Risks of Cognitive Fatigue to Consider During Witness Preparation

CSI - Courtroom Sciences Inc.

To avoid nuclear settlements, litigation teams need to place a higher priority on a strong deposition performance during witness preparation. One of the major contributors to poor deposition performance is cognitive fatigue. 

While it’s fairly easy to spot physical fatigue, where a witness may begin to lean back, slouch, or place their head in their hands, it may be more difficult to identify cognitive fatigue. However, cognitive fatigue in witnesses can result in decreased alertness and a failure to maintain the attention necessary in order to respond to questions in an optimal manner, and it can set in much sooner than presumed.  

If you’re still following the philosophy of taking a break every hour, the reality is that approach could be culminating in additional witness mistakes and the possibility of nuclear settlements. Don’t let ineffective witness testimony due to cognitive fatigue end up costing you and your client. Instead, learn to understand the causes of cognitive fatigue and how it can be prevented from the beginning. 

                    How can cognitive fatigue increase the risk of a nuclear settlement?
                    Cognitive fatigue may cause witnesses to make mistakes or deliver poor deposition testimony. Weak or                                                   ineffective testimony during depositions may result in higher payouts during settlement negotiations.                                                      To help witnesses avoid making critical errors, and keep settlements low, legal teams must remain aware                                                     of cognitive fatigue during witness preparation and deposition testimony.

Nuclear Settlements are Primarily Caused by Poor Witness Performance 

As nuclear verdicts are awarded in unprecedented numbers, many organizations may feel increasing pressure to avoid the courtroom at all costs. Yet, higher settlements, particularly nuclear settlements, are also a growing problem for defendants and insurance companies. 

Witness performance during a deposition is often the most important factor in its outcome. Ineffective witness testimony at deposition has several causes; witnesses may become confused, anxious, flustered, or unpredictable, particularly when subjected to plaintiff Reptile attacks. Witnesses may feel a heavy burden attached to their testimony, causing them to experience underlying stress as they anticipate their deposition and testimony.

Ineffective Witness Testimony is Often Caused by Cognitive Fatigue 

While ineffective witness testimony at a deposition can have several causes, one that doesn’t get enough attention is cognitive fatigue. According to the American Psychological Association, this type of mental fatigue can happen to anyone who experiences continual exposure to stressful situations and mentally demanding tasks, such as a witness preparing for a deposition or trial. 

The National Institutes of Health reports that cognitive fatigue leads to a decrease in alertness, causing difficulty concentrating and making it so that even simple tasks seem more difficult. When a witness is answering questions, they are performing many cognitive tasks at the same time (recalling events, reviewing documents, and answering questions.) Because oftentimes depositions can last for extended periods, the cumulative length of these events requires additional mental exertion. 

Cognitive Fatigue Sets in Earlier Than Previously Assumed

When witnesses are struggling with cognitive fatigue, they may have more difficulty understanding questions, staying focused, and behaving appropriately, leading them to make potentially costly mistakes. Simply put, a witness who is dealing with cognitive fatigue is at a greater risk of making more mistakes.

With this in mind, it becomes clear why preventing cognitive fatigue during deposition should be a top priority for litigation teams and a critical step in ensuring a positive outcome. While it has been standard practice to have witnesses take a break every hour during deposition, this timing may be unnecessarily harmful as cognitive fatigue sets in well before the one-hour mark. In a study by the National Center for Biotechnology Information, it was shown that cognitive fatigue can begin to set in at around 35 minutes for relatively healthy adults. Meaning every minute after that increases the risk of ineffective testimony or errors from the witness. 

Steps to Avoid Cognitive Fatigue in Witness Preparation 

In order to mitigate risks, see the best possible outcomes, and avoid nuclear settlements, legal teams must be aware of cognitive fatigue during their witness preparation. It’s imperative to take preventative measures to avoid cognitive failure and keep witnesses calm, credible, and fully prepared for testimony. 

Insufficient breaks can prove to be detrimental, which means taking properly timed breaks should be a primary solution for avoiding cognitive fatigue. Courtroom Sciences recommends providing a witness with a break every 45 minutes. This will both protect a witness’ cognitive abilities and optimize their deposition performance.

In addition to break frequency, break length also needs to be evaluated. A 10-minute break, where the witness fully detaches from the deposition environment, is a sufficient length for it to be a true break and for the witness to feel replenished. Ideally, during this time, a witness would have an opportunity for a change in environment, leaving the conference room or office, and perhaps even going outside. This break should not be used as a coaching period as that will not allow the witness to truly disengage from the activity of the previous 45 minutes.

Effective witnesses are those who can remain polite, patient, and engaged, and their deposition performance is often critical to a positive and economically advantageous outcome. Yet, in less than an hour, witnesses can quickly find themselves struggling with cognitive fatigue and delivering poor deposition testimony. 

Courtroom Sciences can help assist litigation teams prevent nuclear settlements through focused witness effectiveness training. These training sessions empower witnesses to avoid cognitive, behavioral, and emotional issues that can lead to damaging testimony.  Speak with one of our experts to get started. 

Key Takeaways

●  Continual exposure to stressful situations and mentally demanding tasks can culminate in cognitive fatigue.
●  Cognitive fatigue can begin to set in as little as 35 minutes for relatively healthy adults.
●  Cognitive fatigue in witnesses can result in a greater potential for mistakes and the possibility of a nuclear settlement.
●  Taking a break every hour is not sufficient for warding off cognitive fatigue. 
●  CSI can help litigation teams take steps to avoid cognitive fatigue during witness preparation.

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