DRI Comp Conversations: Episode 22

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Welcome back to another episode of the comp Conversations podcast,
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a podcast developed through DRI where we explore the world
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at workers' compensation, including the personal aspects involved in the
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realm of work entries and its litigation, as well as
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future trends in every aspect in between. My name is
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Steve Armstrong and I'm here today with Jennifer White. We
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are delighted to have on today's podcast and live event
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litigator Chris Turney. There are three guiding principles that drive Chris.
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As his civil defense attorney, he is based in Kansas City.
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In addition to defending products made by innovative companies and
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critical decisions made by professionals in an imperfect world, Chris
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invests his professional time as a national director of DRI.
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Over the past four years, Chris has been a leader
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of DRI's Social Inflation Task Force. Task force comprised of
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industry experts and insurance litigation and public policy that is
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designed to identify and pushback on tactics employed to increase
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the costs of resolving lawsuits. As part of that, he
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has presented to INSURE US in State Defense Associations more
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than twenty times about strategic tools to combat the plaintiff's bars,
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increasing sophistication and its attacks on our industry. We are
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delighted to day to have Chris here to help us
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learn more about witness preparation. Thank you, Chris.
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Well, sound you very much. And everyone who has heard
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me talked before or who knows me, knows that there's
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a zero percent chance I'm getting you at that spot.
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I really do want to try, because I think when
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we as the Defense Bar talk and collaborate with each other,
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great things happen. So let's talk briefly. I know that
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the one of the big pushes on this was the
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AI effect on witness preparation, and I do want to
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talk briefly about the AI effect on witness preparation more
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from our opponent's angle, because I'll be honest, they're a
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light years ahead of us and we don't even know it.
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That's one of the big risks that we have as
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the Defense Bar, and so I do want to talk
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to some degree about the AI effect and what it
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means for us. But I want to get back to
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the basics as well. And when Steve and Jennifer and
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I were talking through this presentation on witness preparation, one
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thing that emerged all three of us is we've got
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to remember that we're dealing with people. And so with
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that said, let's talk briefly about this AI effect. And
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this is something brand new to my firm. This particular thing.
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I'm going to go through the plants lawyers have stalked arsenals. Y'all,
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there's a particular AI software that I just subscribe to
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ten cases worth. It was a good chunk of money,
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but I wanted to see what it is they're using.
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This is a prompt that I ran for. There's about
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sixteen thousand pages of medical records in this case. Okay,
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this is a case where a lady was bumped by
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a commercial vehicle. Now that's not really true. My commercial
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vehicle ran into somebody who then bumped the car in
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front of him. She literally had a bump, a dent
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in the rear tailgate. Of course, she had post concussion
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syndrome according to her traumatic brain injury. This host of issues,
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including PTSD. Out of sixteen thousand pages of medical records.
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At eleven thirty eight this morning, I asked this particular
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AI software, where are the defindants strongest arguments that the
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planet does not have PTSD. Within a minute, it pointed
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ten medical records that showed clear gaps in the diagnosis.
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Great for me. Now we flip it, though, what are
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the strongest arguments in favor of her having PTSD? Twelve
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arguments from the records. Now, I wanted to post that.
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I wanted to kind of clip that and put it
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up here, but I didn't want to violate any kind
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of terms of the agreement that I had with the
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company sharing its data. But the point being, y'all, when
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we have thousands of pages of medical records, our plaintiff
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lawyers on the other side of these cases, within a
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matter of minutes know their most direct path to causation,
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their most direct path to the mechanism of event, in
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other words, what happened, and their most direct path to
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the mechanism of injury the MOE and MOI. Those are
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two very important things for our plaintiff lawyer counterparts. So
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this is just the backdrop. These are the facts of
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the case, and these are the arguments that the plantiff's
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going to make. So we do need to learn how
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to use these tools. We need to invest as law firms,
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our clients need to invest in us to invest in
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these products to help us cut through to the strongest
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and weakest causation parts of our case. So definitely use
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the tools. But the rest of the focus of this
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presentation is going to be don't forget the human. We
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do not get to have an AI chat bot answer
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questions under cross examination. We just don't. We probably don't
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want that, frankly, because you know, well playflowers are going
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to control the AI output anyway. But we've got to
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remember the human. And so when we were talking Steve,
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Jennifer and I, we wanted to focus the rest of
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this time on the human. And what I shared with
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them is the traditional methodology that I use in my
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civil case is when I'm preparing a corporate rep or
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an employee witness for a deposition. Because there's a lot
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of psychology that we need to be using, and I
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believe most of this is going to attract to the
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workers comp world. Now, a lot of the issues I
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recognize our going to be different. I'm battling liability all
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the time, almost all the time, and I know that
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that's often not a battle in the workers area. But
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causation is still key. Causation is often still key there.
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So here's the big picture. This is the swath and
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when I'm first meeting with the witness of mine, this
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is the outline I give them in the first meeting
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that we have, and I tell them, depending on the
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size of the case, the exposure of the case, we
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may be talking about five prep sessions on rare occasion,
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it's more than that rare occasion, it's less, but session one.
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I always start off talking about this issue of the
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social inflation is why does it matter? But from the
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witness's perspective, where do you fit in? Because our witnesses
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do you contribute to the extreme verdicts that sometimes occur?
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We talk about the difference between deposition and trials and
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deposition psychology most importantly, and one thing that we want
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to talk about heavily today witness prep is making sure
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the witness knows where they have control. Our witnesses have
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way more control than we think. Our witnesses have way
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more control than they think. And when we as lawyers
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help them to understand where they have control, we get
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them eighty percent of the way to that cross. Now
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what the last what the other side is going to
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ask and we're going to talk about some games that
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they play the other side, and then obviously in the
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first session we do a little quiz at the end
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of it with the witness to make sure that they're
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grasping these things. Session two then is where we go
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through the refresher of this background. And then session two
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is then where we start getting into the key documents,
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medical records, these standards, what standards apply to your industry
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and why. That's also then where we articulate what we
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think these trap questions are going to be. Then we
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do live fire and regroup, and then you see the
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last three sessions. That's the muscle memory, live fire, regroup,
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live fire regroup, and one more time right because where
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we develop the muscle memory makes them more comfortable in
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the deposition. So this is the big picture, and these
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are some of the things that I might walk through
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here with us today to the extent we have time.
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So first off, I'm going to go briefly through the
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social inflation issue. This is like a two to three
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hour presentation. But what is social inflation. It's the increase
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in litigation costs and expenses to settle compared to this
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background inflation. So the bottom line here ten and a
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half percent. Between twenty seventeen and twenty one, A price
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of milk went up, price of gas went up some years,
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price of eggs we remember went up. Of course during COVID,
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price of toilet paper went through the roof, But roughly
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eleven percent increase in the background inflation, whereas over that
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four year period the cost of resolving general liability claims
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increase fifty seven point four percent. So from a data
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point perspective, forty seven percent increase is what the numerical
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social inflation is now. As part of the as the charter,
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I guess Chair of the Social Inflation Task Force. Through
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DRI over the last four years, we've developed the contributors
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and drivers what is causing these costs to go up? Okay,
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and this is the grid that we developed. Direct behaviors
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and indirect behaviors. Direct is in the litigation. Indirect our
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behaviors outside of the litigation. Intentional behaviors are things that
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lawyers are doing on purpose to drive up the costs.
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Unintentional behaviors are things that we're doing without intending to
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drive up the cost These are literally things I go
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through with my client because I want my client to
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understand why they matter. Now, I don't go through every
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one of these quadrants with them because they don't necessarily
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impact whether or not the plant for lawyer is going
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to anchor the the images, or whether they're going to
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use lean based treaters, et cetera. The quadrant where the
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witness matters is that unintentional, meaning the behaviors that they
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do that they don't intend to do to inflate the
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verdicts or the settlement, and it's done in the litigation
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so indirect. In the direct column there, it's witness crumbling
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when the witness does not prepare well enough, when the
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lawyer doesn't do a good enough job of preparing the witness.
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You see, out of all of these things that create
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this social inflation, witness crumbling is one of the key things. Now,
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why do I show them all of these other quadrants
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if all they really impact is that bottom left? Because
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I don't want them to feel like the entire weight
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of the world is on their shoulder. I want them
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to know they play a role, and it's important for
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them to take their role seriously. But I also want
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them to know that there's other things that are going
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on outside of them, so they don't bear the entire weight.
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So what happens when a witness crumbles. We've heard of
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the nuclear verdicts, et cetera. I'm not going to go
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too deep into those, but one thing we know is
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the research that's been done on the nuclear verdicts is
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that there are almost always some subtle and influencing factors.
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What are these factors? The big lie? Okay, when a
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corporation messes up and covers it up, or when a
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corporation makes a decision and then they lie about it later.
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Those are things that are inflators to these verdicts and
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the increase in settlements. Perceived hypocrisy, for example, when our
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employers treat their employees in such a way that they
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don't treat the executives. Maybe safety is more important to
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the executives in the c suite than it is to
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the employees on the line. Right, this perceived hypocrisy matters
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and the jury pool and the civil cases that I
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handle often it's a little bit different where maybe my
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employee and my employers are treating their employees better from
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a safety perspective, ragging about safety left, right and center
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because it's so important. But when they put out a product,
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they don't test it, maybe as much as they ought to,
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So there's a perceived hypocrisy. The way they treat their
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employees is different than the way they treat the product users.
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So and then of course system failures. What systems are
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in place with the employer or with my corporate defendants
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that create this risk and the threat to the public
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as a whole. Okay, these are some things that go
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in that the planet lawyer wants to exploit from our witnesses.
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So we want the witnesses to understand that according to
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the plaintiff's council or in this case, the claimant's council,
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there's no such thing as a corporate error. It's always
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an intentional act and it's a big lie. It's always
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perceived hypocrisy in the eyes of our opponents, because that's
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what gets them the higher rewards. That's what gets them
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the bigger verdicts. Okay, So skipping through here, now I
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go through why do we want to prepare? And again
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I covered this with my witnesses because I want them
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to understand why I'm so obnoxious about requiring so much
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time from them to put their heart, mind and soul
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into this preparation, and this comes this model comes from
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a thing. Is the nineteen fifties nineteen sixties era Harvard
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Business Review article. I've kind of done my own little
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gloss to and I call it the competency grids. You
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can all see that. I'm a diagrammatic visual tactile learner,
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side draw things all the time. This is the competence grid. Now,
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the cool thing about this is it applies to you
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and me. It applies to our associates, it applies to
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our paralegals and staff, It applies to our witnesses. Okay,
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so what is the competency grid. Anytime we're embarking on
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something new, we are in this top left quadrant called
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unconscious incompetence. It is what it sounds like. We don't
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know what we don't know. So when you first start
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working with a witness, the witness doesn't know what they
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don't know. All they know is they're gonna have to
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be deposed, They're gonna have to answer questions from a
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lawyer in a room. But they don't know anything else.
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They're unconsciously incompetent. They don't know what they don't know.
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At some point they move across to that next quadrant
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over and it's conscious incompetence again. Just like what it
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sounds like, they know that they don't know enough, and
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that's a miserable place to be. Okay. As lawyers, as
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type A type personalities, for the most part, we hate
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being anywhere above that horizontal line. We don't like knowing
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what we don't know, and we don't like not knowing
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what we don't know. Right now, when we go from
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conscious incompetence and then drop down to the bottom right
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hand quadrant, we then get to conscious competence, meaning okay,
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now we know that we're learning this, we get those
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little jolts of dopamine, like, okay, I'm picking this up.
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I kind of know. If you think back to your
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earlier days as a young lawyer doing depositions, you didn't
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know how to take a deposition. You didn't know what
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you even needed to know. At some point you went
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with someone to see a deposition get taken so you
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could kind of see the things that come up and
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figure out how you might handle those. And then you
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did a deposition or two, but you still weren't an expert.
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And today, I'm sure if any of y'all got noticed
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that there's a deposition tomorrow, you'd be like, yeah, I
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can cover it because you have gotten over to the
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unconscious competence grid. As you see, every day, we as
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lawyers are circling through this grid. Okay, we're circling through
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this conscious competency grid. We're learning how to learn. Our
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witnesses have to do that too, going into the deposition.
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Our witnesses is starting on the top left and throughout
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the process they're gonna hopefully get down to that bottom
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right or bottom left hand quadrant. Now here's the problem
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between conscious competence, well, between conscious incompetence and conscious competence.
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There's a pit. We've all been there. We have associates
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who are there right now. And one quick word about
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associate burnout, which I think most of y'all are experiencing
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just like I am. They burn out in this pit.
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They say, Gosh, there's a whole lot that I don't know,
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and I'm never going to learn this. I want out. Okay. Now,
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the thing about human learning is when we're in the pit,
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and when we learn our way out of the pit,
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we climb up this little rock wall again. I do
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my own graphics, so no one accuses me of copyright infringement.
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And they get to the top and they're like, oohoo,
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you know, I'm much smarter now. And then they get
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down to conscious competence and they're proud of what they've learned.
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They've done it, they understand it. We want our witnesses
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to do the same thing in prep. We want them
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to start off bumping their knees, scraping their elbows with us,
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and then we have to patiently say, now, what you
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just said was this, and this is what it comes
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across as and I don't think that that's the truth,
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the whole truth, and nothing but the truth. Right to
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be accurate, you have to go through this process more
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and more and more. Now back to the AI model.
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One problem that we're experiencing in our industry with how
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to leverage AI is when we're in the pit, sometimes
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we get stuck and we need the little helicopter to
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come rescue us from this pit. Now, when we get
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the helicopter rescue, the problem is we don't learn how
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to climb out of the pit. We never authentically get
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down to conscious competence and we never actually authentically learn
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how we learn, we don't grow. This is what we
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have to save ourselves from, saving our witnesses from. We
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have to do the reps. We have to get them
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out on the limbs so they can see weight. I
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kind of got myself trapped here. We don't want to
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save them too early with the helicopter, right, and this helicopter,
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I couldn't resist the AI Express as the helicopter these days,
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and it's coming down to rescue everyone from having to
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learn stuff authentically. Right. So with this backdrop, I kind
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of go through all of this with the witness because
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I want them to understand why I'm picking on them. Okay,
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why am I hammering you so hard in the prep?
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It's all because I want them to go through that
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conscious incompetence grid. It's because they have a key role
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in this social inflation. All right. So another thing that
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I talk about early on and often as deposition psychology,
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And I'm going to give kudos to a friend of mine,
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Bill Kanaski. He is a witness prep consultant. He also
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runs focus groups and does jury research for lawyers. A
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doctor of neuropsychology. Brilliant dude. He's prepared witnesses across the country,
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and I hired him on a case where I had
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a particularly difficult witness, And a lot of these things
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that I'm talking about are things that he kind of
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hammers onto his witness when he's working with them. Now,
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going back to psychology one oh one, we remember that,
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you know, we always hear about the fight and flight response.
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You come up against a stressor. Some people are geared
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to fight, some people want to throw down, some people
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get mad, some people yell and throw stuff the flight
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some people just avoid it at all costs. Fight or flight.
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There's other or two other psychological reactions though. There's freeze,
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where we just lock down, we don't do anything because
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we don't know what to do, we don't know how
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to take the next step. And then there's fawn where
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we just don't make a decision. Our witnesses come into
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deposition prep and at least one of these categories, when
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you face them with some kind of attention, with some
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kind of a stressor, you're gonna be able to see
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are they a fighter, are they going to argue with
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me about everything, or are they just gonna go with
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what I'm saying without really understanding and absorbing it. Okay,
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that's a key thing that we need to know as
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we go into the deposition. More importantly, it's a key
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thing that the witness has to know about him or herself.
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In that first session, when we're meeting with the witness,
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we as lawyers need to put them in one of
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these boxes and say, Okay, this is going to be
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a fighter. I'm gonna have to get this dude to
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shut up. Or this is a person who's always going
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to agree with whatever's presented to her. We need to
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teach her how to fight right. Or maybe this guy's
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going to freeze and the stressors, we need to give
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him some tools to learn how to think his way
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out of this. These are tests that we as lawyers
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are going to have to run with the witness as
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we sit down with them. Because with every one of
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these natural responses that our witnesses are going to have,
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when I say natural, it's their inclination, they can fix them,
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and they fix them with strategic response. Then I get
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into with witness prep. There are six things that you
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have control over. The other side thinks they have all
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the control in the world. The good lawyers do take
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control of a witness. The good witnesses, don't let them
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do it. You have control over these six things. The
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speed of the deposition, the length of the explanations that
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you give, your own emotions, the strategy of our case,
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the agreements you make, and your mind. Okay, you have
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control over these six things. So how do we as
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lawyers help for our witnesses to understand this control that
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they have and to implement the control that they have.
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These are things Also again, my friend Bill Knaski, there's
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other jury consultants who teach a lot of the same things.
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I've learned all of this. None of this is I
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want to be very clear, none of this is the
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original Chris Turney thought. Don't think for a second that
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I think I'm some psychologist. I draw stuff. I draw
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stuff that I learned from other people. But these are
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all things by very smart people that I have incorporated
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into my day to day practice, and I'm happy to
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share with you. I want you to share with me
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what works for you, because that's how we as the
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defense bar get better. Okay, so let's go to the
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next step. Then, how do we control these strategic responses?
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How do we control the speed? You control the pace
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of your answer. When the lawyer asks you a question,
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you can take two or three seconds before you answer.
385
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It slows down the deposition. It brings some calm into
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the air. Have y'all ever had a witness that has
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answered a question before the stinking question is done? You
388
00:22:59.200 --> 00:23:03.920
know what they're not doing controlling the speed of the deposition? Okay,
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Bill can ASKI did an analysis on time stamped transcript.
390
00:23:08.440 --> 00:23:12.240
At one point, when the witness takes two to five
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seconds to answer every question, there's like thirty fewer questions
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asked in the deposition. This is real control, friends, These
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are real things that we can tell our clients about.
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So when I tell my client, as I say, take
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five seconds now, in reality it's two because that was
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five seconds and it felt really long. But if we
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tell them five seconds, they're going to come down in
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that two second range. Two to five seconds gives them
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00:23:46.720 --> 00:23:49.799
enough time to first let you object to, second know
400
00:23:49.920 --> 00:23:54.000
that they understand the question, and third to ask for
401
00:23:54.079 --> 00:23:58.359
clarification if there's anything in the question that is assumptive, unfair,
402
00:23:58.960 --> 00:24:03.559
or nonsensical. So I trained my witnesses first and foremost
403
00:24:03.599 --> 00:24:07.599
give them something tactile, put a stopwatch on them in
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00:24:07.599 --> 00:24:11.240
your prep and if they answer before two seconds is up,
405
00:24:11.440 --> 00:24:15.400
call him out on it. Okay, you gotta cut it out.
406
00:24:15.880 --> 00:24:19.920
You've got to slow down because remember the flight freeze fawn.
407
00:24:21.400 --> 00:24:23.519
Two to five seconds is enough time for them to
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think about Okay, am I a fighting? Am I fighting
409
00:24:25.839 --> 00:24:29.680
right now? Okay? Or am I just willing to agree
410
00:24:29.720 --> 00:24:32.359
with this question? So they ask the next one that's
411
00:24:32.359 --> 00:24:34.359
that period of time to control the speed. Now, how
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do we control the explanations? This is a fun one.
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Y'all might have seen Old School with Will Ferrell. It's
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been awful long time now. Somehow it seems like five
415
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years ago. I think it's been like over twenty. Y'all.
416
00:24:45.519 --> 00:24:48.079
Remember that scene where he's Frank the Tank. He goes
417
00:24:48.119 --> 00:24:51.000
back to the college campus and he's like guzzling these
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beer bongs and he's drinking through the crowd and all that.
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And I tell my witness, when you're asked to give
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00:24:57.880 --> 00:25:03.279
an explaination, explanation, give them a bottle, not a bucket. Okay,
421
00:25:03.319 --> 00:25:05.920
take a sip of your water bottle. Don't drown yourself
422
00:25:05.920 --> 00:25:09.400
in a five gallon bucket. Okay, bottles not buckets, So
423
00:25:09.519 --> 00:25:12.759
don't be Frank the tank. But instead be the world's
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00:25:12.759 --> 00:25:15.880
most interesting man. Remember the dudes like I don't often
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drink beer, but when I do, I drink dose ekis.
426
00:25:18.079 --> 00:25:22.599
You know, give them an analogy like that where they're understanding. Okay,
427
00:25:22.640 --> 00:25:26.880
if I'm talking way too much, I'm giving too much information,
428
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I'm frank the tank. I'm not the world's most interesting man. Right,
429
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So that's bottles, not buckets. One tool. By the way,
430
00:25:35.640 --> 00:25:39.200
Bill Kanaski gives this. I love it on the controlling
431
00:25:39.240 --> 00:25:43.440
the speed. He tells witnesses, I want you to drive
432
00:25:43.480 --> 00:25:49.799
a Jaundere tractor on the interstate. You're gonna have cars
433
00:25:49.839 --> 00:25:53.079
flying by you, honk in at you behind. I don't
434
00:25:53.279 --> 00:25:56.640
care you're driving a John Dear tractor on the interstate. Okay,
435
00:25:56.640 --> 00:25:58.960
that's another visual that we can give our witnesses, and
436
00:25:59.000 --> 00:26:02.960
I love that. All right, how do we control our agreements?
437
00:26:03.680 --> 00:26:05.839
Now you kind of tie into these other things that
438
00:26:05.880 --> 00:26:08.000
the witness has already learned. If you take the five seconds,
439
00:26:08.000 --> 00:26:11.279
you're gonna hear every word that's in the question. So
440
00:26:11.400 --> 00:26:15.240
when the question ends with a comma, don't you agree?
441
00:26:16.400 --> 00:26:18.839
You take time and you think about every single word
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00:26:18.839 --> 00:26:23.440
in that sentence, and don't you dare agree unless everything
443
00:26:23.599 --> 00:26:26.799
in that sentence is correct. Okay. At this phase, I
444
00:26:26.839 --> 00:26:30.200
tell the witness that they are actually creating a new
445
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truth in their deposition. If our witnesses say that something happens,
446
00:26:37.799 --> 00:26:41.160
if our witness agrees with one of these safety rules
447
00:26:41.160 --> 00:26:45.039
that the claimants or planet's council throws out, that becomes
448
00:26:45.079 --> 00:26:49.000
the new truth of the world of this case. That's
449
00:26:49.000 --> 00:26:51.920
what we can't have. So you do not agree unless
450
00:26:52.000 --> 00:26:56.440
everything is correct, and if you understand everything, you cannot
451
00:26:56.480 --> 00:26:59.000
be intimidated here. This is where we really need to
452
00:26:59.000 --> 00:27:03.279
pay attention to our flight based witnesses when they seek
453
00:27:03.400 --> 00:27:06.599
to just agree with something to avoid the conflict of confrontation.
454
00:27:06.960 --> 00:27:09.839
Those can be dangerous witnesses. Now, what do you think
455
00:27:09.839 --> 00:27:12.640
we have to prepare our fight witnesses for on this
456
00:27:14.200 --> 00:27:15.960
Just because the other side is saying it doesn't mean
457
00:27:15.960 --> 00:27:19.599
it's not true. You don't want to find them on everything.
458
00:27:20.240 --> 00:27:23.640
You don't want to pivot on everything. There are certain
459
00:27:23.720 --> 00:27:26.200
questions the other side are going to ask you, just
460
00:27:26.240 --> 00:27:27.759
to see what kind of a jerk you're going to
461
00:27:27.839 --> 00:27:31.599
sound like. Again, listen to every word. You may agree
462
00:27:31.680 --> 00:27:35.759
with what is being said. Then we go down to
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control over the mind and emotions. This is all about
464
00:27:38.319 --> 00:27:42.920
breathing exercise. This is all about your limits. And we
465
00:27:43.119 --> 00:27:47.000
like to take breaks every fifty minutes. You know, we
466
00:27:47.119 --> 00:27:50.680
have a general rule every hour. I go down to
467
00:27:50.759 --> 00:27:53.759
about fifty minutes because I want to take those breaks
468
00:27:53.759 --> 00:27:58.319
to give my witnesses brains some time to rest. How
469
00:27:58.400 --> 00:28:01.240
do we control the strategy? I get them focused on
470
00:28:01.400 --> 00:28:05.680
these facts in this case. A lot of the questions
471
00:28:05.680 --> 00:28:08.519
that are about this broad based. Don't you agree that
472
00:28:08.599 --> 00:28:13.440
all corporations should blank blank blank? Those are trap questions?
473
00:28:13.559 --> 00:28:16.000
So you've got to know these facts in this case,
474
00:28:16.519 --> 00:28:19.759
and your answer needs to be tied to these facts
475
00:28:20.920 --> 00:28:24.720
in this case. Right, So should all corporations do this
476
00:28:24.839 --> 00:28:28.319
or that? Well, I think with regard to this product
477
00:28:28.319 --> 00:28:30.200
that we designed a manufacturer, I think that was an
478
00:28:30.240 --> 00:28:34.680
important step. And here's why done right, As a general
479
00:28:34.759 --> 00:28:37.880
broad based rule, you're giving up the strategy when you
480
00:28:37.920 --> 00:28:41.559
go to bat on those questions. All right, what are
481
00:28:41.559 --> 00:28:44.200
they going to ask? These are things you always know.
482
00:28:44.599 --> 00:28:46.000
Every one of you knows. I'm not going to go
483
00:28:46.039 --> 00:28:48.559
through every one of these things. But again with my
484
00:28:48.680 --> 00:28:54.559
witness our witnesses don't know right, they're in unconscious incompetence.
485
00:28:54.960 --> 00:28:57.160
They don't know what's going to be asked, So this
486
00:28:57.279 --> 00:28:59.720
is an important slide to get them to slide over
487
00:28:59.759 --> 00:29:03.319
that continuum into conscious incompetence, so they know what they
488
00:29:03.359 --> 00:29:06.720
don't know. So easy questions, what did you review, who
489
00:29:06.799 --> 00:29:09.359
did you speak with? Let me tell you those are
490
00:29:09.359 --> 00:29:13.079
turning into hard questions today because in my world there's
491
00:29:13.119 --> 00:29:16.960
a lot of plaintiff lawyers who are trying cases by sanction.
492
00:29:18.519 --> 00:29:22.039
They're asking these easy questions corporate reps who are unprepared
493
00:29:22.079 --> 00:29:25.519
to answer them. And when the corporate rep is not
494
00:29:25.720 --> 00:29:29.960
able to articulate what records he or she reviewed, all
495
00:29:30.000 --> 00:29:31.759
of a sudden, the planoff lawyer makes it out to
496
00:29:31.799 --> 00:29:34.160
be what remember what we talked about earlier. That contributes
497
00:29:34.200 --> 00:29:38.440
to the big verdicts, the big lie, the big cover up.
498
00:29:38.920 --> 00:29:40.839
They're not even telling me what they reviewed before the
499
00:29:40.880 --> 00:29:44.160
deposition judge, and then they move for sanctions for an
500
00:29:44.279 --> 00:29:48.720
unprepared witness. So even these easy questions that we tend
501
00:29:48.799 --> 00:29:51.799
to skip over as lawyers because again we're already and
502
00:29:52.079 --> 00:29:56.240
unconscious competence. When our witnesses aren't caught up with us,
503
00:29:56.519 --> 00:30:00.039
we can accidentally abandon them with these easy questions and
504
00:30:00.839 --> 00:30:03.359
so we have to take our time to make sure
505
00:30:03.400 --> 00:30:06.519
that we can articulate. Here's some easy sounding questions, and
506
00:30:06.559 --> 00:30:10.559
here's the risks of them. There's always an argument about
507
00:30:10.599 --> 00:30:15.200
how much family background the opposing council gets to go into.
508
00:30:15.759 --> 00:30:19.000
And it's an argument, honestly that I've had with a
509
00:30:19.000 --> 00:30:21.519
couple of folks, because some folks shut it down from
510
00:30:21.519 --> 00:30:25.279
the beginning. You don't deserve to know who my client's
511
00:30:25.359 --> 00:30:28.720
family is. You don't deserve to know how old my
512
00:30:28.880 --> 00:30:31.440
client's daughter is, or where she goes into school, or
513
00:30:31.440 --> 00:30:36.000
what interest she has in sports, et cetera. I can
514
00:30:36.079 --> 00:30:41.079
totally understand that, but one trap that we can fall
515
00:30:41.119 --> 00:30:44.480
into as defense counsel is that means that we don't
516
00:30:44.480 --> 00:30:49.519
get to establish that background to trial. We're shutting down
517
00:30:49.559 --> 00:30:53.279
opposing council from asking these backgroundground questions about our witnesses.
518
00:30:53.960 --> 00:30:55.559
If I'm opposing counsel, I want to stand up a
519
00:30:55.599 --> 00:30:59.279
trial say, judge, this jury doesn't get to hear what
520
00:30:59.359 --> 00:31:03.880
community activities this witness participates in because I was not
521
00:31:03.960 --> 00:31:06.000
allowed to explore that in the deposition, and all of
522
00:31:06.039 --> 00:31:08.119
a sudden, you have like this corporate robot on the
523
00:31:08.119 --> 00:31:11.799
stand instead of a person instead of the human. So
524
00:31:11.920 --> 00:31:16.160
these are easy things on paper, but when we as
525
00:31:16.200 --> 00:31:20.240
lawyers really work on the preparation, we can really understand
526
00:31:20.240 --> 00:31:24.279
that we can sometimes unintentionally create some of these traps,
527
00:31:25.119 --> 00:31:27.640
the harder questions and of course the hardest questions, these
528
00:31:27.680 --> 00:31:30.559
blame questions and the threat questions. We always will go
529
00:31:30.640 --> 00:31:33.680
through these with the witness to let them know when
530
00:31:33.720 --> 00:31:37.240
you start answering these easy questions without thinking, you're going
531
00:31:37.279 --> 00:31:39.839
to set traps for yourself and here's the blame that
532
00:31:39.880 --> 00:31:44.279
it's going to ultimately result in. All right, And as
533
00:31:44.319 --> 00:31:46.960
I said, we've been going thirty minutes and I'm not
534
00:31:47.160 --> 00:31:50.279
close to the Let's keep on track, and I do
535
00:31:50.319 --> 00:31:52.680
when it takes some time at the end to top
536
00:31:52.720 --> 00:31:56.799
three questions. Now the slide is my slide again, I
537
00:31:56.880 --> 00:32:00.240
draw the picture. I do whatever. This is a lot
538
00:32:00.319 --> 00:32:03.640
from Bill Kanaski's witness prep of like, these are thoughts
539
00:32:03.640 --> 00:32:06.799
that he has that he wants to cover the sub thing,
540
00:32:06.920 --> 00:32:09.039
so he calls it the brain game, the explain game,
541
00:32:09.079 --> 00:32:11.960
the shame game, et cetera. These are some things from
542
00:32:12.039 --> 00:32:16.519
my experience from my witnesses that then I put in
543
00:32:16.559 --> 00:32:20.440
there to combine it with the rules with our rules
544
00:32:20.480 --> 00:32:25.000
on how we go about preparing the witness. So with
545
00:32:25.119 --> 00:32:28.960
the brain game, this is the memory test. Well, why
546
00:32:29.000 --> 00:32:31.200
did you agree so that this happened, and then this happened,
547
00:32:31.200 --> 00:32:34.240
and then after that that happened. When our witness answers
548
00:32:34.240 --> 00:32:36.839
without looking at the records to confirm it's true, remember,
549
00:32:36.960 --> 00:32:41.359
the new truth is created. So the rules here are Listen, think,
550
00:32:42.839 --> 00:32:46.960
then respond. Okay, I have not yet had a witness
551
00:32:47.000 --> 00:32:49.839
like checking their phone during a deposition, but sometimes you
552
00:32:49.880 --> 00:32:51.559
can tell it the brief they're trying to scramble to
553
00:32:51.559 --> 00:32:54.839
get emails done. I tell him, a witness, you put
554
00:32:54.839 --> 00:32:58.279
that away, Like we'll take an hour for lunch. That
555
00:32:58.400 --> 00:33:00.240
might be a good time to take fifteen minut to
556
00:33:00.240 --> 00:33:03.160
make sure there's no fires. But your brain has to
557
00:33:03.200 --> 00:33:07.279
be here all day. Don't multitask, and God, ask yourself,
558
00:33:07.279 --> 00:33:10.519
does this question makes sense? When I'm dealing with a driver,
559
00:33:10.640 --> 00:33:13.480
like commercial motor vehicle stuff that I do, sometimes I
560
00:33:13.519 --> 00:33:16.279
talk to the driver. You know, driver's always taught fifteen
561
00:33:16.319 --> 00:33:19.680
seconds ahead of you when you're on the interstate. Do
562
00:33:19.759 --> 00:33:22.160
the same thing here in the deposition. Okay, this brain game,
563
00:33:22.200 --> 00:33:25.920
when they're trying to test your memory, understand why they're
564
00:33:25.920 --> 00:33:28.799
doing what they're doing, and then obviously know when they're
565
00:33:28.799 --> 00:33:32.359
in the flying spot, then they explain game when they're
566
00:33:32.359 --> 00:33:34.920
trying to get you to explain something. This is again
567
00:33:35.039 --> 00:33:39.000
remember the bottles versus buckets. And I also give an example
568
00:33:39.000 --> 00:33:41.279
of playing battleship with my daughter. That's a picture that's
569
00:33:41.319 --> 00:33:43.960
up there. It's kind of small, but playing battleship with
570
00:33:44.000 --> 00:33:47.119
my daughter when she was a little girl, she would say,
571
00:33:47.119 --> 00:33:49.960
see nineteen and I'd be a good dad. I'm like, no,
572
00:33:50.039 --> 00:33:52.920
but you're really close, you know, I'd be a sinki
573
00:33:52.960 --> 00:33:55.240
d accause she's never close, but I tell her she was.
574
00:33:55.720 --> 00:33:57.759
But that's not a good way to play battleship. Visit.
575
00:33:59.000 --> 00:34:01.079
That's not a good way to play. Don't You don't
576
00:34:01.119 --> 00:34:02.640
tell the person? Oh man, if you would have guessed
577
00:34:02.680 --> 00:34:05.279
be fourteen, you'd have nailed it. You know, that's not
578
00:34:05.319 --> 00:34:07.640
what you do. And same thing with the witnesses. When
579
00:34:07.640 --> 00:34:10.280
the other side's asking you these questions, you're kind of
580
00:34:10.280 --> 00:34:13.559
playing battleship. You've got to be honest and truthful, but
581
00:34:13.639 --> 00:34:17.239
you don't have to be helpful. Okay, strict precisions the
582
00:34:17.320 --> 00:34:22.079
key and obviously staying or laying being concise and being
583
00:34:22.159 --> 00:34:25.760
precise the word game questions. And this is something that
584
00:34:25.800 --> 00:34:27.599
if you ever have a chance to listen to Bill
585
00:34:27.639 --> 00:34:31.239
Kanaski's podcast, please do it. He talks about these things.
586
00:34:31.599 --> 00:34:33.239
These are things that he will go in much more
587
00:34:33.639 --> 00:34:37.800
greater detail then I will go through today. But there's
588
00:34:37.840 --> 00:34:40.599
a formula the planet's bar uses. They get you to
589
00:34:40.679 --> 00:34:43.760
agree with yes or no questions, They set the new rules.
590
00:34:45.239 --> 00:34:47.400
Then they take in another step and they get the
591
00:34:47.400 --> 00:34:51.000
witness to agree that if that rule is broken, people
592
00:34:51.000 --> 00:34:51.639
can get hurt.
593
00:34:53.000 --> 00:34:55.039
If that rule is broken, well.
594
00:34:54.880 --> 00:34:57.519
Then you've broken the rules. And then they go to
595
00:34:57.519 --> 00:35:02.760
the next step and make it case specific. Okay, well,
596
00:35:02.800 --> 00:35:05.519
in this case, the plaintiff did this and your product
597
00:35:05.519 --> 00:35:08.239
did this, so therefore you would agree that that product
598
00:35:08.280 --> 00:35:11.119
that broke the rules hurt my plaintiff. And then all
599
00:35:11.159 --> 00:35:13.519
of a sudden you're in d You're doomed. You see
600
00:35:13.519 --> 00:35:15.920
how they kind of lay these things out. Now, they're
601
00:35:15.960 --> 00:35:19.920
not as formulaic overtly because they don't want us to
602
00:35:19.960 --> 00:35:22.079
know what they're doing. They don't want the witness to
603
00:35:22.119 --> 00:35:24.800
know what they're doing, So they sprinkle the safety rules
604
00:35:24.800 --> 00:35:27.199
throughout the beginning of the deposition, and then they sprinkle
605
00:35:27.400 --> 00:35:30.519
stage B in the middle of the deposition. Then at
606
00:35:30.559 --> 00:35:31.960
the end they come back to it. Well, sir, at
607
00:35:32.000 --> 00:35:34.800
the beginning of the deposition, remember when you agreed that
608
00:35:35.119 --> 00:35:41.480
blank and then you also admitted that this, So you agree,
609
00:35:41.519 --> 00:35:43.960
then if your company would have just done this, this,
610
00:35:44.000 --> 00:35:45.960
and this, my client would still be able to walk.
611
00:35:47.519 --> 00:35:49.239
Then all of a sudden, you're kind of in that doom.
612
00:35:49.400 --> 00:35:52.599
That's the word game. Okay. There's a whole formula that
613
00:35:52.639 --> 00:35:54.719
we want to go through in a witness prep to
614
00:35:54.880 --> 00:35:57.320
walk through them with them. And this is a large
615
00:35:57.400 --> 00:36:00.960
part y'all. This is a large part of my question
616
00:36:01.079 --> 00:36:04.719
and answer my practice sessions. This is the muscle memory
617
00:36:05.360 --> 00:36:08.800
where they have to learn how to anticipate what is
618
00:36:08.840 --> 00:36:13.440
really happening behind the scenes. Okay, And then when our
619
00:36:13.480 --> 00:36:17.559
witnesses do really well, When our witnesses do really well,
620
00:36:18.239 --> 00:36:22.400
the shame game starts. Wait, sir, So, sir, are you
621
00:36:22.639 --> 00:36:27.440
really telling me that I do that in my witness
622
00:36:27.440 --> 00:36:30.679
prep I get into the family. Are you seriously saying that?
623
00:36:31.719 --> 00:36:33.599
And when a witness is ready, I know it because
624
00:36:33.599 --> 00:36:37.000
the witness looks at me in the eyes and says, yeah,
625
00:36:37.079 --> 00:36:42.360
that's that's what I told you. Dang. That's how I
626
00:36:42.400 --> 00:36:45.320
know they're ready. Okay, It's like the little peg on
627
00:36:45.360 --> 00:36:48.360
the turkey pops out because they know how to handle
628
00:36:48.960 --> 00:36:53.360
these shame game questions. Okay, So these are the kind
629
00:36:53.360 --> 00:36:56.360
of slides that I go through at the end of
630
00:36:56.360 --> 00:37:00.760
the day. With the human perspective and witness prep the
631
00:37:00.840 --> 00:37:04.280
number one thing is credibility. And these are some things
632
00:37:04.280 --> 00:37:08.280
that when I was talking with Jennifer and Steve and
633
00:37:08.519 --> 00:37:11.719
y'all's experience, especially in workers comp when you're dealing with
634
00:37:12.480 --> 00:37:16.199
corporate witnesses or risk managers, people who are defending the
635
00:37:16.239 --> 00:37:20.800
decisions that were made about this particular worker's claim. What
636
00:37:20.920 --> 00:37:25.079
are the keys? What are these key factors of credibility.
637
00:37:26.559 --> 00:37:28.440
These are some of the things that we came up with,
638
00:37:29.000 --> 00:37:33.760
and I think these are all correct. Being organized knowing
639
00:37:33.880 --> 00:37:40.039
what is in the records, conversely, knowing what is not
640
00:37:41.559 --> 00:37:45.719
in the records. Knowing where the information is in the records,
641
00:37:45.719 --> 00:37:47.920
so if they're handed something, they know where to look.
642
00:37:48.440 --> 00:37:50.400
These are things that we as lawyers can work with
643
00:37:50.440 --> 00:37:53.239
them on and make sure they're super comfortable with what
644
00:37:53.440 --> 00:37:57.519
is and is not in there. Again, the preparation, it
645
00:37:57.719 --> 00:38:02.079
is a tricky thing. Being deposed by a really smart lawyer.
646
00:38:02.559 --> 00:38:06.480
Is a very tricky thing. And the more prepared we
647
00:38:06.519 --> 00:38:09.400
make them, the more they move around that competency grid,
648
00:38:10.199 --> 00:38:12.920
the more comfortable they're gonna be. Now, I don't believe
649
00:38:12.960 --> 00:38:15.159
for a second that in five prep sessions we're going
650
00:38:15.239 --> 00:38:19.280
to get a witness into that unconscious competence grid that
651
00:38:19.360 --> 00:38:22.679
takes years. That's like expert witness And we all know
652
00:38:22.719 --> 00:38:25.960
those experts, don't we They're to post three times a week.
653
00:38:26.760 --> 00:38:30.280
You're not going to trickle. They're unconscious competent. You know,
654
00:38:30.400 --> 00:38:32.480
they show up that day and they look, flip through
655
00:38:32.480 --> 00:38:34.800
the records real quick and they do fine. We are
656
00:38:34.800 --> 00:38:37.239
not going to get our witnesses there. That's kind of
657
00:38:37.280 --> 00:38:41.480
a good goal. Obviously being honest. Now, being honest means
658
00:38:42.159 --> 00:38:44.119
they have to know the records because again, if they
659
00:38:44.159 --> 00:38:48.599
create a new truth in their testimony that is not
660
00:38:48.679 --> 00:38:52.519
worn out by the records, well that's not all that honest,
661
00:38:52.639 --> 00:38:55.719
is it. And that's what I asked my witness in
662
00:38:55.800 --> 00:38:59.320
the prep. So if we're inaccurate in the deposition, that's
663
00:38:59.360 --> 00:39:03.360
actually not being truthful. That's my left hand not being truthful. Right,
664
00:39:04.559 --> 00:39:08.079
got to be calm. What's the thing that makes us
665
00:39:08.119 --> 00:39:15.679
as lawyers the most calm when we're prepared, when we're
666
00:39:15.719 --> 00:39:18.480
being a prophet, when we already know what's going to
667
00:39:18.519 --> 00:39:22.239
happen before it happens. That's at least when I'm the calmist.
668
00:39:23.480 --> 00:39:27.480
When am I the most anxious when I'm facing the
669
00:39:27.519 --> 00:39:31.719
unknown when something is uncertain, Yeah, I go nuts. I
670
00:39:31.719 --> 00:39:35.239
hate it. I hate it, and it makes me anxious,
671
00:39:35.280 --> 00:39:38.679
It makes me uptight, it makes me anything but calm.
672
00:39:38.920 --> 00:39:41.159
So you see this is where again, when we're in
673
00:39:41.199 --> 00:39:43.920
our first session with the witnesses, we're explaining, you're going
674
00:39:44.000 --> 00:39:47.599
to be more calm if you give me more time here,
675
00:39:49.360 --> 00:39:51.480
if you don't fight me on having three more of
676
00:39:51.519 --> 00:39:55.400
these prep sessions, you're going to be calmer and the
677
00:39:55.440 --> 00:39:59.239
deposition right, let me ask you all this. So we've
678
00:39:59.320 --> 00:40:03.760
now thirty eight minutes leave sometime. I would love to
679
00:40:03.800 --> 00:40:07.239
hear y'all's thoughts and I can pull down these slides
680
00:40:07.280 --> 00:40:12.840
so we can see each other. What the thoughts do
681
00:40:12.880 --> 00:40:19.719
you all have in what works for you? Anybody, any questions,
682
00:40:20.000 --> 00:40:24.440
any thoughts? Chris, I had a question. This is Jennifer.
683
00:40:25.679 --> 00:40:27.880
And one thing that comes up a lot with our
684
00:40:28.360 --> 00:40:32.920
witness prep is that we are dealing with supervisors who
685
00:40:33.039 --> 00:40:40.039
might be openly frustrated with the claimant their employees, there's
686
00:40:40.400 --> 00:40:42.559
and there's a risk of them coming across this hostile
687
00:40:42.639 --> 00:40:45.000
or vindictive. And you probably address some of this and
688
00:40:45.119 --> 00:40:46.360
fight in the.
689
00:40:46.320 --> 00:40:48.280
Fight portion of your presentation.
690
00:40:48.400 --> 00:40:51.360
But what kind of advice would you give them or
691
00:40:51.400 --> 00:40:53.400
how would you go about prepping that that kind of
692
00:40:53.440 --> 00:40:57.239
witness in that workers talk scenario?
693
00:40:59.440 --> 00:41:06.320
Your music is the world's better when I'm muted, the
694
00:41:07.440 --> 00:41:10.840
initial thought that I have on that, Jennifer. It's the
695
00:41:10.880 --> 00:41:12.960
same thing when we're in a fight with a spouse
696
00:41:13.079 --> 00:41:18.000
or a friend, or a colleague or a coworker. Tension
697
00:41:18.039 --> 00:41:21.679
never resolves when we get away from facts, right, And
698
00:41:21.719 --> 00:41:25.519
so when there's this frustration with an employee, freem a
699
00:41:25.599 --> 00:41:28.760
supervisor's perspective, I think in the prep you first want
700
00:41:28.800 --> 00:41:30.480
to let them talk as much as they want to
701
00:41:30.559 --> 00:41:33.039
about it, give them a mic, give them a stage,
702
00:41:34.000 --> 00:41:37.800
Listen to what they're saying, and then pay attention to
703
00:41:37.880 --> 00:41:42.159
what's fact and what's emotion. Right, pay attention to what's
704
00:41:42.159 --> 00:41:45.639
fact and then what's their surmise. You know, as humans,
705
00:41:45.639 --> 00:41:49.159
we have a tendency to sometimes assume the worst, and
706
00:41:49.239 --> 00:41:53.599
certain people, usually with regard to politics. You know, someone
707
00:41:53.639 --> 00:41:56.559
who disagrees with us must be intentionally doing this, and
708
00:41:56.599 --> 00:41:59.360
I think it could be helpful to identify with the supervisor. Okay,
709
00:41:59.400 --> 00:42:02.360
so let's do a little diversion here about what are
710
00:42:02.400 --> 00:42:05.440
you assuming about this person versus what's the fact and
711
00:42:05.480 --> 00:42:09.559
then obviously putting into context for purposes of the deposition
712
00:42:09.639 --> 00:42:11.880
and the subject matter of what's going on and what's
713
00:42:11.920 --> 00:42:14.599
going to be asked. Make sure the supervisor knows to
714
00:42:14.639 --> 00:42:20.119
stick with the fact, right, leave out your emotional response. Now,
715
00:42:20.199 --> 00:42:22.519
the climate's counsel is going to want to evoke that
716
00:42:22.599 --> 00:42:27.199
emotional response. It may benefit them knowing that going in,
717
00:42:27.280 --> 00:42:31.000
I think may be helpful. What are your thoughts? I mean, Jennifer,
718
00:42:31.039 --> 00:42:32.920
it sounds like something that you've handled. I would love
719
00:42:32.960 --> 00:42:34.440
to learn from you. How have you handled that in
720
00:42:34.480 --> 00:42:35.320
the past.
721
00:42:37.800 --> 00:42:39.840
I want to say I have given the same exact
722
00:42:39.840 --> 00:42:45.719
advice that you gave. But yes, something along those lines
723
00:42:45.800 --> 00:42:46.880
like let's stick to the facts.
724
00:42:46.880 --> 00:42:48.639
They're going to try to make you angry and things
725
00:42:48.679 --> 00:42:52.679
like that. So yeah, my friend Clint with almost the
726
00:42:52.719 --> 00:42:56.679
same name, we get each other's emails because he's see
727
00:42:56.719 --> 00:42:59.679
Turley and I'm ce Turney. He popped in with a
728
00:42:59.719 --> 00:43:02.199
really good question, and it's a question that we as
729
00:43:02.320 --> 00:43:05.440
lawyers struggle with. Do you give the two to five
730
00:43:05.480 --> 00:43:08.280
second rule if it's a video taped up and my answers, yes,
731
00:43:08.840 --> 00:43:15.519
now two seconds it's contemplative. Now, the rule that I
732
00:43:15.559 --> 00:43:18.000
give my witness with that is you want to be
733
00:43:18.039 --> 00:43:24.079
consistent with it. Right. If you're consistently calculating and slow
734
00:43:24.119 --> 00:43:27.960
how you answer, you just come off as a contemplative,
735
00:43:28.320 --> 00:43:32.079
smooth witness. But if you're getting wound up and you
736
00:43:32.079 --> 00:43:35.360
start answering really quick and then you slow way down,
737
00:43:36.079 --> 00:43:40.119
I think that inconsistency is what can become a problem.
738
00:43:40.599 --> 00:43:43.719
So I do encourage my witnesses to do that. Even
739
00:43:43.760 --> 00:43:46.480
on video. Two seconds isn't quite as long as we
740
00:43:46.519 --> 00:43:50.800
feel like it is when we're watching something on video. Now,
741
00:43:50.840 --> 00:43:53.000
with that, let me turn it over to you all.
742
00:43:53.039 --> 00:43:53.719
What do you think?
743
00:43:57.320 --> 00:44:03.199
Yeah, like my experience, christ be the having the consistency
744
00:44:04.320 --> 00:44:10.800
just makes the listener understand and appreciate that's just how
745
00:44:10.840 --> 00:44:15.400
this person is. That is their approach. And if they
746
00:44:15.400 --> 00:44:19.320
come across as calm, cool and collected and they take
747
00:44:19.320 --> 00:44:22.400
their time and give it two or three seconds, it's
748
00:44:22.519 --> 00:44:25.840
never I've never seen it as a negative or someone's
749
00:44:25.880 --> 00:44:29.280
like that person is hiding something, that person's dumb, they
750
00:44:29.280 --> 00:44:32.039
don't know what they're doing, and they're using that time
751
00:44:33.000 --> 00:44:37.719
as a stall tactic. As long as it's consistent, I've
752
00:44:37.719 --> 00:44:39.679
never seen it have a negative consequence.
753
00:44:41.559 --> 00:44:48.199
Great other thoughts, Chris, I tell witnesses not to rush
754
00:44:48.199 --> 00:44:52.199
through things. We'll take as long as it needs, you know,
755
00:44:52.239 --> 00:44:54.880
if it's if it's a half hour, if it's all day,
756
00:44:55.199 --> 00:44:57.000
we're going to do We want to do it. We
757
00:44:57.159 --> 00:44:58.960
want to do it right. We don't want to rush
758
00:44:58.960 --> 00:45:01.239
through this thing and give the wrong answer.
759
00:45:03.119 --> 00:45:06.639
Excellent. One lawyer I was against several years ago told
760
00:45:06.639 --> 00:45:11.000
me accuracy is the best advocacy. And I actually wrote
761
00:45:11.000 --> 00:45:13.039
that down and put it on my wall because I
762
00:45:13.039 --> 00:45:16.559
think it's really good. It's hard to be a strong,
763
00:45:16.840 --> 00:45:20.719
credible advocate when you're not being accurate. So we had
764
00:45:20.719 --> 00:45:31.880
another question. H Yeah. James noted that he kind of
765
00:45:32.000 --> 00:45:34.760
used AI to list out the strengths and weaknesses of
766
00:45:34.800 --> 00:45:37.440
the case and went through it with the expert. That
767
00:45:37.519 --> 00:45:39.760
sounds like maybe the opposing counsel had done the same thing,
768
00:45:39.800 --> 00:45:41.760
because it sounds like maybe those were the right questions
769
00:45:41.760 --> 00:45:44.280
that the same questions that were asked. That is a
770
00:45:44.280 --> 00:45:46.480
great AI tool. Hey, I'm a plant's lawyer and I'm
771
00:45:46.480 --> 00:45:48.400
about to cross examine a corporate rep. I want to
772
00:45:48.400 --> 00:45:50.199
make this guy look at a complete moron, and I
773
00:45:50.239 --> 00:45:52.320
want to make his product look like the most interesting
774
00:45:52.400 --> 00:45:55.760
in the world. What should I ask him? Yeh, AI
775
00:45:55.800 --> 00:45:58.360
tools can do a pretty good job leaveing those things out.
776
00:45:59.480 --> 00:46:00.639
I think that's a good use of it.
777
00:46:00.719 --> 00:46:08.639
James, So, Chris, you had talked about taking breaks for
778
00:46:08.880 --> 00:46:11.840
your witness to make sure they don't reach what i'll
779
00:46:11.840 --> 00:46:16.360
call brain fatigue and can stay on their game. Do
780
00:46:16.440 --> 00:46:19.679
you set that up at the very beginning of the
781
00:46:19.719 --> 00:46:26.719
deposition where you teleposing counsel, you know, or the reader
782
00:46:26.920 --> 00:46:29.840
of the transcript. We are going to take a break
783
00:46:29.880 --> 00:46:32.480
every fifty minutes. It's going to be a ten to
784
00:46:32.519 --> 00:46:35.920
twelve minute break, and we will come back and just
785
00:46:36.000 --> 00:46:38.559
kind of set that ground rule. How do you approach that.
786
00:46:39.719 --> 00:46:42.119
I think that's a great idea. I've not implied. I've
787
00:46:42.119 --> 00:46:44.519
not applied that strategy. I think it's a good idea.
788
00:46:46.599 --> 00:46:48.760
What I usually do is make sure that my witness
789
00:46:48.800 --> 00:46:52.360
knows that that's the goal. I tend to be really
790
00:46:52.400 --> 00:46:55.960
bad because I lose track of time, especially if I'm
791
00:46:56.000 --> 00:46:59.400
the questioning lawyer all of a sudden, like court reporters
792
00:46:59.440 --> 00:47:01.400
looking at me like I'm going to get you know.
793
00:47:02.440 --> 00:47:04.679
But when you're defending the deposition, it's a little bit
794
00:47:04.719 --> 00:47:07.559
easier to kind of set your watch, set your timer
795
00:47:07.880 --> 00:47:10.639
and do that. I have set a timer before on
796
00:47:10.679 --> 00:47:13.639
my wrist to make it buzz, but I usually don't
797
00:47:13.639 --> 00:47:15.320
set that groundle at the beginning. But that might be
798
00:47:15.320 --> 00:47:18.480
a really good, good idea.
799
00:47:19.280 --> 00:47:21.000
You're good into the question for Bobby.
800
00:47:21.280 --> 00:47:24.360
Yeah, Texas, how you doing? My friends good to see
801
00:47:24.360 --> 00:47:29.320
your prep strategy. Depending on whether the deposition is taken
802
00:47:29.360 --> 00:47:32.239
live or virtually, I'll tell you I don't. I don't.
803
00:47:32.360 --> 00:47:34.840
There are certainly other key you know, other issues that
804
00:47:34.880 --> 00:47:37.559
come up with the virtual. It's a little bit harder
805
00:47:37.559 --> 00:47:40.519
to read an entire document. I don't know if y'all
806
00:47:40.559 --> 00:47:43.079
are like me, A lot of us are probably around
807
00:47:43.119 --> 00:47:46.559
that same age. I still need paper to really absorb
808
00:47:46.599 --> 00:47:49.639
what I'm reading. I wish I could learn from reading
809
00:47:49.679 --> 00:47:52.480
a screen. I just can't. I do think that makes
810
00:47:52.519 --> 00:47:56.960
it challenging with some of our witnesses, especially witnesses our age.
811
00:47:57.079 --> 00:47:59.400
You know where if it's virtual, I think we have
812
00:47:59.480 --> 00:48:01.800
to take a little bit more time and tell our
813
00:48:01.840 --> 00:48:04.440
witness to make sure that they take the time to
814
00:48:04.559 --> 00:48:09.480
see the whole context of a screen quick little war store.
815
00:48:09.480 --> 00:48:12.400
I was trying a case in Philadelphia several years ago
816
00:48:12.440 --> 00:48:16.440
and Plans Council put on the ELMO this little piece
817
00:48:16.440 --> 00:48:18.719
of medical literature and had like a footnote that he
818
00:48:18.840 --> 00:48:21.639
was pulling in and I could tell part of it
819
00:48:21.760 --> 00:48:25.119
was cut off, And so before I went up and
820
00:48:25.239 --> 00:48:27.159
did a redirect of my expert, I kind of looked
821
00:48:27.159 --> 00:48:28.519
at the whole thing. Of course, the part that he
822
00:48:28.639 --> 00:48:31.400
cut off crushed his case, right. It was the dumbest
823
00:48:31.440 --> 00:48:33.599
thing I've seen the lawyer do in my entire career.
824
00:48:34.119 --> 00:48:38.800
But I guess that example applies to virtual exhibits. If
825
00:48:38.840 --> 00:48:41.280
anything is cut off or hidden from the document, we
826
00:48:41.320 --> 00:48:43.199
need to make sure our witnesses know, Hey what, No,
827
00:48:43.360 --> 00:48:46.559
we need to zoom out, you slow it down, let's
828
00:48:46.559 --> 00:48:48.440
take a look at the whole document. That would be
829
00:48:48.519 --> 00:48:51.800
one difference. Let me flip that around everyone else. What
830
00:48:51.880 --> 00:48:56.880
are you all seeing with the virtual with the virtual depositions,
831
00:48:56.880 --> 00:48:57.559
that is different.
832
00:49:01.880 --> 00:49:05.239
It's hard for plaintifs attorneys, in my experience, to get
833
00:49:05.360 --> 00:49:11.239
documents exhibits on a virtual deposition. They don't. The ones
834
00:49:11.280 --> 00:49:14.280
I do with don't have the skills, the tech skills
835
00:49:14.280 --> 00:49:15.400
to pull that off.
836
00:49:15.519 --> 00:49:17.119
In a live deposition.
837
00:49:17.159 --> 00:49:20.400
It's here you slide across the table from to them.
838
00:49:21.239 --> 00:49:24.599
Gotcha. Yeah, I prefer in person anyway. But yeah, that's
839
00:49:24.880 --> 00:49:28.199
the point. Eileen asked a really good question in the city.
840
00:49:29.440 --> 00:49:35.679
This is presentation for Do we get pushed back from carriers? Yes,
841
00:49:35.840 --> 00:49:41.440
we do. I don't care. I've been blessed to end
842
00:49:41.519 --> 00:49:44.760
up with the carriers that allow me to do my thing.
843
00:49:45.920 --> 00:49:49.320
I have let go of some carriers over the last
844
00:49:49.360 --> 00:49:50.960
four or five years. You would not let me do
845
00:49:51.000 --> 00:49:53.760
my thing. And it's just it's not a bad breakup.
846
00:49:53.800 --> 00:49:55.280
It's not like I'm mad at. I'm not just saying
847
00:49:55.320 --> 00:49:56.800
that's not how I do things. I want to do
848
00:49:56.840 --> 00:49:58.639
things this way, and I need to have a team
849
00:49:59.239 --> 00:50:02.360
that is going to do things this way. I do
850
00:50:02.480 --> 00:50:04.920
believe that as the defense bar we need to be
851
00:50:05.159 --> 00:50:10.440
pushing back on some of this thought I quick, I
852
00:50:10.440 --> 00:50:14.199
think this will be quick. Take an analysis of like
853
00:50:14.280 --> 00:50:18.280
the pie chart of the claims dollars that insurance companies spend.
854
00:50:19.760 --> 00:50:22.159
The math generally works out about eighty percent of its
855
00:50:22.239 --> 00:50:27.119
settlements and twenty of it is constant a defense. Now
856
00:50:27.159 --> 00:50:30.559
that twenty percent constant defense is partially US, it's partially experts,
857
00:50:30.599 --> 00:50:33.199
court reporters, et cetera. Okay, but let's focus on the
858
00:50:33.280 --> 00:50:36.199
eighty percent that they're paying out in settlements and claims.
859
00:50:38.960 --> 00:50:42.480
Mberd's contingency fee around here for civil cases is forty percent.
860
00:50:44.079 --> 00:50:48.119
What's forty percent of eighty percent four times eight for
861
00:50:48.239 --> 00:50:52.400
the math wizzess, it's not thirty two percent. So, dear
862
00:50:52.519 --> 00:50:55.039
insurance company, you are giving thirty two percent of your
863
00:50:55.079 --> 00:50:58.599
claims dollars to my opponent, and you're giving me less
864
00:50:58.639 --> 00:51:03.559
than twenty percent. The math doesn't math. And that's another
865
00:51:03.639 --> 00:51:05.719
key part on that grid that I showed you all
866
00:51:05.719 --> 00:51:09.000
that's in the bottom right hand corner. It's carrier behavior.
867
00:51:09.440 --> 00:51:13.880
We're feeding the beast. We're overpaying on settlements, we're cutting
868
00:51:13.920 --> 00:51:16.559
costs too much on the defense. So we're not preparing
869
00:51:16.599 --> 00:51:18.800
the way we need to prepare. This is a part
870
00:51:18.840 --> 00:51:21.039
of the lecture that I give to the insurance industry.
871
00:51:21.719 --> 00:51:23.719
I'm not always invited to talk to them, but when
872
00:51:23.760 --> 00:51:26.280
I am invited, this is what I'm talking to them about.
873
00:51:26.400 --> 00:51:29.679
Is we've got to change our structure. We've got to
874
00:51:29.760 --> 00:51:34.119
change our investment model because paying the plants bar twelve
875
00:51:34.159 --> 00:51:37.840
percent more than you're spending on the defense is not sustainable.
876
00:51:38.400 --> 00:51:41.760
They're turning that into advertising dollars. They're turning that into
877
00:51:41.800 --> 00:51:46.679
their own specialized AI models that are doing a fantastic job. Right.
878
00:51:47.119 --> 00:51:48.840
So that's probably more of an answer than you were
879
00:51:48.880 --> 00:51:54.760
asking for, Eileen, But I could not do it. Excellent
880
00:51:54.800 --> 00:51:55.840
thoughts and questions.
881
00:51:57.039 --> 00:52:00.199
What is basically the questions?
882
00:52:01.199 --> 00:52:05.239
I've got one, Chris, and it's based on a worst story.
883
00:52:06.679 --> 00:52:12.960
Had a employer supervisor witness testify and I've been through
884
00:52:13.000 --> 00:52:15.639
the case with her two or three times in person
885
00:52:15.679 --> 00:52:20.920
before and then zoom. During the deposition, She's asked a
886
00:52:21.000 --> 00:52:23.280
question by opposing counsel and she says, Oh, I've got
887
00:52:23.280 --> 00:52:28.400
that in my desk file. I've asked for every document
888
00:52:28.480 --> 00:52:31.239
under the sun. I'm like, oh my gosh, what is
889
00:52:31.280 --> 00:52:31.920
she talking about?
890
00:52:31.920 --> 00:52:32.599
A desk file?
891
00:52:33.000 --> 00:52:36.480
How do you train witnesses from day one to get
892
00:52:36.559 --> 00:52:39.840
you every document, including their desk file?
893
00:52:40.960 --> 00:52:46.400
Yeah, have a rewind button, see you a rewind button.
894
00:52:48.239 --> 00:52:53.840
I've lived through that and it's miserable. I recently had
895
00:52:53.840 --> 00:52:57.039
corporate reps same way. Like, oh, yeah, there's this other file.
896
00:52:57.039 --> 00:53:00.079
I'm wait, wait what now? I look at it and
897
00:53:00.159 --> 00:53:02.880
internally I say, gosh, now, that's a failure for me
898
00:53:03.000 --> 00:53:06.719
for not asking that specific question. We do as lawyers
899
00:53:06.719 --> 00:53:10.000
have to be fair to ourselves, right, and our clients
900
00:53:10.079 --> 00:53:13.519
know their business better than we know it, and that's
901
00:53:13.599 --> 00:53:15.599
I think the closest we can get is tell them
902
00:53:15.639 --> 00:53:18.880
that in that first press prep session you know where
903
00:53:18.920 --> 00:53:22.440
the documents are. I don't, and order for me to
904
00:53:22.480 --> 00:53:26.039
help you, I need to know everything. Don't hide anything
905
00:53:26.079 --> 00:53:30.159
from me. We can deal with anything but surprise, right,
906
00:53:31.079 --> 00:53:35.320
But in real time, when it happens like that, there's
907
00:53:35.360 --> 00:53:38.599
nothing more you can do. It's just frustrating. But with
908
00:53:38.760 --> 00:53:43.199
that said, that's my defeatist answer. What has worked for
909
00:53:43.320 --> 00:53:46.000
anyone else in this crew? Let's let's dive into this
910
00:53:46.000 --> 00:53:50.000
this This does happen way too often, doesn't it? What
911
00:53:50.159 --> 00:53:50.880
works for y'all?
912
00:53:53.000 --> 00:53:56.480
I literally tell new witnesses about that event, and I say,
913
00:53:56.679 --> 00:53:58.880
we don't want to have that happen in your game.
914
00:54:00.320 --> 00:54:03.159
To give me the documents here, right.
915
00:54:05.679 --> 00:54:06.280
Hi, Chris.
916
00:54:06.639 --> 00:54:11.039
From my standpoint, when I have to deal with employer
917
00:54:11.119 --> 00:54:13.719
based witnesses, a lot of times it starts out with
918
00:54:14.199 --> 00:54:17.440
just a big net cast out by opposing counsel. And
919
00:54:17.480 --> 00:54:19.320
then of course I don't want to have to do
920
00:54:19.760 --> 00:54:22.760
you know, twenty people, so you know you want to
921
00:54:22.840 --> 00:54:24.760
you want to sort of narrow the focus and get
922
00:54:24.760 --> 00:54:27.119
it down to that person whatever it's you know, the
923
00:54:27.119 --> 00:54:30.000
pm K or the pm Q whatever, but that one
924
00:54:30.079 --> 00:54:32.000
person that will be the sort of the one stop shopping.
925
00:54:32.039 --> 00:54:32.760
But along the.
926
00:54:32.719 --> 00:54:35.880
Way, I always ask, always cross reference.
927
00:54:35.920 --> 00:54:39.280
Oh if I'm gonna end up with with with Bill
928
00:54:39.480 --> 00:54:41.599
at the end of the thing, but I'm starting with
929
00:54:41.639 --> 00:54:44.920
Mary and Carol and Steve and Bobby and you know Ryan,
930
00:54:45.440 --> 00:54:49.239
I ask what other files could there be out there
931
00:54:49.440 --> 00:54:52.039
that either you know about or you've seen basically, And
932
00:54:52.079 --> 00:54:53.119
so as.
933
00:54:53.000 --> 00:54:56.599
I do sort of that reverse telescope downward to winning
934
00:54:56.599 --> 00:55:00.519
it down to a witness or two, I try to
935
00:55:00.760 --> 00:55:03.199
ask that question. Not always successful. And I've been in
936
00:55:03.559 --> 00:55:06.360
Steve's shoes as well too, where you know, you get
937
00:55:06.400 --> 00:55:09.440
surprised and what did my old trial pactors lawyers say?
938
00:55:09.840 --> 00:55:11.480
Approach of what I said, When you're a young lawyer,
939
00:55:11.920 --> 00:55:14.320
you never wear light colored pants because they'll know when
940
00:55:14.320 --> 00:55:18.719
there's a surprise growing for you, sir. You know, so anyway,
941
00:55:18.960 --> 00:55:20.880
but that's that's what I try to do. I try to,
942
00:55:21.199 --> 00:55:24.440
you know, just get the much information on board as possible,
943
00:55:24.559 --> 00:55:28.320
and hopefully someone will give you a reference point to
944
00:55:28.639 --> 00:55:30.800
keep asking that question as you go along with your progression.
945
00:55:31.800 --> 00:55:37.360
I like that, Jeff, and good to see you. Yeah,
946
00:55:37.440 --> 00:55:39.960
I know. Well, I'm going to maybe dive a little
947
00:55:39.960 --> 00:55:44.400
bit deeper because what you just said provide some another
948
00:55:44.480 --> 00:55:47.840
layer too. Maybe a question we ask our witnesses is, hey,
949
00:55:48.800 --> 00:55:51.599
what emails do other people have from you that I
950
00:55:51.719 --> 00:55:56.360
haven't seen? Because that's the email web that we have today, right,
951
00:55:56.559 --> 00:55:59.400
And I always hate when the other side produces documents
952
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to me. And I'm looking looking through there, and I'm
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seeing a lot of emails from my clients that when
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we did our production last month are not there. That stinks,
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and so, yeah, but that might be a good question
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to ask, Steve.
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It looks like you wrap up and say goodbye and Chris,
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and we thank you for presenting. Today has been great.