Episode #71: Mental Health Awareness

May is Mental Health Awareness Month. Whitney Burkett, Associate Attorney with Anderson, Rasor & Partners, and CSI Litigation Consultant Dr. Alyssa Parker join Dr. Steve Wood to discuss mental health, and in particular the mental health of witnesses. Whitney and Alyssa discuss the importance of assessing the mental state of witnesses in advance of their preparation for testimony and understanding their overall mental health. Sometimes witnesses can be experiencing mental health stressors that go beyond the litigation which can impact their ability to avoid opposing counsel tricks and feel confident and calm for their deposition testimony. The group also talks about the importance of helping witnesses who are struggling with their mental state to understand that its okay to be having these stressful feelings and concerns and why discussing them will better prepare them for the battle of testimony. Dr. Parker provides an explanation of an amygdala hijack and the danger of the fight or flight response that is activated when the amygdala is hijacked due to emotion. Lastly, they discuss the impact of COVID on witnesses, how to prepare witnesses for virtual depositions, and the necessity of getting comfortable talking about witness’ emotional well-being and mental health.

Full Episode Transcript

[00:05] Steve Welcome to the Litigation Psychology Podcast brought to you by Courtroom Sciences Inc. I am Dr. Steve Wood and today we have an interesting topic. This is being recorded in May and as many of you may know, May is mental health month. We talked a little bit about mental health on the podcast, but I’m a strong proponent, as well as the others who are joining me today, about talking about mental health, getting out there and really changing the, the idea that mental health is something that’s taboo and shouldn’t be talked about. So with me to talk to me about that is attorney Whitney Burkett. Whitney, how are you?

[00:38] Whitney Doing well, how are you Steve? Thank you.

[00:40] Steve Excellent, thanks for joining the podcast. Also with us is Dr. Alyssa Parker. She’s back again, haven’t been here for a while but good to see you again Alyssa. How are you?

[00:49] Alyssa Thanks Steve, I’m doing well. Excited to talk about this today.

[00:53] Steve Great. And before I start I just want to give a brief introduction to each one of you. You know Dr. Parker, she is a, she has a doctorate in clinical psychology and most of her work tends to be working with witnesses, working through and training them on how to be effective witnesses, and a lot of that has to deal with addressing their mental health and addressing how they feel. Um, Whitney, could you spend a little bit of time talking about kind of what your philosophy, your approach to mental health and how it is that, you know, you train witnesses?

[1:23] Whitney For someone who has done a lot of catastrophic injury and medical malpractice litigation, which is where my practice focuses, these people are having the absolute worst time of their lives professionally and you are seeing them in bite-sized doses. So I think that it’s incredibly important to address their mental health from a non-psychological perspective so that they feel like they’re on a team, so that they feel like they have someone that is experiencing it with them. It makes them a better witness. It makes them more honest with you, which is what we all as litigators tell our clients: if you be honest with me, we can handle anything. And then no one can fully do that because they’re human. But if you, so to me, addressing their mental health concerns helps you gain their trust and gain their respect, and that makes them a better witness.

[2:13] Steve Excellent. And Alyssa, I want to start with you and just kind of have you talk a little bit about what the experience is like for witnesses from more of a personal, professional, and even litigation perspective as they go into litigation.

[2:26] Alyssa So, um, I’m just gonna back up slightly and talk about mental health in general for a moment. Um, I think when you think mental health, you automatically think bad. And the truth is that mental health can fall on the spectrum. You can have very good mental health, you can have kind of moderate mental health, or you can have poor mental health. Um, the issue and I think why this is so important, especially within the context of litigation, would be that even mild symptoms of poor mental health can have a really large impact, um, on your witness and on their functioning in general.

So I think oftentimes when we approach a witness and we want to discuss mental health, um, we think about it from the perspective of litigation, the litigation itself. So how are they feeling about the case? What are their thoughts about the case? How are they feeling about the fact that they’re about to get deposed or testify at trial? And really it’s so much more than that. Um, there are so many aspects outside of the litigation itself, including in the witnesses’ personal life, that can have a huge impact on their ability to testify and on their ability to receive information. And what I mean by that is that if mental health is not assessed for and addressed prior to you even beginning preparation, um, sessions, it will be difficult for your witness to truly, um, buy into and remember everything that you’ve discussed, what the game plan is and so on. Um, and then when they’re actually testifying, if their emotion has not been properly addressed and assessed then, um, the risk of having an amygdala hijack, which is kind of that survival instinct taking over—that fight or flight instinct when you’re testifying—increases dramatically.

[4:18] Steve Excellent. Um, Whitney, what do you think? What has been your experiences as far as working with witnesses and how they address it from their personal professional life?

[4:27] Whitney Yeah, I think, um, I’m thinking of one clear example that this doctor was, he’s an incredible neurosurgeon, but his experience, um, in this one case was so bad and he felt so guilty. And the guilt, that that never got addressed during his deposition progress and his preparation, was something that as an excess attorney at the time coming in later, having to untangle that when he’s already given a deposition and now trying to teach him how to undo that was incredibly difficult. And it made me feel, i mean it was so stunning to me how quickly such a decorated surgeon felt like nothing, felt like the dumbest person in his profession. And because what we as lawyers I think forget is that we fight all day. This is our job. These witnesses don’t, that’s not where they live. And one of the things that I think to Alyssa’s point about addressing their overall mental health, putting them in that, allowing them the space, I think, to be able to fight and teaching them how gives them a tool and a skill set instead of giving them a script. I think so many attorneys are guilty of trying to give someone a script, and the script doesn’t work because it doesn’t actually address these mental health concerns—this fear and the guilts and the things like that that some of these witnesses feel because they’re human and somebody got hurt and they understand that, you know.

[5:58] Steve Yeah, I think that’s a good point. And, and Alyssa brought up another good point as well when we talk about about mental health being taboo and people not wanting to talk about it. But the fact of the matter is we all know, whether we struggle with mental health ourselves or we know people personally who struggle with mental health, I think a lot of people know people that have it whether they talk about it. And I think the more and more that people actually, you know, accept the fact that this is an issue and this is something that needs to be addressed is when you’re going to get some progress rather than having it hide in the shadows and having it be viewed as something that shouldn’t be talked about or you’re weak if you go and get testimony or if you go and get help from a doctor or testimony help from…

[6:42] Whitney Yeah, right. No, I absolutely agree, Steve. I think it’s one of the key things. I think it’s something that people don’t tell witnesses enough, that it’s okay to be having these reactions. We’d rather you have them here in an office with me or with a Dr. Parker or with you, you know. That’s where we’d rather you have them because we can actually explore them and untangle them and help, as opposed to in the middle of your deposition when you’re under fire.

[7:07] Steve Alyssa, well how have you found that witnesses take to that when you spend a little bit of time with them ahead of time to really dive in deep and get an understanding to their psychological issues that they’re dealing with, or the stress or the mental health problems that they’re dealing with? How have you seen them react to you? Have you found it to be beneficial and that you gain best, essentially, credibility with them?

[7:29] Alyssa I think the number one way that I would describe it is I see a lot of relief. Um, for so many of these witnesses they’ve been feeling kind of isolated and on an island. I mean oftentimes, you know, they’re told by their attorneys “don’t talk about this case with anyone outside” and so on and so forth, which means they’re, they’re truly feeling like they’re experiencing this all by themselves. And the other thing is I feel a lot of witnesses, um, have trouble even identifying exactly how they feel. Um, I can’t tell you how often I start off asking questions and witnesses will make comments like “oh I’m fine, it’s not a big deal, this is not impacting me in the slightest bit.” And as you talk more and ask kind of the right questions, that’s not true at all. This is causing sleeplessness, this is causing, um, problems at home into some capacity or just general anxiety about what it means for them, what it means for their future and so on. Um, so I would say that relief is the number one thing. And I would also say that it goes a very, very long way with regards to that relationship building which I think we all know is so incredibly important when working with your witness.

[8:43] Steve Excellent. And Whitney, what have you found as far as mental health as it relates to—we’ve talked a little bit about, you know, just the general idea of setting them up for giving their deposition—but what have you seen as far as if those mental health issues aren’t addressed or if they are addressed, as far as how it relates to their actual deposition testimony?

[9:03] Whitney Yeah, I think that one of the big things that we see in witnesses who just are, and the short phrase that I don’t love but the “in your head” idea, witnesses that sort of live in that “in their head.” Um, what happens is that they give these, number one on a very physical identifiable sort of level, they give these very long-winded answers because they are themselves searching for an explanation, and oftentimes not for the question—they’re looking to explain it to themselves because of these feelings of guilt and needing relief that Alyssa just talked about. I think the other thing that you get is either really hostile witnesses on one end of the spectrum or really, really docile witnesses to the point that they can be pushed around so bad that they don’t, they can’t judge what’s happening to them. You know, the, the mentality, I think witnesses are very, very, um, easily swayed by the mentality of “if I just answer everything the way the person wants to hear it, it’ll be over sooner.” So one of the things as a litigator I tell people from a mental health context is: nothing about this is fun and I’m not here to tell you it is. Nothing about this, you can’t, nothing about this is going to be easy or simple. But if you embrace that, if you just lean into it and understand that that this is going to be a marathon not a sprint, then all of a sudden that witness really can come alive and I think you see them then do really well and not use seven words when four will do. And all those kind of hallmarks of good testimony come from within them naturally a lot more because you have shored up and addressed those emotionality and those mental health issues on the front end. I think it’s imperative.

[10:51] Steve Yeah, I think, I think that’s a good point. I think Alyssa, you brought up something as well when you talked about amygdala hijack and I just wanted to touch a little bit more on that. About, you know, just explain a little bit more for the viewers who may or may not be familiar with that concept. Essentially how this, as Whitney just said, a catharsis is not the deposition—that’s not the time for that to happen and just, you know, spill your guts on the table. It’s not the time to happen in the deposition. But if you can talk a little bit more about amygdala hijack: what it is, what it means, and then essentially how if you’re not attending to your mental health, how could this become problematic in a deposition?

[11:26] Alyssa Yeah, and and for sure going along with what Whitney said: if, if emotion is not addressed by your witness prior to the deposition, it’s coming out in your deposition. Um, so amygdala hijack is in essence, when your witness is calm, when your witness is rational, listening carefully, thinking before they speak, they’re using their prefrontal cortex which is responsible for logic, judgment, decision making. Um, I joke if, if anyone watching this has teenagers, it’s the part of the brain that hasn’t developed yet which is why they made such a bad decision.

[12:01] Steve Is that why my kids do what they do? [Laughter]

[12:06] Alyssa But when your witness starts to become very emotional, they literally start using a different area of their brain. The amygdala is housed in that area and generally the amygdala should be sending a message to that prefrontal cortex saying “hey, there’s a threat here, I’ve received a threat of some type, how should I react?” When there’s an amygdala hijack, that circuitry gets cut off. Um, so your amygdala starts responding and you have kind of a lower level cognitive response where you are again having that survival instinct. And for a witness, that would be the fight or flight response which is in essence, um, what Whitney was talking about where you have a very hostile witness or a very docile witness. Um, they’ve even either given up or they’re trying to fight back and obviously neither is going to work when it comes to testimony.

[12:57] Steve Right. I think the other thing to piggyback off of that is you leave yourself open, right, for opposing counsel to essentially cause you to have an amygdala hijack if you haven’t addressed it, just by their own behaviors about making you defensive or pushing back or doing things in such a way to make you go “uh oh, this sounds bad, I need to fix it,” right? And essentially use your own emotions against you. I think that’s why it becomes important like you’d said at the very beginning is to address all of these to make sure not only do you not do that during the deposition, but you also defend against that and make yourself really impervious to opposing counsel’s tactics of trying to get you to engage into that.

[13:36] Whitney Yeah, I think Steve, I was going to say Steve, that’s one of the great points. One of the things that, um, after having worked with you guys especially Alyssa over many years, one of the things that I’ve learned from you is one of the things I tell witnesses is: let me react. Let me be the emotion in the room. Let me take it on because again now you’ve built up an opportunity for this witness to go “oh, someone else can do this part, this is a thing I don’t have to do now.” Then they get the satisfaction of watching someone get upset when they are being attacked, you know what I mean? It sort of serves a two-fold purpose and I think that’s one of the things that a lot of witnesses can really respond to because it’s something you’re not taking a burden off them in terms of that mental health piece to really help them.

[14:22] Steve Very good point. And I think, you know, one of the things too that complicates this matter is that now obviously we’re hopefully on the downslide of COVID. But I mean, and COVID is a very real thing obviously from both a personal and societal perspective, but it’s also a very real thing as far as mental health and how it’s affected, impacted mental health. What have you noticed, Whitney, from witnesses from when they were pre to now post-COVID as far as their reactions, their mental health, their emotionality?

[14:53] Whitney Yeah, so I think it’s really interesting. I think a lot of people when you were as witnesses, when you were bringing them to your office and they were getting calls from an attorney, right? That’s gonna sort of already push them into sort of a defensive place. Now what happens is they’re at home, so they’re having a defensive reaction but they’re not in the room with you and you can’t read them as well. You can’t, you can’t sort of fence them in and help them the same way that you can, you could in a pre-COVID era. Um, so I think that in and of itself though, I think what I’m noticing from the mental health of witnesses in general, there’s more room for them to be defensive, there’s more room for them to be, to not address those mental health things because they’re sitting, you know, they’re doing their deposition of their kitchen table. There’s no one in the room with them and they don’t feel it. So I think it’s, that’s really the biggest thing I’ve noticed is that witnesses are a little more overall defensive. You can’t knock them out of that as, as well.

[15:53] Steve That’s a good point. I think was one of the biggest things and at least, I think Alyssa would agree, is that you know when we do witness trainings it makes a lot more difficult to do it over Zoom, right? Because we can’t engage the behaviors and get that personal connection with the witnesses that we normally could. And I think you bring up a very, very excellent point about the idea that when these depositions are being done in the individual’s home, it’s really for lack of a better—they’re just less on edge. And that makes, may make them feel more comfortable when they’re giving their deposition. The problem is once they feel more comfortable, they tend to feel like they would make the mistakes that they wouldn’t make had they be sitting in the room, you know, at the deposition like they normally would. Is that what you found Alyssa?

[16:39] Alyssa Yeah, and you know one suggestion that I would make—and of course this varies from state to state depending on what guidelines and restrictions are in that particular state—but if possible, even if the deposition is being taken virtually, I generally recommend that the witness still tries to meet in their attorney’s office for the deposition for exactly what you’re talking about. Um, mental health in general as a result of COVID has been a massive issue. There’s been a significant amount of research done on this already but there has been a huge spike in symptoms of depression and anxiety. And for some people these are just symptoms, for other people I mean they’ve reached a diagnosable state. Um, on top of this, access to mental health has also changed during this time. There was a lot of clinicians that for a long time were not accepting new patients. Many clinicians have only been doing teletherapy sessions versus in-person sessions and so on. So people who were experiencing worsening symptoms or symptoms for the first time didn’t even have a way to get help to some degree when they needed it most. And I think where this becomes especially important and it goes along with that defensiveness that Whitney was just discussing would be that if you are already experiencing symptoms of anxiety or depression, when you experience a stressor of any type, you’re going to have a much larger emotional reaction to it than you would if you were not experiencing those pre-existing symptoms in the first place. Um, so what we’re seeing are much bigger reactions in witnesses when they feel threatened or they feel defensive or they feel uncomfortable. That’s always been an issue, but I think that it’s heightened now as a result of COVID.

[18:28] Steve Good. So Whitney then, you know what are your thoughts then as far as how we should go in the future as far as addressing mental health, as far as helping witnesses, you know, with these issues and help them to be more prepared for their depositions?

[18:45] Whitney Yeah, I think one of the big things to me, and I think it’s whether you’re in the room or not, because the COVID deposition is not go, you know, depositions on Zoom aren’t going anywhere. There are plenty of us who have clients who are saying “wait a minute, you can spend less, less of our money.” There, you know, there are other things not just related to COVID that are going to keep these around. So I think one of the things—I was an athlete growing up—so one of the things that kind of comes to mind for me is a “practice like you play.” Every time I meet with a witness, if I know that deposition is going on Zoom, I meet with that witness on Zoom. From the minute I get the complaint from that first phone call I say “nope, we’re gonna set up the Zoom, we’re gonna be on camera because then they’re used to being on camera.” The first time they call in a lot of times, you know, they’re on a phone, they’re in a busy office and I’ll go “okay, so all of this is fine when it’s just you and me talking, but none of it is fine for that.” And you start talking to them about it right then. Because I think that when you’re in a room with someone, you can build a relationship a lot quicker. So you have to start contacting them earlier and you have to start doing it in the method that they’re going to be deposed or otherwise testify because you practice like you play, you know. And I think the other kind of big thing that I see is it’s a lot harder as an attorney to assure a witness that you’re there to help, that you’re on the same team when you’re just a box on a screen, you know. So to Alyssa’s point earlier I say “look, we’re going to meet like this most of the time. If you are not comfortable, if you want to be in a room with me, if you want then we’re going to do it that way” and reassure them that this isn’t the only way. Tell them the reason behind your preparation. I think, I think that’s one of the mistakes that we see a lot of attorneys make is that for us this is a routine thing, so we just go through motions. Well it’s not for them, and if we don’t treat that—if we treat them like it’s routine—it will shut a witness down faster than almost anything you do.

[20:44] Steve Yeah, I think that’s a good point and you talk about essentially it’s building rapport with the witnesses. Because you know you don’t a lot of times when they meet you for the first time, right, they don’t really know how to feel about you. They don’t know whether you have their back, whether you know really you’re just like they’re just another number to you, right? Just another witness that actually has to be defended. I think it’s a good point to bring up that more human fact to understand, and this goes back to to Alyssa’s initial point about walking through and really basically spending the time to show that you care for them and about their mental health. And it’s not just a “we’re just here to make you better so that you don’t step in it and cause problems for the company, we don’t really care about you as a human being.” We care more—yeah. Alyssa, what else do you kind of your thoughts? You know, you have a different perspective, especially with your background and your training as far as how to address witnesses. What are your thoughts about how we should go forward in helping these witnesses?

[21:33] Alyssa So I absolutely think that relationship building is still possible even when this is done virtually. Um, I agree with Whitney: what that means is that means more touches are needed. Um, you need to be reaching out a little bit more often even if it’s for very brief check-ins. Um, and at other times, um, being spending a little bit more time and discussing things that are not necessarily just related to the case. Um, I mean that’s relationship building just in general—is um asking questions, getting to know the person some, talking in general. If you’re focused only on the case or this is being done at the last minute right before a deposition or right before trial testimony, it it really is not as effective. The other thing is getting comfortable talking about this. Um, this goes along what we’ve said a couple times now already. Um, and I know, uh, Whitney you and I have chatted: the word “mental health” doesn’t need to be used when you’re discussing this with your witness. I mean there’s a lot of kind of emotional well-being and just general check-ins. And and the other part is knowing the right questions to ask. Um, and if you’re an attorney and you’re doing some assessment and you’re thinking “wow this is bad” or “this is concerning,” know when to bring some outside help in as well.

[22:56] Steve Excellent point, yeah. Um, so like I said this, this is obviously an important issue to all of us on the thing, so I appreciate you guys coming on and talking to us about it. And like I said, hopefully and going forward in the future, you know those who are listening and those who are on this podcast can actually, you know, do some good as far as alleviating some of these concerns and helping witnesses get back to a place where they’re healthy, comfortable, and feeling good about themselves as opposed to anxious and scared and, you know, uptight and about all the different issues not only just with their litigation and their deposition but just life issues in general. Whitney, if people want to get a hold of you, how do they get a hold of you? What, what’s your contact information for them?

[23:38] Whitney So I work at Anderson, Rasor & Partners here in Chicago. Our phone number is 312-673-7800 and our website, it’s long, but it’s arandpartners.com. So you can find all sorts of information about us there. Um, Steve, Alyssa, thank you so much for allowing me to come on and talk to you guys about this. It’s been great.

[24:01] Steve Yeah, it was, it was a great conversation. How about you Alyssa? If anybody needs to get a hold of you, ask questions about witness training, about the psychology of witnesses, how do they get ahold of you?

[24:11] Alyssa Um, they can go to our website courtroom—at courtroomsciences.com—and also my email is aparker@courtroomsciences.com. It’s a great way to get a hold of me at any time as well.

[24:23] Steve Great, I think you brought up a good point as well. Courtroomsciences.com, we have a lot of blogs, podcast, other podcasts on there. A lot of good material for attorneys, for clients to go and check that out. If you need anything from me, I can be contacted at swood@courtroomsciences.com. I want to thank everyone for tuning in. This has been another edition of the litigation psychology podcast brought to you by Courtroom Sciences Inc. Goodbye.