Episode #249 – Triggering Fight or Flight in the Plaintiff

Dr. Bill Kanasky, Jr. talks about the psychological concept of amygdala hijack, which is the fight or flight reaction, and whether to induce amygdala hijack in the plaintiff or plaintiff’s expert at deposition. Bill discusses the considerations and situations in which defense counsel should and should not employ this approach and some ideas on how and when to do so:

1) Start the deposition with a surprise such as asking about a sensitive aspect of the case and apply pressure, something that you might have originally planned to do later in the deposition. This can induce a fight or flight reaction. 

2) Properly use verbal and non-verbal emotion such as tone of voice, smirks, eye rolls, etc. when not getting the answer you want and then repeating questions. Amygdala hijack (fight or flight) is a neurochemical reaction that lasts inside the witness’s system for 3-5 hours and gives you a distinct advantage. 

3) Use your best exhibits early and don’t wait until later in the deposition.

Full Episode Transcript

[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences. I am Dr. Bill Kanasky. Another solo podcast today, and I got an interesting viewer mail question here from a defense attorney. Said, “I read your article on amygdala hijack.” How—and we all know amygdala hijack, in other words, witnesses going into fight-or-flight response patterns because they’ve been threatened by plaintiff’s counsel, then your witness loses their mind. Okay, their brain starts massively secreting cortisol, which goes down to the adrenal glands on top of your kidneys. Kidneys, adrenal glands on top of your kidneys release adrenaline, and then your witness is either going to fight or run, and they’re going to do it with their mouth and say stupid, crazy things that’s gonna hurt your case. So, the neuropsychology term for that’s amygdala hijack. We want to avoid that, yes.

So, his, uh, his question is, uh, how can I induce amygdala hijack in the plaintiff or the plaintiff expert? Oh, whoa. Wow, that’s a ballsy question. So, can—so if you’re defense counsel, right? Because you know, obviously, you’re—your key fact witnesses, maybe your safety director, your corporate rep for sure, uh, they’re going to come under attack during a deposition testimony. But can you do it to the other side? And the answer is yes, you can. This is gonna be a controversial podcast. Uh, should you, I guess, is, is, is the question. I mean, obviously, if you’re deposing a very sympathetic plaintiff, um, that may not be such a good idea. Um, it’s not going to be a good idea at all. It’s going to backfire. It’s going to blow up your face and, um, you’re going to look like a jerk and it’s just—it’s—it’s not gonna, it’s not going to help your case.

However, there are some plaintiffs, um, that fully deserve this, um, and maybe, uh, an expert witness or two that the plaintiff has hired. Uh, for them to go into amygdala hijack would certainly help your case. For the plaintiff to go into a amygdala hijack, uh, the—the unsympathetic plaintiff would certainly help your case as defense counsel. Um, so how do you do that? Well, there’s a couple of different ways that you can do this, and I’m going to cover those with you today.

[03:16] Bill Number one—and, and this is a, and again, this kind of works, uh, both ways—is starting the deposit—let’s just take a step back. Your brain is wired, okay, to deal with threats and surprises by activating that amygdala to protect itself. So that’s what we’re trying to, um, accomplish here. So how do we accomplish that? Uh, if you defense counsel are taking the deposition of someone that you want to put into amygdala hijack, uh, number one is start the deposition in a surprise fashion. Okay? Do not—and I trust me, I train my witnesses to expect all kinds of different curveballs, uh, in the first inning, not the fifth inning or the sixth inning. Sometimes those curveballs come in the—in the first inning, right? Or—or the other things, the other team is gonna throw deep on their first possession. You gotta be ready for that stuff. A few witnesses are ready for that. Um, and so to start the deposition in a surprise spot, meaning do not start the deposition, particularly like that first 30 to 45 minutes, with simple, non-threatening background questions, because that’s exactly what the witness has been prepared for. Okay?

The—they have sat down with plaintiff’s counsel, and they have probably been told, just like you tell your witnesses (which is wrong), is, “Hey, most deps start like this. They’re going to go through your background, you know, your work history, stuff like that.” Do not start there. Get a sensitive issue—a sensitive part of the case—and you put that right up front and you hammer away in a respectful way, by the way. I’m not saying be disrespectful. I’m saying be aggressive. Those aggressive questions that you planned on asking in hour two or three or four, move that right to the front. And this is the equivalent—uh, yeah, you hear, you watch these sports games, right? You watch these, uh, uh, you know, whether it be football or basketball, and you’ll—you’ll hear the announcers say, “Wow, this other team came out early and punched the other team right in the mouth and they didn’t recover very well. They weren’t expecting that.” That’s what we’re talking about here. It’s coming out in an unexpected fashion. That will neuropsychologically force the witness’s brain to go into amygdala hijack.

Now, if they are very, very well trained, that won’t work. See, I train my witnesses that that’s going to be impossible, my witnesses, okay? But I don’t work with every witness on the planet, and I don’t work with a lot of plaintiff witnesses, I’ll tell you that. But if you start in that unexpected spot—and it’s—it’s an unexpected spot and it’s a sensitive spot—and that witness is not ready for that, most of the vast majority of—won’t even—even an expert. Start in that sensitive spot. Start there and apply pressure. That’s number one. It’s your starting spot because they will not be anticipating it. Okay? You see it in sports all the time. Basketball and football, they do something different than you’re expecting and then what happens? Panic sets in and it starts to affect your behavior, your communication, your conduct, your play on the field. So that would be number one: start in an unexpected and sensitive area right from the start. You can get all that silly background information in the middle or on the back end. You don’t really care about that stuff anyway. Okay? And get the other team on their heels. And that’s also going to—you’re gonna see plaintiff’s counsel panic a little bit when that happens. Okay? So, we want to raise the temperature in the room immediately and not wait. Don’t, because see, here’s the thing: most—most attorneys like to start with those easy background questions. They want to get warmed up, right? They want to assess the witness. They want to develop rapport. Don’t do it. Don’t do it. Start in an unexpected place.

[07:43] Bill Number two—boy, this again, this is gonna be a controversial podcast because now we’re—we’re kind of reversing all these—all these tricks. Uh, but they—but they work, so you might as well use them if you have the—if you have the opportunity and if it’s the right situation. Not all situations are like that. Is you have to properly use emotion when you’re not getting the answer that you desire. So, you ask a question. The prepared witness gives an answer that’s favorable to them. You want a different answer. Well, now we need to inject emotion and repeat questions. Classic maneuver from the plaintiff’s bar. Let’s—let’s take a tool out of their toolbox and let’s use it on them sometimes. Okay? Eject—what do I mean by emotion? Well, I’m not a big fan of the table pounders. Okay? I don’t think it’s necessary to scream or pound the table and behave like that. I’m not saying that. But you can inject things like frustration, irritability, confusion into the equation. And you’re going to do that with the tone of your voice. You’re going to do that with your facial expression. You may insert the eye roll, the smirk. Love the smirk. And that sets the witness’s brain off if they’re untrained.

See, my witnesses are trained for this. It’s not going to work on my—it’s not going to work on my witnesses. But again, I don’t work with all witnesses. So, this—this will work a high probability of the time. So, when you get that answer that they’ve given you and you put in these verbal and nonverbal, uh, emotional factors, many, most witness brains will then go into amygdala hijack because they’re not going to feel very good about what you’re doing. They will then feel threatened. The smirk is a threat. The huffing and puffing is a threat. The eye roll is a threat. Your tone—I’m not saying yell—but increasing your volume like I am, okay, applying that emotional pressure. They give you the answer and then you respond with, “Okay, now hold on. Let—let me get this straight because I just want to make sure we’re on the same page. Here’s my question, this is your answer? Serious? I just want to make sure for the record, because the jury’s going to hear this, so I want to make sure we’re on the same page.” And you throw one of those in in there. And then you—now you can’t see me because I’m not on video right now because I have a cold and I look terrible, and that’s why I’m not on video.

That witness is gonna see that, and 99 out of hundreds, they’re—that their witness brain is gonna say, “Oh, oh boy. Um, I better come up with something because this is not going well. Um, I better say something different. I better add to my answer.” Sometimes they even change their answer, right? Now, the well-trained witness who goes through advanced training that I provide—thank you—they are going to not take that bait and they’re going to stick with their answer and be consistent. The untrained witness is going to take that bait every time, and they are going to do one of a few things, which is again: fight, flight, freeze. They’re going to—they’re going to fight, meaning they’re going to argue with you, they’re going to become defensive, that blood will start boiling. Or they’re going to flight. They’re going to start talking, “Yeah but, yeah but, yeah but, yeah but, yeah but, let me explain, let me explain,” because you got him on the ropes. Or they’ll freeze up and just agree with you. They’ll agree with anything.

Okay, now when you do that, particularly early in a dep—this is why it’s so dangerous for defense witnesses when this happens early in the dep—it’s a neurochemical reaction of cortisol and adrenaline that will then last for somewhere between three and six hours. Okay? Once you go to fight or flight, it’s impossible to get out of. Okay? These—these—these—these chemicals, uh, stay in your system and it—what it will do, it’s going to prevent effective cognition for the rest of the dep. The rest of the dep. Okay? Again, I’m not saying being a jerk. I’m saying apply pressure, use emotion, inject emotion, repeat questions. And again, you may come across as frustrated, you may have come across as a little irritable, you may have come across—let’s talk about confusion. They give you that good answer, you respond with, “Yeah, I’m sorry that your answer confuses me. Um, let—let me back up. Let—let me ask it this way instead,” and you—and you repeat the same question roughly, right? And you act confused. Well, that is a threat to the witness because then the witness thinks, “Oh my, you know, this—this attorney is not understanding my answer. I better add more. I better restate it a different way.” It’s a trap. It’s a psychological warfare, folks. And this is what they’re doing to your witnesses. So, can you do it to the plaintiff? Can you do it to the plaintiff experts? Absolutely. Just make sure you’re doing it on the right case in the right circumstance because again, um, it could blow up in your face on the wrong case. Okay? I mean, you know, if you—if you’re in a med mal case and it’s a—and it’s a birth injury and you’re deposing mom, yeah, I don’t know. I don’t know if doing this to mom’s a really good idea, right? But there’s other types of cases where it’s completely, completely acceptable and you can still be respectful. I’m not saying be unprofessional. There’s a fine line. Because there are attorneys out there that can be unprofessional and unethical with how they’re behaving. Just go on YouTube, type in “bad deposition.” You could sit there all day watching, uh, attorneys, uh, behaving very badly, uh, with witnesses and, uh, yeah, I’m not—I’m not saying—I’m not saying do that. I’m—I’m saying you may have an opportunity here.

And again, once that amygdala hijack sets in, it is going to disrupt their cognition for the rest of the deposition. That’s why it’s such a huge part of my training program with witnesses, with defense witnesses, is—and when I work, when I work on plaintiff cases in commercial litigation, you know, where it’s business versus business, I’m training the plaintiff witnesses to—to endure this these same tactics because they work. They work because your brain is wired a certain way to deal with this stuff, and if it’s not rewired, there’s no choices in this matter. Your brain’s going to go to amygdala hijack. Okay? So, start—start in a surprise spot. Um, inject respectfully, right? Inject that emotion verbally and non-verbally. Repeat questions to create that tension to see if you can budget them off of their stance and get what you want.

[15:22] Bill Third, use your best exhibits early. Don’t wait till later in the dep. Don’t wait till later in the dep. Again, we’re trying to induce amygdala hijack, right? So, meaning you want to create a threat to the witness that’s going to disrupt their cognition and then they’re going to say bad things that’s going to hurt their case. That’s—that’s what you’re doing to them. That’s—that’s what they do to your witnesses. That’s what it is. Okay? Use your best exhibits early. For example, you have surveillance video. Okay? You have surveillance video of the plaintiff. Don’t wait till hour three to use that. Why in the world would you wait till hour three? Now, you do it early and you do it often, and that’s going to disrupt them. And so, when you’re asking, you know, when you’re asking more meaningful questions in hour two and three, uh, they’re not going to—they’re not going to answer effectively and that’s gonna—and that’s going to, you know, that’s going to give you leverage.

So now let’s kind of talk about the obvious question here. Um, should you be doing this? Well, you know, all’s fair in love and war, right? Um, and litigation’s a war. Um, these are tactics. These amygdala hijack tactics, um, have been used for a long time by the plaintiff’s bar. They are taught by the plaintiff’s bar, and they’re highly effective. And I’ve—I’ve heard some defense attorneys like, “Well, I don’t want to stoop to that level. I don’t want to stoop to that level.” You know, and I’m not saying you’re—I—I don’t think it’s stooping. I—I think it’s effective questioning, right? And—and listen, you do this stuff at trial. Now trial is a different animal, right? Because now you got the jury. Your behavior is being judged, and you have to be really careful, whereas at deposition there’s no jury. Yeah, it’s videotaped and your voice is going to be on there. You have to be careful with that. You know, in front of a jury you got to be careful. This is not the movies, okay? You are not Lieutenant Kaffee cross-examining Colonel Jessep. Okay? All right, A Few Good Men. Look it up. Last 15 minutes of that movie is epic. Okay? That—but that’s—that’s not what’s going on here. That’s not what I’m talking about. But at trial, okay, okay, you could theoretically do the same thing is when you’re cross-examining these witnesses is to get, you know, get to your best stuff early. Don’t—don’t—don’t—don’t wait for it.

Primacy is a huge factor. We talked about that in the podcast. I’ve written papers about that. I do speeches on that. Primacy is key, right? So, if you’re cross-examining the plaintiff or cross-examining the plaintiff’s expert, where should you start? Well, start with the best stuff. And most often times the best stuff you have is what’s going to be most threatening to that particular witness. It’s all psychology, folks. All psychology. How you do things, when you do things, how you order things, right? And again, I think—I think just kind of the overall arching theme here is don’t be so predictable. Don’t be so predictable. I mean, these depositions are out there on the—you know, I mean, so a lot, you know, scouting—I’m a big fan of the scouting report. Okay? I always ask defense counsel, “What’s the scouting report on plaintiff counsel?” Now oftentimes the defense, “Oh, I—I’ve—I’ve had several deps with this—several cases with this plaintiff attorney. Here’s how they roll.” And we know. Or, “I’ve never been up against this plaintiff attorney before, but I got some depositions from previous cases.” We’ve got a scouting report. Sometimes you have nothing. Okay? But I will say this: if—and this kind of goes beyond amygdala hijack—but I—I think a—a big skill for defense attorneys that you need to start to develop, and—and if you’re a plaintiff attorney, it’s—yes, plaintiff attorneys do listen to this podcast, and I’m—I’m honored, quite frankly, if you’re a plaintiff attorney. Both plaintiff and defense attorneys: be less predictable. Be less predictable to be more successful. If you’re predictable, the other team has a lot easier job to prepare.

See, when I prepare witnesses, I like—I get the scouting report, but then I’m always in the “what if, what if, what if, what if, what if they do this, what if they change up this,” right? Kind of like a good defensive coordinator. Kind like a good defensive coordinator in football, right? You’re going to look at game film from other games. But see, the other team knows you’re looking at that game film, right? You may know, “Hey, 82% of the time this team runs the ball on first down.” 82%. All right. Okay. Well, that means 18% of the time it’s gonna be a play-action fake and they’re throwing it. You’ve got to be ready for both. You’ve got to be ready for both. Be less predictable. Get your scouting report, at the same time got to be ready for anything.

[21:09] Bill All right, that’s your podcast for the—do I have a rant for you guys? Let me see. Let me go to my rant list. I’m positive I have a rant. Let’s see. Uh, rant, rant, rant. Where is my, uh, rant list? Do I not have a rant today? No, I am positive I have a rant. Yes, here’s—okay, here’s my rant. Here’s my rant for the day. Okay? If you wear a t-shirt—okay, this—this makes me crazy. I almost want to talk to these people when I see them. Okay? If you’re—if you wear a t-shirt, and the across the t-shirt is the name of the state. Not university—that’s different. You know, you’re here in Florida and you wear a FSU t-shirt, or a Florida UF t-shirt, or a University of Miami t-shirt, UCF t-shirt. That’s fine. But when you wear, like, a souvenir t-shirt that says “Florida” across it and you live in Florida, you’ve got issues. I’m—I’m like, what’s wrong with you? It makes me crazy. Imagine getting that as a holiday gift, right? You live in Florida and you get a gift from, like, your neighbor, your family member, and it’s a shirt that says “Florida,” like a sunshine up in the top or something, right? The hell’s wrong with you? That’s terrible.

Now, you get the Florida State shirt, that’s one thing. You can—yeah, people in Florida walk around, “Hey, that’s great.” You live in North Carolina, “Go Heels.” But if you live in North Carolina and then you wear a shirt that says “North”—just “North Carolina” across, like the state, not a university—God, it’s kind of weird. It’s kind of weird. Now, here’s the exception: you live in Illinois and you go and you visit Florida, and you want to buy your stupid Florida shirt to take to go wear when you’re in Chicago. Go ahead. If you’re in Chicago wearing a shirt that says “Florida,” people are like, “Hey, you went to Florida. How was it? Where did you go?” It’s a great conversation starter, people. But if you live in Florida and you’re wearing a shirt that says “Florida,” everybody’s going to look at you funny, like, “What the hell’s wrong with you?” Okay? Just trying to make your life less awkward, folks. That’s my rant for the day. And yeah, that is my rant for today. And this is the Litigation Psychology Podcast. We’ll see you next time.