The Litigation Psychology Podcast - Episode 3

Nuclear Verdicts - part III

CSI - Courtroom Sciences Inc

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.