Mental health, witnesses, and litigation
The Covid-19 pandemic has been responsible for a high level of stress, anxiety, fear, and concern for everyone. The pressure on individual’s mental health can’t be overstated. To rapidly monitor recent changes in mental health since the start of the pandemic, the National Center for Health Statistics (NCHS) partnered with the U.S. Census Bureau starting in April of 2020 on an experimental data system called the Household Pulse Survey. NCHS included questions to obtain information on the frequency of anxiety and depression symptoms. Estimates on this page are derived from the Household Pulse Survey and show the percentage of adults who report symptoms of anxiety or depression that have been shown to be associated with diagnoses of generalized anxiety disorder or major depressive disorder. Mental health has historically carried a stigma that influenced how much, or how openly, people would speak about it. The pandemic has made many realize that mental health is something that must be addressed and discussed candidly and sincerely in order to provide relief to the many who are suffering during these challenging times. With that goal in mind, I’d like to introduce a few topics on the subject of mental health and litigation.
Let’s start by defining mental health. At the most basic level mental health is your well-being. You can have good mental health or poor mental health. For the purposes of this discussion, we will be focusing on poor mental health, which typically includes some pre-existing emotion that is negatively affecting well-being or daily functioning in some capacity. Poor mental health exists on a continuum of mild to severe, but even mild can be quite disruptive or impactful to an individual.
The coronavirus pandemic has created a shift in the world of poor mental health, and it has gotten significantly worse. For many, it has exacerbated pre-existing symptoms while others are experiencing symptoms for the first time. This is not surprising given the amount of stress, fatigue, isolation, and trauma almost everyone has experienced to some degree. The pandemic has also created a more polarizing climate in general, which produces even more potential strain as individuals attempt to navigate, decipher, understand, and respond to the polarization. Furthermore, access to mental health care has deteriorated. In many locations, telehealth sessions are all that are offered, and a large number of practitioners are not accepting new clients during a time when needing help is at a premium. According to a recent article in The New York Times, practitioners who are accepting new clients are overbooked and having difficulty keeping up with demand. It is important to note that a lot of people who are experiencing clinical depression and anxiety are not even aware of it – they tend to blame it on stress or lack of sleep or simply can’t figure out why they can’t “just snap out of it.”
Mental health and litigation
When it comes to mental health in the context of litigation, there are some additional challenges that need to be considered. The first to think about are your witnesses. Mental health issues may be impacting one or more of your key witnesses in multiple ways. It would be easy to simply focus on their well-being within the context of the case or the litigation process itself. Unfortunately, that is simply not enough. It is imperative that attorneys dig deeper to inquire about how the witness is doing within their personal life.
Let me share an example, based on real-life situation. A truck driver is fired after an accident. He feels his firing was unfair and becomes depressed following his termination. His depression worsens significantly over a period of time, causing him to have trouble keeping a job, negatively impacting his relationships and ending his marriage. Ultimately, the trucking company gets sued for the accident. Let’s be honest; the former driver does not care about this case or about the litigation at all. He may or may not feel stressed, anxious, or depressed about testifying but he is very mad at the company he used to work for and as it turns out, he blames them for everything that has gone wrong in his life since then. Furthermore, he views the defense attorneys as an extension of the company. This angry and depressed lens will color every single answer he gives in his deposition if his mental state is not fully assessed and addressed before he testifies. Although this may appear to be an extreme example, I can assure you that the witnesses I work with consistently demonstrate a range of emotions and mental stress that directly impact their ability to provide testimony in a productive fashion.
Which brings us to the next challenge: once you determine there is a mental health issue, it has to be addressed. And it must be addressed before you begin reviewing case facts or preparing the witness in any capacity because any preparation you do prior to addressing emotion is significantly less effective. Therefore, it is vital to assess, identify, and manage the emotional and mental health issues that are uncovered in advance of any preparation related to the case or deposition.
This then begs the question: how should attorneys approach the topic of mental health with their witnesses? Well, first of all, it is not the attorney’s responsibility to be diagnosing anyone’s mental health. The first step is to simply be aware of the presence of emotions that may be impacting a witness’ ability to testify effectively. Second, attorneys should try to get comfortable asking questions and talking about it. If a witness is unable to effectively express his or her emotions, whether the issues are related to their personal life or the case itself, I can absolutely guarantee the emotion will come out either in deposition or on the stand and it will not work in your favor. If you aren’t comfortable discussing emotion – and most people are not - bring in outside assistance.
When I am brought in on a case, some of the steps I take in evaluating the mental state of a witness are to ask the right questions and then observe the witness in terms of how they are responding to the questions, including their body language. Their nonverbal behaviors often tell me more than their words and with my training, I am able to decipher even subtle clues that give me insight into the mental state of the witness. Once I have a sense for their mental state, it is important to give the witness feedback to confirm what you suspect is going on but also to have the witness become more comfortable with acknowledging the emotion. These can be difficult and challenging conversations and require a delicate but firm approach to ensure we are getting to the heart of the matter. It is important to not just talk with the witness about their emotions but to identify the source of the emotion. For example, an angry physician witness could actually be experiencing anxiety about what a bad outcome in the lawsuit will do to his or her ability to practice medicine (“Will I lose my license?”) or the financial health of his or her family (“Will we go broke?”). The way he or she may be dealing with this anxiety is by externalizing and being angry at the plaintiff or the presence of the lawsuit itself, resulting in annoyed, indignant, or irritated responses, none of which help them or your case.
It is also important to note that witnesses who are experiencing mental health issues are significantly more likely to be susceptible to falling for plaintiff attorney tactics, such as Reptile theory, and are more likely to experience an amygdala hijack. They are also less likely to remember and integrate any preparation done prior their deposition or trial testimony, making the time and effort the attorney puts in beforehand limited or even useless. Given the importance of deposition testimony, a good case for the defense can quickly go south while a bad case can result in a nuclear verdict as a result of mental health issues.
Mental health was a challenge before the Coronavirus pandemic and has only gotten worse since. Poor deposition testimony can drastically increase the cost of litigation and settlement value and is also the top cause of adverse trial verdicts with high damage awards, so the stakes couldn’t be higher. Ensuring that the mental state of your witnesses is considered before any deposition preparation begins is critical to case outcomes. With the proper assessment, remediation, and training in advance of witness deposition testimony, even witnesses suffering from mental health issues can be better prepared to deliver effective testimony that won’t devastate your case.
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