and you went off the rails’.
And he looked at me and he was like, ‘you know what? I think you're
right’. And I'm like, yeah, I am right. So that's a good example of how
it's really the psychology behind this that's impacting the witness's
ability to really perform effectively.
Dr. George Speckart
People
bring in their habitual communication patterns, their normal ways of
communicating and talking. They try to import that into the courtroom
and it doesn't work.
Dr. Bill Kanasky
Or deposition. I
call it the workplace brain. So think about it, for 40 to 80 hours a
week, you are processing information and communicating information a
certain way, and then you bring that into a litigation atmosphere and it
literally crashes and burns because the opposing attorney knows you're
going to do that and they just eat these witnesses alive.
Dr. George Speckart
Yeah.
And I think we have a society where people really have lost the art of
listening. They're thinking, they're multitasking and yes, that's
efficient, but it really hurts you in the courtroom.
Dr. Bill Kanasky
And
you're absolutely right, and it's a skill. It's a skill and you're
right, we're in this multitasking society and if the witness cognitively
multitasks this, it's just impossible to perform well.
Dr. George Speckart
I've
heard some people in this industry say that getting the witness to
actually answer the question that was asked is 90% of witness training
because that involves hearing every word of the question.
Dr. Bill Kanasky
And
so many people fail to do that. I'd like to talk about different types
of witnesses that you've seen over your career; that I've seen over my
career. I think it's pretty easy to categorize these witnesses. And I'd
like to talk about kind of who these people are and how we adjust our
training system to meet these people's needs. And I think the first type
of witness we need to talk about is what I call the Mr. or Mrs. Know It
All Witness. These are typically witnesses that are executives. They're
managers, they're highly successful in their careers; physicians,
perhaps engineers, people that have a high level of intellect and are
very skilled in their jobs and they come into litigation, and I think a
lot of them don't take testimony seriously and they think they have it
figured out. Do you want to maybe talk about your experience with those
witnesses?
Dr. George Speckart
I can call that CEO
syndrome. But it also occurs with experts and engineers. They pretty
much think that this is simple and that they understand it already and
they don't. I'm not sure what's behind that except its part of their way
of adapting to the world or their way of functioning. And it's one of
those things that's adaptive and helpful in the workplace, but it
doesn't serve you very well in the courtroom. Engineers for example,
they can be hyper analytical. They think if they just dissect the
question and analyze it that, that everything will be okay. And what
that does is just create more response latency so that they look like
they're being evasive. I had one engineer once who he was asked in his
deposition, so did you work at this company from 1999 to 2003?
Dr. George Speckart
And
he says, what do you mean by work? You know, just has to analyze
everything. And then the other thing that the CEO syndrome, what that
really means to me in the functional environment of witness training is
that the person's not teachable. You know, they're just not, they're
kind of impervious and they don't absorb what you're telling them. And
sometimes we have to go to what I call industrial strength witness
training, getting him in front of jurors and letting the jurors tell
them, ‘Hey man, you know, you look like you're hiding the ball. You
know, you look like you don't care. You look like you think you know
everything’ and they don't forget it when jurors tell him.
Dr. Bill Kanasky
Yeah,
well the one thing I do with those types of witnesses, particularly in a
reptile case, is I break these witnesses down; meaning I force them
into failure. And so, a lot of these witnesses that come in, they're
looking at their watch, they're on their phones and they don't think
they really need to be there. They'd rather be doing something else. I
say, how about I ask you five minutes of questions and you just do your
best? And they're like, okay. And in seven minutes I have them admitting
liability. I have them falling on the sword or, in the opposite, I have
them looking very uncomfortable, being argumentative, being evasive.
And then I call time out and I'm like, Hey, you just lost the case. And I
think when they do that during a witness training session, I think
that's the big wake up call.
Dr. Bill Kanasky
And
that's when that CEO syndrome tends to disappear cause they have figured
out, wait a second, this is a different environment. I am actually
highly vulnerable. I better pay attention here. And I see that light
bulb go off. Even with brain surgeons, cardiac surgeons, CEOs, I've seen
a lot of very smart, successful people essentially have that kind of Oh
shit moment. They go, oh boy, I am a big, big trouble. And at that very
point, in other words, once you force that type of witness to fail,
they tend to wake up pretty quickly and they take a lot of notes. And
they want to succeed. And so I think you can turn that energy around and
now they can put all that effort that they put into their jobs, they
can put it into the witness preparation and come out really well on the
other side.
Dr. George Speckart
Yeah. Once they sniff the odor of failure, they completely change because they don't like that. They're not used to that.
Dr. Bill Kanasky
Absolutely.
Another type of witness; let's go to the opposite extreme. Let's just
call these folks, unsophisticated perhaps. Blue collar workers, truck
drivers, maybe the low-level nurse. These are not PhDs or MDs or CEOs.
These are kind of your normal, average, basic people. Guys in the
trenches, right? Maybe of average intelligence or even lower
intelligence. I find that they come in the opposite. They come in scared
to death. They have no idea what's going on. They're not familiar with
litigation. And what I do with those; I don't think you treat that
witness the same as you treat the more advanced intellect witness. I
think you have to take baby steps. You know, it's my experience that a
lot of these people in the trenches, the blue-collar folks, the drivers
they come in. Can you talk about how witnesses don't necessarily trust
attorneys, particularly the blue-collar folks?
Dr. George Speckart
Yeah.
You know, I mean this is all new to them and they're scared. And
there's a lot of emotional baggage here. And that's one of the reasons
why I think it's so important to have a psychologist train your
witnesses, because sometimes you have to do therapy before you can even
get started with actual witness training, per se. And to get all those
emotions out on the table, you know, the distrust, the apprehension, all
the fear and deal with that upfront is something that an unassisted
trial teams don't normally do that well. But having a psychologist
present can really make a lot of difference. And once you clear the air
and get that stuff worked out, not only does a witness feel better, but
they're grateful for it and they trust you more. They trust everything
more and they become more teachable.
Dr. Bill Kanasky
They
are actually more teachable in many ways. I find a lot of those folks
come in worried that if they don't testify the right way, they're going
to lose their jobs. A lot of irrational thoughts. But those people they
just need some more hand holding upfront. And, but again, like you said,
can be very teachable if you create the right environment. Another type
of witness that we see, this is very common, I will call these people
the emotional witnesses. They come in the door either screaming or
crying. It's one of the two. It's either they're really, really upset,
mad, or they're really, really upset, crying. Can you talk about the
role of emotion and how that impacts cognition and how a lot of these
sessions maybe for the first half a day, like you're literally doing
therapy as opposed to witness prep?
Dr. George Speckart
Yeah.
And the first thing that came to my mind was nurses in med mal cases.
And you know optimal cognitive functioning occurs at intermediate levels
of arousal. In other words, when you get to those higher levels of
arousal that characterize these emotional states you were talking about,
you know, screaming, crying or just being distraught or just very
fearful. At these highest levels of arousal, people don't think very
clearly, don't problem solve very well. Research shows they're better at
tasks that don't require very sophisticated cognitive functioning, like
laying bricks for example. So, you have to get some level of relaxation
and bring that arousal level down to an intermediate level where they
can function more efficiently. And when that happens, then of course
they do much better and feel much better. But that's part of the trust
process. Again, bringing them into a state of trust where they can relax
a little bit because you know, as well as I do, in psychological
literature that trust and credibility and likability, all of those
things are associated with relaxation, not these hyper levels of
activation and being jittery and nervousness and that sort of thing.
Dr. Bill Kanasky
Yeah.
Cause if the witness goes into the fight or flight response mode,
they're going to say harmful things. And you know, the fight mode would
be becoming argumentative, becoming defensive and trying to win the case
essentially, which is pretty much impossible. And then the flight mode
is either they give away the farm, they give up, they play dead or they
go into the, yeah but, yeah but, yeah but, let me explain. And
everything that comes out of their mouth turns out to be fuel for the
opposing attorney to take advantage of them. And so yeah, I think it's
very important to do a solid emotional assessment of the witness prior
to preparation. And that's just one of those issues.
Dr. George Speckart
One of the things that that happens with a lot of witnesses is that think that they're supposed to win the case.
Dr. Bill Kanasky
And
they're told that by some people. Yeah. And so, let's talk about this
kind of sidetrack and talk about this whole issue of pivoting. There are
two schools of thought out there: the right way and the wrong way. I
think we’re the right way which is to remember the objectives of the
testimony. Do not step on the landmine, right? And stick with the theme,
stick with the game plan. And there's a camp out there of people that
are literally today, and I speak about this all the time, you and I have
written about it, is the concept of pivoting. Meaning when an attorney
brings up a bad fat in a case, well, isn't it true, you know, at two
o'clock the patient's blood pressure was 200 over 100 isn't that true,
doctor? To teach a witness to say, yeah, but let me explain and to try
to win the deposition or even worse to try to win the case at trial.
I've seen a lot of negative feedback from jurors. Can you maybe talk
about how when a witness tries to win a case, kind of what the jury
perceives and how that's actually a huge turnoff to the jury because I
think they do appear very evasive in the sense.
Dr. George Speckart
Yeah.
And it makes them look like they're afraid. It makes them look like
they're interjecting excuses. It's the same thing that the jurors
associate with a child, you know, who just broke a vase or something.
And if he just says, yeah, I did it, you know, he's going to be much
more respected than if he starts, you know, pointing the finger at
somebody else or bringing in all these kind of irrelevant circumstances
that just sound like excuses. You know, we try to do two things when we
train witnesses. One of them is we establish these, what we call buoys
that define a safe harbor. These buoys are thematic, linchpin,
cornerstone themes that define the border of their testimony so that
when they're being pulled outside of the safe harbor, they can see one
of those buoys going by and saying, you know, I ain't going out here.
This is where I draw the line.
Dr. George Speckart
You
know, and I think that's really important. But the other thing is for
them to just keep their eye on the ball and understand that they are
nothing other than a clear window to the truth. They've been instructed
by the court that what the attorneys say is not evidence, but what the
witnesses say IS evidence. So, there's two completely different
standards that the jury holds. Attorneys get to be histrionic,
theatrical; they get to go over the top and jurors don't mind that. They
understand that a witness does not have that luxury. He doesn't have
the luxury of cracking wise, being sarcastic, getting argumentative. In
fact, I tell witnesses, don't ever get into an argument with a lawyer;
that's like getting into a swimming contest with an otter. You're just
not equipped to out argue the lawyer and all you have to do is be a
clear window to the truth. You state the facts as you know them and let
them be and your counsel will come back on redirect and clean up what
needs to be cleaned up. But don't you try to do it.
Dr. Bill Kanasky
Yeah.
Cause I think the pivoting thing just leads to a lot of trouble. So,
what we instruct witnesses to do, which is highly effective, embrace
your conduct. Embrace the facts. Do not defend. We have experts to
defend. We have trial attorneys to defend. When a witness starts to
defend, they look guilty. And so, when the witness is taught to embrace
their conduct, to embrace what the facts are, jurors don't get mad, do
they?
Dr. George Speckart
No. And you know, one of the
things I tell witnesses all the time is, remember jurors want to go
home, they only want to do two things, please the judge and go home. You
know, they don't care about all of your excuses and they don't want to
hear them really. I mean, they just want what they need to problem solve
the case, give the verdict, adjust verdict according to the judge's
instructions and go home. So that means don't be adding on all this
stuff because jurors don't want to hear it and just give the facts and
let the lawyers win the case for you.
Dr. Bill Kanasky
Keep
it simple. And then the last type of witness, and these are dangerous
George, and I know you have a lot of experience with this; is the
apathetic witness that doesn't want to be there. I think a lot of these
tend to be former employees or maybe some they're disgruntled, and they
come in and they have to testify about a case and about conduct and
they've been terminated a lot of the times. Can you kind of talk about
how you treat that witness? Cause I think that can be an atomic bomb if
you don't treat that person in the right way.
Dr. George Speckart
Those
are the witnesses that scare me. Because sometimes much of the time
they're not being forthcoming with you. Sometimes they're lying and when
a witness is lying to the trial team, that’s the ultimate train wreck
because it comes out at trial when you don't want it to. And when it
comes out in front of the jury like that, you know, that's, that's a
formula for a nuclear verdict.
Dr. Bill Kanasky
Yeah. And a lot of finger pointing too.
Dr. George Speckart
Sometimes
I have to take those people and just go have coffee with them and try
to get them to just open up and see that they're better off just letting
go of their fears and just being factual and straight with everybody.
That's not always successful. Sometimes there's just nothing you could
do with those people.
Dr. Bill Kanasky
Yeah, particularly if they're in a get even mindset, they want to get even, that's not a good thing.
Dr. George Speckart
Yeah.
Those are situations that have to be dealt with on an individual case
by case basis; sit down and have a come to Jesus meeting with the trial
team and just kind of decide the best way to handle it.
Dr. Bill Kanasky
Yeah,
I think you're right. It's a definitely a case by case basis. I think
those are pretty much the categories of witnesses that I see. I think
maybe a fifth category which is has grown over time and it will continue
to grow in this diverse society is a lot of witnesses I work with,
particularly in the healthcare industry, are foreign born. And so,
there's this cultural divide, this cultural barrier in which these
people were born and maybe even trained to an extent in a different
country and then they're over here in our legal system. Can you talk
about some of your experiences with the foreign-born witness and how you
have to treat them a lot differently because of their cultural
upbringing, which is not in the United States?
Dr. George Speckart
Well,
you know, a lot of these people are not familiar with the litigation
process and it all seems very strange to them and they can't understand
why they have to go through all this stuff, when they haven't done
anything wrong. And so, it just takes more time to explain everything.
And of course, it's absolutely critical to have a good interpreter that
everybody trusts. Yeah.
Dr. Bill Kanasky
Because I
think there's a lot of fear. I think there's a lot of fear because, I
mean we're one of the very few countries on this plan that even have a
jury system. So, the whole concept of being in front of a jury is really
foreign to these people. And I think, like you said, it's a lot of
handholding and education up front. They have to understand the system
because if they don't understand the system, boom, you know, amygdala
hijack. And I find that those witnesses tend to go into fight or flight a
lot quicker than your average person.
Dr. George Speckart
Yeah.
You know, it has to be explained to them. Look, this is Alice in
Wonderland. You know, we are going into an upside down world where
things aren't what they seem to be and there are just certain rules of
the game that need to be learned in order to navigate your way through
the situation. It's not too difficult, but you know, it's just something
that we have to sit down and work out together and eventually you get
there. Just takes a little more time.
Dr. Bill Kanasky
Well,
we have a couple of minutes left. George, why don't we end by just
talking about what defense counsel and clients can do. I think we've
implied this all day, but let's say it again. I think you need to out
prepare.
Dr. George Speckart
You win by out preparing the other side.
Dr. Bill Kanasky
And
that's going to take time. It's going to take time and money. And what
annoys me is when I have a case where demand is $50 million, and they
don't want to spend 20 grand to train their witnesses. To me that's
absurd.
Dr. George Speckart
Yeah. I mean this is by a
country mile the most cost-effective thing that we do. And when I go and
talk to people about doing this and there's resistance, sometimes I
suspect it's not even really the money. But you know, people have
sometimes they have resistance to bringing in a psychologist because
they just think they can do it themselves. There's something about being
a psychologist where kind of everybody thinks that they're a
psychologist and you know, they can figure this stuff out. And it's just
not the case. It's kind of an elusive situation. It's not what it
appears to be. It's much more effective, much more penetrating, much
more impactful than people realize until they do it. Once they do it,
they see, wow, you know, I should've done this earlier.
Dr. Bill Kanasky
I
agree. Well George, thank you so much, Dr. George Speckart. Thank you
so much for being on the podcast and we're going to have you back soon. I
think our next topic is going to be another nuclear verdict podcast.
This one talking about the ins and outs of jury selection, both the
state and federal courts. So, we'll have you back for that really soon.
Dr. George Speckart
All right, thanks Bill. Thanks. Take care.
Dr. Bill Kanasky
Well,
there you have it. Episode three is complete on nuclear verdicts,
episode four, which is coming up, interview with Bob Tyson, author of
the new nuclear verdict book. And that is going to be phenomenal. So
that's going to be a must listen to podcast. This is Dr. Bill Kanasky
with Courtroom Sciences. We will see you next time.