Forensic Psychology and Mediation

Hi Welcome to MediatorPodcast.com - A podcast and video series about mediation, negotiation, and collaboration.  My name is Melissa Gragg, I provide online valuation, divorce and mediation services in St. Louis, Missouri.  

Today we will discuss Forensic Psychology and Mediation with Shari Belitz. Shari is an attorney, trial, jury and litigation consultant in New York. She also owns educational company that teaches psychology to litigators. 

 
Welcome Shari!

1. Tell us about your background and how you are helping attorneys.
2. How does Social Psychology play into litigation and mediation?
3. What is cognitive bias?
4. What is Anchoring?
5. What is Adjustment?
6. How does “Anchoring” and “Adjustment” show up in mediation and settlement negotiations?
7. What are some strategies to counter balance these cognitive biases?
   1. Refute the anchor
   2. Offer data as to why the anchor is incorrect
   3. Set your own data-backed anchor
8. Can we walk through an example using these strategies – when a business valuation is involved and maybe there is an offer on the table that is really low?
9. What are some other ways to use psychology in the mediation or negotiation process?
10. Tell us how attorneys and mediators can work with you. 

Melissa Gragg
CVA, MAFF, CDFA
Expert testimony for financial and valuation issues
Bridge Valuation Partners, LLC
melissa@bridgevaluation.com
http://www.BridgeValuation.com
http://www.ValuationPodcast.com
http://www.MediatorPodcast.com
https://www.valuationmediation.com
Cell: (314) 541-8163 

Shari Belitz
Litigation Strategist | CEO of Shari Belitz Communications | Founder of EnPSYCHLAWpedia™ | Best Selling Author | Keynote Speaker
Email : shari@sharibelitz.com
Telephone: 1 (929) 457-3030
https://www.linkedin.com/in/shariebelitz/

Transcript

Melissa Gragg: 0:00

Hi, welcome to mediator podcast.com, a podcast and video series about mediation, negotiation and collaboration. My name is Melissa Gregg and I provide online valuation, divorce and mediation services in St. Louis Missouri. Today we'll discuss forensic psychology and mediation with Sherry ballots. Sherry is an attorney as well as a trial jury and litigation consultant in New York. She also owns an educational company that teaches psychology to litigators. Welcome Sherry, how are you?

Shari Belitz: 0:33

I'm doing great. Nice to be here. And Melissa, thanks for having me. So Sherry, tell us a little bit about your background and how you're helping attorneys and maybe how you've moved from being an attorney to a trial consultant. Sure. Um, well, Melissa, I've been an attorney for 23 years. I can't even believe that that's coming out of my mouth, but 23 years, um, I've been in the litigation field and I started my career as a coverage attorney at a small law firm, downtown Manhattan. And then I moved on to become an insurance professional. And during that time I decided to take a leap of faith and pursue a dream that I always had. And I went back to graduate school at night to study forensic psychology with a concentration in jury research, jury science and decision-making, and it was many years later that I realized that dream kind of after I had kids in many, many years later, I became a trial consultant and now I have my own trial consulting firm, Sherry bell it's communications. I love it. So I don't think people totally understand the, you know, cause they might think, okay, well she was an attorney or she is an attorney, but then the psychology thing, you know, like how does this work and talk to us a little bit because you know, I kind of understand and love the psychology part, but how do you see social psychology play into litigation or mediation or this process of kind of dispute, uh, issues? Well, social psychology and psychology in general is so fascinating as you know, and it really is litigation and anything related to litigation like mediation negotiation. It really is a microcosm for life and psychology touches every aspect of litigation of mediation. I talk a lot about human decision-making about group dynamics, um, doing research and studying these things in action, whether it is what is an effective way to conduct a voir Deere who are your best and worst jurors, what is it effective about opening argument, direct examination, but also, um, very few cases get tried statistically. So when we're talking about settlement negotiations, there are so many psychological aspects that go into a negotiation. As you know, I know we've talked a little bit off the record about cognitive biases and anchoring and things like that. So really having a comprehensive understanding of social psychology and maybe your own biases and the biases of other litigants or other attorneys or judges or mediators or jurors can really help you achieve more favorable litigation outcomes, whether it's in the courtroom or whether it's around the negotiation table. Well, and I think that right now with mental health, such a big issue, you know, during this kind of crises and, and things, I think that we don't always understand as professionals what goes into when we are the professional there, right? We're the mediator or we're the attorney or we're the expert witness. Like what we bring to the table also affects how we operate. Right? And so part of it is trying to understand what you bring to the table. And maybe that gets us to a little bit about like, what is cognitive bias? Because I don't know, like I had to kind of make sure I understood what it was too. Um, and I think we understand it conceptually, but we may not understand the words, right? We may not have heard it be called this. And so can you kind of break it down a little bit of what this is? Absolutely. And I agree it's such an intimidating, um, psychologically loaded term, but cognitive bias is really just how our brains are operating. Every day. Our brains are wired to take shortcuts and cognitive biases or mental shortcuts. Sometimes we refer to it as heuristics in psychology and our brains use all sorts of shortcuts. So they don't have to go through that logical rational process because that's long and that takes time. And that takes mental gymnastics. And this is really very anthropological in nature. It was the brain's way of making snap decisions. Um, very fight or flight, very anthropological, really forced survival. And to kind of understand the chaotic complex world we're in. So when we talk about cognitive biases and I'm going to throw one out right now, it's one of my favorite biases to talk about in the context of litigation is confirmation bias because this is a bias. We hear about this a lot because it relates to politics. It relates to the news, it relates to everything, but we hear about confirmation bias because it is truly the advocate's bias. I call it the advocates bias and it is. And what I tell my clients is don't fall in love with your case. It is overweighting your case, your facts, your defense. I say defenses because I mostly work with defense attorneys while really disregarding or dismissing the strengths of the other side. And one of the ways that jury research exercises such as mock trials, focus groups, perception, studies come into play, is they help to defeat the confirmation bias of the advocate. And it's a completely normal by, I shouldn't say normal, who wants to use the word normal in psychology, but it's a completely relatable bias to have confirmation bias as an advocate. Because from the second you get the pleadings from the second you, uh, whether you're filing the complaint, whether you're answering the complaint, when you're answering discovery, when you're taking depositions, arguing motions, you need to have your zealous advocates hat on. And it's a little bit hard to kind of remove that zealous advocates had and you start to really buy into your case. And it's important to get a neutral perspective on your case in order to properly evaluated and get the best possible outcome, whether that's something that is, um, you know, a fruitful, productive settlement, or whether it is knowing when and how to go to trial. Well, and I think that, that, that's very interesting because it was always a little, you know, like I do a lot of partner disputes in divorce and I would see the attorneys get very emotional right. And very like passionate about it. But like there was nobody else there. It was just me, the client and the attorney. So I'm like, why are you getting so passionate and emotional when there's no audience? There's no, we're not on performance mode. And as an expert witness, like we train to be neutral, right. We train to almost have this like semi permanent wall around our emotions and the numbers, right. They're just numbers. What are the numbers? Tell me. And I try not to get into the emotional. So that was always confusing for me. But that's basically what you're talking about is they get so entrenched in that case as if it is their own right. Entrenched is the perfect word because that's what it is. You're living your case. And, um, I remember early on in my career, I represented insurance companies. And I remember arguing that first motion and I arguing with such passion for this insurance company that I think the judge was kind of like, whoa, this is an insurance company versus a bank like who cares? But you really, um, you know, you have a job to do and in order to do it well, that's what you're doing. But it's often at the detriment of a neutral evaluation. So yes, you're entrenched. I think that's the perfect way to put it. Do you think that any of that, like it, cause it's more unconscious? Well, it's not unconscious, but it's more just like a habit. Do you think that that contributes to some burnout in attorneys that they get too far kind of overwhelmed or, or in thrawled in those cases that it kind of, and then if something goes wonky, cause you can't control the clients, like sometimes clients will lie to you. Sometimes things will come out on the stand that, you know, shift the case. Um, but do you think that that contributes to any burnout with attorneys? I do. I think there are a lot of things that contribute to attorney burnout, but certainly that entrenched advocacy, um, is one of the contributing factors might that, that's my belief, whether you're working on really personal cases, um, you know, like you're a plaintiff's med mal attorney or, and you know, you see a lot of like really injured plaintiffs or, you know, you're working in family law or you're working really with people that can absolutely lead to an emotional burnout. As we see in other professions, then there's some of that more detached kind of work like let's take for example, okay. A patent case, like, no, one's like really getting so emotionally charged up necessarily about a patent case, which is like a little more removed than maybe, you know, a custody case or something like that. But you really think of any other profession that has an equally smart, prepared, professional, really shooting down all of your work that you're doing. Like, can you picture a surgeon with another surgeon standing over that first surgeon? No, I don't like the way he made that cut. You made the cut far to the left. You should've made it more to the right. Oh, you're really going to do it that way. I don't think that's too effective. So I think that's another, just kind of that zealous advocacy and having an equally zealous advocate, constantly checking, um, you know, checking and balancing you is something that can lead to burn out though. That's not my area of expertise. That's just my, that's just my, that's just my take. I just think it, I think if you're in this realm, either in litigation, mediation, expert witness attorney, I think that you do have to be aware of kind of preserving your own energy and your own emotions because that is key to kind of longevity in this arena. Um, but as we go back to cognitive biases, you know, there are some other kind of, um, situations and things that you can do to kind of overcome it or to deal with it. And so anchoring and adjustment are two concepts that you've talked about in other capacities. Can you tell us how anchoring or adjustment is related to cognitive bias? Sure. So anchoring and adjustment actually is a cognitive bias. It is one of the more prevalent cognitive biases we see in mediation and litigation. And the way that litigators tend to think of anchoring and adjustment is usually with respect to money or with respect to numbers. So for example, and, um, it's really funny. I was just talking to someone this morning about anchoring and adjustment and about Dan Conaman and Dan Kahneman's, um, partner, um, Amos Torsky who they really pioneered, anchoring and adjustment. And we were talking a little bit about that, but, um, that posits the anchoring bias, posits that, that first number that it is give it that is given whether it is the price of the house, the price of a car or the price on a personal injury case, the audience, whether it's a buyer, whether it's a house buyer, whether it's a juror, whether it's a mediator, whether it's another litigant is going to psychologically use that number and adjust off that number. So there have been studies shown that you can have identical cases. One with the$20 million settlement demand, one with a$10 million settlement demand. And the one with the$20 million settlement demand is going to ultimately settle for more money because it was anchored higher. So I'm going to tell you how to mitigate this, but let me also tell you, anchoring is not only something that we talk about in the realm of money and numbers, you can also anchor case things. You can anchor words, you can anchor concepts and feelings. So for example, let's say you have, um, you're defending a personal injury case and the plaintiff comes up with this as a case about profits over people. I'm just like throwing out a very generic example. Here you are best not to refute that anchor by saying this isn't a case about profits over people. You don't want to him. That's implicit of the anchor. You want to set your own anchor. This is a case about personal responsibility. This is a case about making good choices. So whoever sets that anchor first, whether it's, um, words or a case theme, or it's a monetary amount, they have the advantage. They, they set the anchor in the personal injury context. It is plaintiff's um, a good friend of mine. Who's a defense attorney is very fond of saying, how do you get a large verdict you ask for it? And it's really that simple. That is so interesting. So if we take anchoring, um, because we will see it in business valuation, you know, everybody's like, give me a number, give me a number, give me a number. And I'm like, I, I hesitate even in the preliminary stages, throwing out a number, right? Because it's the same thing. You see it, time and time again, they hear this number. And you know, the interesting part is that sometimes they've heard another number, right? A spouse has said, oh, my business is going to be worth millions in some casual conversation. And so in their mind, it's worth millions. And then we come in and we say, well, maybe it's worth 500,000. And I'm like, what? And this is our own client, right? Because they've already anchored on some pass, pass, pass, pass stuff that we weren't even privy to. Right. And so if I, even if I re anchor it, they're still, you know, like how do you get them not even thinking about that land anymore? Is that the adjustment part? Well, the adjustment part actually works hand in hand with the anchoring in order to set a new anchor when we're talking. Okay. So I'll talk, I'll talk about money in the context of mediation. So let's say plaintiff goes in with that$20 million demand. So the best way to refute that anchor is actually not to give another number, not to say, you know what,$250,000, because by giving that other number by answering that demand so fast, what you're doing is you're implicitly accepting their anchor. And what you're doing is you've just drawn a range between 20 million and 250,000. And now every single person, mediator, litigants attorneys, they are going to adjust. And you're going to get that midpoint problem, which you often see, and that may have no bearing on the case. It may have nothing to do with the value of the case. The value of the case isn't necessarily midway because this person is saying 20 million, this person saying 250, what you have to do is actually refute that first anchor by not implicitly accepting it, not by giving another number, but by really knocking down the, um, premises on which it is built. So, you know, asking about, you know, why, why$20 million show us your reports, show us, like, explain where you're getting the$20 million. So then strategically, now you're moving things up kind of from that lizard brain, those cognitive biases. And you're thinking slow in your thinking with your cerebral cortex. And you are moving things in a direction where you're asking for an explanation, then you can give your own number, but it has to be backed by data. Let's say that number is 250,000 and you're backing it by data. You are now setting your own anchor instead of implicitly accepting that anchor and creating your range and creating your midpoint problem. And it's the same with case themes. You're saying, Y you're not implicitly accepting, you're putting forth your own case theme and giving a compelling, persuasive reason why that is the theme to adopt. That is so interesting. I think that, um, you know, sometimes when we see the situation, uh, from an expert witness perspective, I'm always like, we need to know the other positions basis, uh, the assumptions, you know, like, and we need to solidify them in their position in some capacity, if we have a different position or if we have data that would support a different position, I need them to really anchor hard in their assumptions so that I can, especially if I know the assumption is wrong right. Or, or off by a little bit, those are the places, um, that I think that, you know, a lot of people are not negotiating from logic. They're negotiating from, I want like I want 20 million. Well, and the other side's like, well, I don't want to pay 20 million. I only want to pay 250,000. Now, if you have once on both sides, you're going to have an impasse, right. They're never going to get connected because they just want a random number. And I think that if you understand what goes into it, um, and if it's supportable, then you know, you have a very good point. That's how things, um, kind of get done. What are, I think we've talked about some of the strategies of anchoring and adjustment. Um, do you see any other ways that these issues show up in mediation or settlement negotiations and, and how can we shift an entire case anchor like that is kind of, I haven't heard, you know, like how is it kind of setting the tone for the case ish? Huh. Well, um, in the plaintiff's personal injury context, um, you know, and I'm kind of using that broadly, like that could be anything from a med mal case to a trucking case to, um, and anything like that. I'm just not talking really about commercial litigation so much, but any time an anchor is set. And remember that first anchor can be set, that can be set pre-suit maybe there are negotiations going on. Pre-suit where numbers are being offered and those numbers in order to really make your case. And again, I'm, this is my bias. I'm used to talking to defense attorneys who were the ones who have to kind of refute those initial anchors because we have primacy going in favor of plaintiffs. They're the ones who are putting out the numbers first. So really the defense bar has got to do their work, got to do their work early, their evaluation early and come up with their independent data, backed evaluation. That that's the situation. If we're talking about numbers and demands and things like that, because I will tell you, I've seen a lot of mock trials. Um, I saw one the other day that I was conducting and it's really scary because the mock jurors who are very similar to our real jurors, we know they were talking about a demand that was demanded by the plaintiff's attorney in the complaint. And they were really justifying that demand. They were saying, oh, well, you know, he's asking for 20 million for a purpose. There must, there must be a reason that person must need that much care. He must know something. So that was, um, I, I don't even want to say that was an effective way of setting an anchor that was just slapping a number out there, but you can see what happens in people's minds. So you have to realize as the defense attorney or as, um, I shouldn't be so biased and talk about defense attorneys, but anyone who's trying to defeat an anchor is it is going to take some work. It's not about throwing out another arbitrary number. It is about doing the work, doing the evaluation, um, taking the data and having the data, tell a story, tell a compelling story, whether it's at mediation or whether it's at trial or whether it's kind of somewhere in between it and an informal negotiation. Yeah. And we've seen in some mock trials that we've done for like training purposes with like national organization, the NAC VA we have seen is very interesting that, you know, sometimes it's the number. And sometimes from an expert perspective, it's the credibility. Like we had wonder that was like, well, that person didn't really look at me. Like they, and they seemed really like re you know, like they kind of seem mean and rude and they didn't even acknowledge us. And, you know, we're all sitting around. Cause we, we watched the jury deliberate, right. And listen to what they said. Um, and, um, and it was fascinating. And like a lot of it didn't have to do with the quantification of the numbers, the methodology, whether it was right or wrong. And we had two experts that were fairly new. Right. That's why they were going through it. Um, and it was just fascinating. Cause they were like, you know what? I liked the other guy I'm going to do the 20 million. And it was like, hold on, hold on. Is that the basis of, you know, so I think it does become super important kind of how people relate to people and that's where the psychology comes in as well. You know, if you can connect with the jury or the judge in some capacity and show your credibility, you know, that goes just as far as making sure that the numbers are right, which changes the game. That is apps. It's so funny. I just had this conversation with someone a couple of hours ago because I did a post this morning on LinkedIn, on direct exempt amination and personalizing your witness, whether your witness is a person or whether you're witnesses a corporation about really the mechanics of personalizing them on direct examination because people, and in this case, we mean jurors will be more receptive to people that they like, people that they trust and people that they know. So not only will they win in that credibility department, but also studies have shown that they will remember the testimony more once they really have. Um, we'd like to, in psychology we say the gestalt, like the whole picture of the case, the whole picture of the witness, like let's not look at the witness in a vacuum as someone who has just observed X accident or who was involved in Y situation, let's look at the person holistically because that's, what's going to build credibility. It's going to build rapport and it's going to build trust. Yeah, absolutely. And I think that, you know, I've talked to, um, a lot of other experts around the country and a lot of times it's, it's unique and I've had, uh, attorneys actually hire me in certain cases because I was a, and I think there's a uniqueness in as being an expert and a woman that there, it is easier to relate to the jury. It's easier to relate to the judge because we are kind of, you know, trying to engage in some capacity. Um, but I also think that comes with some experience because when you're first testifying or you're first an attorney, like you're just trying to do the mechanics, right. Like get through the case, try to win dah, the da, you know, like, and you're like, okay, okay. Do you know what you're talking about? And then when you get a little bit more experience, you're like, okay, the nuances of the psychology become hyper important. Right. And you shift because you kind of know the numbers and that stuff. Right. You're, you're pretty good at that now, but now you have to shift your focus and say, okay, how do I from a psychology standpoint, uh, connect with all of the players, even in some cases, the attorney that is cross examining me, you know, if I make it really hard for them to like, come for me with venom, right. Um, it takes two to tango. And so if I don't tango, you just look like the person that continues to come for me and I'm not engaged, you know, like I'm getting not getting ramped up. I'm not engaging with that. And it becomes a very interesting psychology, um, to the point that, you know, especially if anybody comes and, you know, the judge says the attorney's gone too far. Right. You know, I'm looking for those cues of the judge saying, ah, attorney you've, you've asked that to me. Like she's already dah, dah, move on, you know, cause then I can see, okay, I got, I, I, the judge is listening. Right. But also they may have be connecting with, uh, eh, in the communication. So are these the types of things that you come in and work with attorneys to kind of understand this process? You know, like how deep does this go? So I think that there's so many excellent points in what you just said regarding cross-examination and yes, that is part of my trial prep. Um, most often I find just as a practical matter, I am hired for deposition prep because that's, you know, there's going to be many more depositions than there are trials, but it is absolutely the same idea. And I love your technique. And just like you said, um, at first, when, when you do anything, it's very robotic, it's very robotic. You're trying to just kind of get those technicalities down and really kind of nail the process. But then after that science becomes more of an art and there's more of a finesse and there's more of a flare and you can really, um, understand, like you can understand if that attorney's going too far on cross, that the judge is going to step in and take your back. And we know the courtroom is a stage. The jurors are getting their cues from the judge. And they're saying, you know what? Like this, some attorney is going a little bit too crazy on this witness. They're going to hardcore on this witness that will create, um, a rapport with you. It may create, um, they, they may be bringing in their own personal biases, like, Hey, I was just mansplained the other day at work or, um, they may be bringing in their biases, but it is really important that you read the room and you recognize that. And you kind of know, like you said, it takes two to tango. You can go dancing by yourself with your key to cross examination. I'm just going to sit here and calmly coolly answer your question. So psychology is a huge part of that. Um, my prep is a huge part of that for depositions, um, less so for trial, just because there are so many more depositions than trial. And, um, I think you're absolutely spot on there. Well, and if we, if we go back just a little bit, because I agree, I think that, you know, you have to read the room, it is a performance. And I think that there is a fine line between, you know, being too humble and too arrogant, you know, like you have to come in with kind of this, this, I am the smartest person in the room about this, because that is why you're here as an expert, but that I'm not the smartest person in the room about everything, you know, so that I understand that like I'm here for this bubble, but not to go too far. Cause that's what, what happens. But if we go back to these cognitive biases, you know, um, I think the one area that we haven't totally talked about is what are some of the strategies to counterbalance them? You know, because it's not just biases that we're talking about the anchoring, it's the biases that we grow up from, you know, our background, our religion, our race, our, our, our experience in the world. Right. And, and things that trigger, um, memories that are conscious and unconscious, like what are some strategies that we can use to counterbalance those? Okay. So there are so many cognitive biases, both in life and both in litigation. And I know we touched upon anchoring. We touched upon confirmation bias. Some of the other biases, um, very prevalent in litigation would be exposure, bias, being exposed to something so much outcome bias, maybe letting, um, previous outcomes really affect our decision, making, things like that. So, um, again, like if you Google cognitive biases and come up with Wikipedia, you will come up with hundreds. But really the first step in combating and mitigating a cognitive bias is awareness. There has to be an awareness. And, um, you know, I can't ever tell a judge to be aware. I can't really tell a jury to be aware other than what is happening in for Deere, but attorneys who I work with, I can tell them to be aware and I can help them be aware of their biases, whether it's confirmation bias, whether it's outcome bias, whether it's, uh, totally, um, availability, bias, anchoring bias, there's so many. And once they're aware and they can really slow down that thinking process and kind of pay attention about how that bias is affecting their thought process, their decision-making, their analysis, whether it's analysis of the case and analysis of a witness and evaluation of something regarding the litigation, that's when they can make a difference. So really, I would say my general overall answer is to understand what a cognitive bias is, what each cognitive biases and be aware. And then when you're talking about a specific cognitive bias, sometimes if you're on a certain side, you're going to be able to exploit that and leverage it and use it to, um, win over your jurors. And sometimes if you're on the other side, you are going to need to realize what your adversaries doing and be able to have the tools to mitigate that. Oh my gosh, it's, it's like, you know, I've been doing this for 20 years and you're saying all these things, I'm like, I need to know more about that. I need to know, am I prepared? Am I not prepared? You know, like, um, the other, something that we've also been toying around with late lately, which has to do with this, but it's a little bit removed, but we, we can see what your opinion is, is a lot of, um, the communication, the words you use, the ways, you know, if they're really, um, a lot of times attorneys want to use very flagrant, um, words, you know, inflammatory words that instigate and get an emotion. And as an expert witness, we're usually trying to de emotion our words, right. And it, because even if it's in a report, you know, written words, um, spoken words, things like that, do you ever get into helping people kind of shift how they communicate, even in this space? This is my favorite question ever. Um, this is so good. And I can give you so much, but I won't like totally bore you to tears. Okay. Communication is everything in every aspect of litigation, mediation, the entire process. And like I said again in life, okay. So one example would be, I do a ton of depth prep, and I am prepping everyone from people who are completely unfamiliar with the system and intimidated and anxious, and just have all these feelings. Maybe they think they're going to lose their job. And then people on the other end of the spectrum, like expert witnesses like yourself, very sophisticated, um, you know, whether it's doctors, whether it is, um, accountants who are testifying about things, whether they're expert or whether they're fact witnesses. So you have to really, um, work with the language. Like for example, I was, um, preparing a doctor and the language that she was using was very clinical. And it was really kind of very cold and very distant and really, um, very not respectful of everything that plaintiff had been through. So we had to work on using, um, I can't give exact examples because, you know, it's, it's in case, but we had to work on using examples. And in contrast the same case, there was another witness, much less sophisticated. Um, no, no practice, uh, never, you know, just completely like new to the world. The legal system got kind of pulled into this case as a witness, but her language and her demeanor was so warm. She was referring to clink to find names. She was using very affectionate, appropriately affectionate terms, and right away, I knew she was going to be the better, a better witness. Who's going to need less work. So there you go. In the context of depositions, as far as trial, you see the same thing. You need to work on language with trial, work on communication, um, at trial, and really make sure that your witnesses are able to connect with the jurors and make sure that your lawyers are able to connect with the jurors. So there's plenty of that. As far as communication, there was one more point I wanted to make, but I completely forgot, but it was, it was a good one. So if I remember it, um, if I remember I'll just kind of blurt it out, they'll just communicate it out. But, um, yeah. Words are out. I remember, I hear, um, I remember I was just writing about this, so this is, um, why I should have remembered it, but there are rhetorical devices that lawyers can use and should learn to use whether it is, um, rule of three, whether it is of words, repetition of sentences, um, strategic pauses, like there's so many different rhetorical devices when you're storytelling that can be incorporated into their opening statements that can be incorporated into their direct, their cross, their summation. So it's really important to kind of get those storytelling, rhetorical devices to, um, make you the most effective advocate at trial. Well, and some of the things that I think we're taught is how to write and write beautifully, right? Which means big words and, and flowers and flavor. And then you're going into these situations and it's like, well, if you look at your assets and liabilities on your income statement or bill and sheet, and it's a snapshot in time and people are like, huh, if you say, well, it's about the money and stuff that you have, and it, and then all that debt or things that you owe and the, and then the difference is what you have leftover, right? Well, that's assets, liabilities, and equity essentially, but it's what somebody can understand. And I think it's like rewiring, you know, we are smart if we write with beautiful language, right. And then you go into court and you have to like really make it simple. The other thing is that when you're, I w I think when we're telling a story about numbers, when we're telling what the numbers say to us or the numbers tell a story, and we tell it, we also have to be like very mindful of logic. And, you know, I always say, I was like, okay, I like this way of presenting the numbers because it's logical. And the judge and jury are always going to resort to logic. You know, if you come in and say, this is a kind of kooky pencil, this pen is worth a million dollars. First of all, everybody is going to be like, how the heck is that possible? Like, is there a diamond up there? Is it made of gold? Does it unlock the white house? Like, what's the problem, but upfront it is not logical that a pen is a million dollars. And if I can't create the story that at the end, it makes logical sense. Everybody's going to be like, that pen is 2 99, you know? And so I think it's really interesting now, do you work with, uh, cause I think we should talk about some of the ways that you work with people, but like, let's say I come to you as an expert and I want to be better. Um, and maybe it's not a specific deposition or trial. Like, do you work with attorneys and experts to just get them better at their skills? Or is it always in the context of a case? Well, me personally, it's always been in the context of a case, but I think that's just kind of anecdotal and it's just kind of been my experience, I think. And again, it's one of those things, um, about maybe not wanting to invest the money, invest the time until, until there's a case until there's a lot at stake until we really need to prepare. But I think that's kind of, and it's not just a litigation thing. It's, it's really like in anything thing, there's so many important things that we all have to do in our lives, but kind of, it's kind of like you don't, um, I don't know, get the new, um, bedding or the new, um, whatever redecorate until, you know, you're having people over. Right. So like during, during COVID every, everything's a mess. It's okay. You don't have to have everything perfect. You're not entertaining. And then like all of a sudden when we're entertaining again, it's like, oh gosh, you know, I really need a new rug or I need a new coffee table or whatever it is. So to your question, um, as, as far as training, other than giving seminars or giving presentations or podcasts or things like that, I haven't really had the opportunity to work with someone who just wants to invest in those storytelling skills. It's, I mean, it's always been in conjunction with the litigation. Sure, sure. Well, and maybe then, um, just go ahead and give us some ideas of, you know, um, attorneys will have a situation. Um, and so kind of talk to us with attorneys and mediators, how they work with you. Um, you know, is it for an entire case and you're doing a lot of the strategy just in general or is it for specific and it's probably for both, but maybe give us some examples of how people have utilized your services in a, in a trial setting or, um, mediation. Sure. That's a great question. And it's, um, it's also one of my mantras because mock trials are one of the bigger services that I offer. And so many attorneys in so many people are under the impression, oh, a mock trials, a dry run, let's do a mock trial, pretty close to trial, but really a mock trials. It's a tool of leverage. I tell people, do your mock trial before your mediation, because then you're going to have an evaluation. You're going to either have a ton of leverage. You may want to bring that report. If you do have a ton of leverage. And if things don't go the way that you think they're going to go, you're going to at least have a ton of knowledge and information. And you're going to be able to bring that to have a fruitful, productive mediation. So one way, um, you know, and I, and I'm not saying that they're not some dry run, um, takeaways that you can get from a mock trial, but I look at a mock trial is a tool of evaluation. So I do mock trials. I do focus groups, focus groups are usually done a little bit earlier. Sometimes they're even done prediscovery and that's really to kind of tease out the themes of a case and to really get some community attitudes and see what people think. Sometimes we'll put a video of something of an accident or something in front of a group. Sometimes we will test out their feelings about, um, a bunch of different categories that may come up in the case and things like that. Um, I do a lot of preparation for depositions, which I, um, I think is the most important prep that you can do. Um, trial prep obviously very important too, but you want to make sure your witnesses go on the record and they're an asset to your case, and that they are increasing your leverage rather than having your leverage plummet. And the way to do that is to make sure they are prepared in their deposition. And depositions are often harder than trial for witnesses because depositions are cross examination in a vacuum. There is no time. There's no room to tell that story. Whereas a trial you'll get a nice setup from your attorney in openings, in direct examination, perhaps some priming in voir DIR to really set the scene before you undergo cross-examination. Whereas deposition, you're just being crossed from that first minute and you're getting evaluated. So I think my most important work, um, other than those exercises, um, focus groups and mocks are really the preparation of the witnesses. Uh, uh, I totally agree with you and as we've been in this pandemic and, um, even coming out of it and we're having online depositions, we're having video depositions, I'm having video depositions recorded, even if I'm like the plaintiff is recording it actively proactively, right. And doing a formal deposition to at least have video testimony and to move cases along, which I kind of thought was a really brilliant idea, but I, as I've been kind of teaching other experts, like how do you even go about this new world? I think it is almost imperative. And I have been suggesting that, you know, even if you've been doing this for 10 or 20 years, you need to go back to the prep, go back to the practicing with the attorney, which we would do when we were all right. When we were all like, I don't know, what are you doing? What are you doing? What's practice. Like, I don't know. You know, like in our bosses, wouldn't really know, you know, like I remember the partners would be like, yeah, you guys go practice together or whatever. But now I think that this false sense of security that we had when we showed up at the courthouse and we knew, you know, like there's a whole energy, there's a whole prep, there's a whole mentality. There's a focus. There's the, the, the, um, adrenaline, right. Well, now I'm wearing my suit with tennis shoes, walking into my office and I'm doing a zoom. And the reality is it's, it's not totally the right mindset. Right. It's, it's very different. And that's why you have, you know, an expert that I was telling the story earlier, but an expert that starts to address the judge in an informal way, right. That is absolutely inappropriate and absolutely wouldn't have happened in court. And so I've been, you know, saying, and I've even been encouraging my attorneys, like let's, let's practice a little bit. And they're like, you know what you're doing? And I was like, yeah, but when we layer in the technology, if we have a technology snafu it, then amps everybody up. And they're focused on the technology when you need to be focused on like you're testifying, you're questioning, you know, or we've had things where they ask a question and then the judge is like, I'm sorry, your video went out. Could you repeat that question? Or they say, can you repeat the question? Like, oh no, we just have somebody that's recording it, but nobody is actively dictating it. So we can't read back the question. I mean, everything under the sun, I had a computer crash in the middle of testimony. And so I think that the problem is we need to practice other things right during this time because litigation and mediation is not the same anymore. And so you might know how to do what you do, but do you have the layer of complexity that's happening with hybrid situations with video, with all of this that I think is different. So I think that you probably will see a lot more people doing the mock trials because you want to make sure everybody, you know, you're as good as your weakest link. You know, so if I have this brilliant, we had this situation where there was this brilliant guru and it was so awful because, because of the technology and this person, and like wrote the book for certain issues in their field, right. I mean, they are the person and yet the technology and the, the issues with that made them look not as great. So I think that if you continue in this space, you know, working with somebody like you and using your services is going to be paramount to being successful going forward. Um, and I don't know if you're seeing a lot of those technology issues, but, um, I do think, and I think what's interesting is some of the tech is going to be here to stay. I think there's going to be a lot of virtual mediations. I mean, look, I think everyone is dying to get back in a courtroom to try cases and not have to deal with all of the problems with virtual trials. But I think there's going to be a lot of, um, virtual depositions, a lot of virtual meetings, a lot of virtual mediations. And because this is a new medium and, you know, use this way, there, there are things to learn and there are things to prepare. And I remember when I was, I was actually a witness when I was working at a company and my testimony was going to be videotaped. And I had to practice how, I mean, that was a lot different than giving testimony that was not videotaped. So I think anytime something switches up, practice, practice, practice, and early on in the pandemic where there were still some cases being tried in person, I was actually talking to attorneys and I would give my clients advice about, I I'd say, you know what? You have to practice your summation in a mask. If you're going to be wearing a mask for, you know, however many hours, everything you do, you practice in a mask. If you're witnesses, testifying in a mask, you have to do that. If you're war during a socially distant jury, you better practice with that mask, have that stamina to be walking all over that courtroom because that's a lot more tiring than what you're used to do. And no one in law school taught you how to practice during a pandemic, wearing a mask, um, wore during a socially distant jury. So, um, yeah, absolutely practice for new, new and exciting conditions. But, um, uh, I'm hoping where we're coming out of that. But again, we're going to have some residual things that are going to remain hybrid are going to remain virtual well. And I think that the experts, you know, you, you have the capability now to have experts from a lot of different places because you would do it online, you know, and, and I think it's been okay doing a lot of it online. You know, a lot of people don't like the zoom trials for an expert. It's great because I did go to a real trial last week and I sat there for half the day. And then at the close to the end of the day, they said, guess what? We're not going to get to you today, but come back in September. So, and I was like, you know, and, and it was regardless of the fact that it was an hour away as well, um, that, you know, those types of things, I think from just an efficiency standpoint, it would've been great to just have me on call, ready to be on the video if you need me, but you didn't the you, you know, and so I think that some of the things we'll keep in some of the things will go away. Um, but it also is different for the attorneys and the experts. You know, the attorneys really are probably gonna go back to how things are done. The experts might have still more hybrid, so it'll be very interesting. Well, thank you, Sherry. This has been amazing. Do you have any last minute comments or anything that we should button it up or just call Sherry if you need some help? Cause we're all gonna need help during this time. Better, better call sharing, not Saul call Sherry though. I can't wait for my favorite show to get back, but, um, anyway, if you are looking to reach me to talk about anything we've discussed, um, the best place to catch me as LinkedIn, just send me a DM. I will write you back. I think that's how Melissa found me. And, um, I try to show up there every day with helpful, interesting content, make it exciting. So, um, you can catch me there and if you want to have a more in-depth discussion, send me a DM and I'd love to talk. Oh, that's right. Awesome.

Melissa Gragg: 54:44

Well, thanks Sherry. And I think, you know, they will reach out to you and we'll be posting this on LinkedIn and other places. So this is awesome. And, um, I'm sure we have plenty of new, uh, new other topics to talk about in the future. So

Speaker 3: 54:58

Yes, there are many cognitive biases and just not enough time, but I'll come back and talk about another one. That's awesome. Well, thank you so much. Thank you, Melissa.