Episode #52 – Mental Health of Witnesses

In this episode of The Litigation Psychology Podcast, Bill Kanasky, Ph.D. and Alyssa Parker, Ph.D. discuss the sensitive but hugely important topic of mental health. Mental health has always been a factor in litigation but since the onset of the Coronavirus pandemic, it has become broader and more critical, affecting an even larger percentage of the population. Dr. Kanasky and Dr. Parker talk about the challenges and stigma associated with mental health, the increase in mental health needs due to Covid-19, and the difficulty of accessing mental health treatment during the pandemic. They also share their expert insights on how mental health issues can impact witness testimony and case outcomes and the importance of fully evaluating the psyche of a witness with a trained mental health professional prior to preparing for deposition or trial. Also covered is the need for attorneys to explain the litigation process to witnesses, and how to manage the relationship with a witness before, during, and after their deposition.

Full Episode Transcript

[0:05] Bill Welcome to another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences. With me, my colleague Dr. Alyssa Parker. Hey Alyssa.

[0:15] Alyssa Hey, how are you doing?

[0:18] Bill I’m doing well. Alyssa was late to the podcast because she had to do her hair. Me, not so much. See, you like what happens? You like that? Um, now today’s, I think today is a very important podcast because we’re talking about something that has kind of always been a problem, but now has escalated into a huge problem. Not just for the general population, but for everybody we work with in litigation—from clients all the way down to witnesses—is the issue of mental health. Now, prior to COVID, mental health problems, huge stigma, right? Huge stigma. Drastically underreported.

[1:03] Alyssa Yes.

[1:04] Bill And and I think what you saw was maybe a couple of professional athletes were struggling with things, and you saw more of a kind of a a mini movement to accept people and mental issues. It just never really, really caught on. And now what you see is you have hotlines… uh, how dare you have commercials? “Hey, if you’re having depression, anxiety because of COVID, the pandemic, call this number.” Everything has changed.

[1:33] Bill Um, Alyssa, talk to us because you have a lot of—as a clinical psychologist, you have a lot of clinical experience. Talk to us about kind of mental health issues and how the prevalence, how they were perceived before COVID, and kind of what you’re seeing now.

[1:50] Alyssa I mean, I think one of the important things is something that you mentioned, and that’s that even though we do have prevalence rates, especially with mood disorders like depression and anxiety, they were so under-reported. That’s for people who are actually going and seeking help, whether it’s through a primary care physician or a mental health professional. But so many people don’t seek health, or seek help. And on top of that, a huge problem that’s occurred post-COVID is that access to mental health care—it has become extremely limited. So a lot of people are only doing telehealth. You’re not able to actually go in. Many clinicians are not taking new patients. So in a time where there’s a lot of turmoil and distress, and uncertainty about the future, and depression and isolation, um, everything’s escalating. And people are not getting the help they need now.

[2:45] Bill And that is a problem for everyone, because I think this pandemic has affected everyone. And so now, you know, we’ve been doing… we’ve been actually quite busy doing our witness training system, mostly for deposition now because there’s really very, very few trials. But very, very active in discovery doing deposition preps. I will tell you this, I always said before COVID, and I would tell my clients about this, I’d say, “Hey,” because they say, “Well, how many sessions do you need with this?” I said, “I don’t know yet,” because I say, “You know, usually two out of ten witnesses I’m going to find something mentally, emotionally… like something’s gonna be off that’s going to disrupt our training, disrupt the preparation, and they’re going to need more work. They’re going to need more work.”

I’ve had several witnesses, for example, nurses who were going through a divorce—never told the trial team—and they were out of their minds. And so they needed a little extra help. That popped up roughly two out of ten witnesses. Since this has broken out, and particularly the last, I’d say four months, by far seven… seven out of ten witnesses I have worked with are having significant mental slash emotional problems. And it doesn’t matter who they are. This says there’s no race issue, there’s no socioeconomic issue. We’re talking doctors all the way down to the janitor, from the CEOs. I mean, everybody’s been impacted. Have you had some witnesses that have some issues strictly because of the pandemic and now it’s… it’s really disrupted your witness training?

[4:31] Alyssa Yeah. And I think that when it comes to mental health and um combined with the pandemic, combined with litigation, um the issues are twofold. So you have what’s going on in their personal life that’s being brought to the table in litigation, and you have the impact of the litigation itself on them. And so when I think of litigation in general, for many people, especially if they’re a named defendant—let’s say a doctor—um this is one of the most stressful experiences they’re gonna go through in general. And now put it in context: it’s during a time of turmoil, of uncertainty, of very kind of polarizing beliefs, a lot of things going on in the world. And um they are struggling. Um there’s a lot of concern about what this means for them moving forward, especially when all of us are kind of wondering about finances and how we’re going to be impacted. A lot of people are experiencing depression at much, much higher rates, and same thing we’re seeing with anxiety. Um and if this is not addressed before you even get into any aspect of training, the training that you do is in essence not very helpful…it’s useless.

[5:48] Bill It is. And it may even make them worse. So again, prior to COVID, the way I would pick up on these things is because of my clinical background. I knew what questions to ask very early on and I’ve always done that. Like, “Hey, is there anything outside of this litigation that’s giving you significant stress?” Right? Stuff like that. “How are you sleeping? Um what you know, diet, exercise? What’s your social support system like?” Right? “How is this… how is this lawsuit impacting your your life? Are you having ruminating thoughts?” And these are questions attorneys never, ever ask, and that’s why they rarely tap into these things and then they’re shocked when I find them.

What are… what are… because obviously we can’t work on every case, there’s only you and I can like get strung out so far. But what advice would you give attorneys as far as the types of maybe very basic—they don’t have to be armchair psychologists—but maybe some basic questions to ask their witnesses to hopefully maybe detect some of this stuff? So that they know that their witness is struggling? Because listen, the witness is not going to walk in the law firm and advertise that they’re stressed out about their marriage or their finances. What do you think is the best way to approach that if you’re… if you’re giving advice to the trial attorney?

[7:16] Alyssa So um ironically, I wrote a paper that includes some information about this recently. Um but I think something to keep in mind is that oftentimes an attorney has some limited um with the witness, or if they’re a named defendant, with the defendant. Um and then time goes on and then you’re closer to a deposition and so now you’re kind of gearing up and amping up and talking to the witness a little bit more. So they’ve had this whole period of time to kind of stress out. And um what I think I need to point out, and I know a lot of attorneys know this, is a lot of people don’t understand how the litigation world works. And so they have built up so much anxiety in their mind about the impact of this and what this will mean to them.

So I generally say one of the first things that I would recommend an attorney ask is, “How are you feeling about this? How do you feel about the lawsuit? How do you…” and what I will tell you is a ton of witnesses say, “It’s fine. I’m fine.” Um but then have them talk about it some more. Really make them talk about it. “What what do you think they’re saying about what you did? What do you… how are you feeling about the process itself?” And it will… the emotion that they’re experiencing will start to become obvious. And then you kind of give them feedback. So for example, “You know, you mentioned that you’re feeling fine. When you’re talking, you seem a little frustrated. Am I reading that wrong or are you feeling frustrated about this?” Because you got to put the emotion out there. It really does have to be addressed.

[8:47] Bill Yeah, this is an interesting topic. So, and I want you to describe this to our audience, is the concept of not repression, but suppression. So what the witnesses tell me… I’m like, “So how are you doing?” They’re like, “I’m doing great until I get a letter from this damn attorney.” Meaning they actively suppress and do everything they can to not think about the lawsuit. And then they get that email or a letter and it blows up. Can you talk about the psychology behind suppression and why it does work, but it… it ends up blowing up in your face in the end if you don’t face reality?

[9:23] Alyssa And that is a conversation I feel like I have all the time. They’re basically compartmentalizing, and they’re doing a really good job of it. Until they get into the deposition. And you can compartmentalize as long as you’re not getting basically repeatedly jabbed with the issue that you’re trying to avoid. But you can’t compartmentalize for four hours under significant pressure of plaintiff counsel asking questions. It’s… I basically say you’re kind of putting in a drawer and that drawer is gonna burst open the moment you are feeling all this pressure. So if it’s, again, I can’t stress enough, if it’s not addressed beforehand, it’s coming out either in your deposition or worse, at trial.

[10:11] Bill Yeah, I I totally agree. Now one of the techniques that we use in our witness training program—which is pretty advanced, but boy is it highly effective—uh the whole concept of systematic desensitization. And we do that to help desensitize the nervous system from negative stimuli coming in from plaintiff attorneys. But the same process… this is where the… this is where the attorney screws this up is I tell them, “You know, well, how often are you keeping in touch with your witness?” And they’re like, “Oh, it’s been like six weeks.” I’m like, “Well, they’ve had the chance to come…”

In other words, if you let… if you just let that go for six weeks, right, they’re going to suppress, suppress, suppress, suppress, and then when you get a hold of them six weeks later, it blows up in your face. So I I instruct the attorneys or the… or even the paralegal, I’m like, “Touch them every two weeks even if it’s for five minutes. ‘Hey, how you doing? Just want to keep in touch.'” It desensitizes them to the legal phone call or email. So then when you you get to that six-week point for your next meeting, they’re not coming in losing their minds, having a panic attack. Because I do think that if you let that time period go, they would do everything to suppress the issue and I think it’s a big deal.

Particularly as you’re approaching deposition because I tell the witness, “Listen, I understand you’ve been…” I don’t use the word suppression, I’m like, “Hey, you’ve put this on the back burner. You’re trying to focus on your life.” I go, “Well, this dep is in a month.” I go, “You need to immerse yourself into this now.” And it’s kind of like jumping into a cold pool. It sucks at first, but then yeah, you get warm. Um what advice do you give witnesses who really don’t want to think about the case but then you got a dep in 30 days and they’re gonna have to men… they’re gonna have to mentally prepare for this? Because if they continue to suppress, they’re going to stink at the dep.

[12:15] Alyssa So for one thing, um there needs to be kind of what we say generally is the dumping of toxic emotions, you know. Um so before they even can immerse themselves into it, they need to be able to express that emotion. And I think there has to be some understanding of where that emotion is coming from. So for example, uh a witness that looks angry could actually be really anxious. Uh because their anger about the lawsuit is rooted in concern about what this means for their future, or um that they’re reevaluating kind of their role or position within a company, or for what they’re doing or how the company feels. Um so there needs to be kind of a basic understanding of where their belief system is even coming from. Um because oftentimes they’re also misinterpreting stimuli as well. Um and then once you’ve addressed that to some degree and kind of shored up those emotions a little bit, um then you kind of have to immerse them in it.

And so what I tell people is not only do we go over kind of an old—and what I say kind of painful detail about what this deposition is going to look like, how it’s going to go, how tricks and traps are going to be used, how they play on all those psychological factors—but then they have to practice, practice, practice. And the more that they’re able to do that, the more immersed and immune they become to these issues.

[13:38] Bill The the attorney typically doesn’t have training in psychology. So typically the call I get is like, “Listen, this witness has been a disaster the last two meetings we’ve had. This is going to be awful for you.” And I’m like, “Yeah, yeah, yeah.” And then I come and then the attorney starts the session like, “Okay, well let’s get out the case document.” I go, “No, no, no. I’m in charge.”

And then I literally… sometimes I do it for an hour, sometimes I’ve done it for half a day. And I tell that witness, I go, “Let’s just have a vent session.” And just let them spew. Let them cry. Let them let them kick things, let them throw things. Let them really, really just let it all out. And then once they do that, it’s shockingly amazing how effective they are going forward because they haven’t had the opportunity to really vent because they didn’t really have… and I think that’s one of the values that we bring because I don’t… I’ve had attorneys tell me, “I don’t like asking those questions. I don’t know how to ask those questions. And then if I have a crying or angry wit… I don’t know how to deal with that. I’m not a psychologist.”

So I think bringing us in is saying, “Hey, let’s… we’ll do this venting session here. Blow off your steam. Let’s talk about this process, some things.” And at the end, you know what? We’re your team. We’re here as your research. We’re here to help you. Then they buy into the system and everything’s fine. But if they… if you never have the venting, you never have the buy-in, they’re never going to do well at dep.

[15:11] Alyssa If I could also add that um not only kind of having us come in with a psychology background, but the other benefit of bringing in someone like ourselves is that we’re seen as more of a neutral party to the witness… we don’t represent the company, we don’t represent whoever. We’re not attorneys. And um so not only do we have kind of the psychology background to be truly addressing some of these issues firsthand, but um we’re not part of this legal system in the minds of the witnesses. So I feel like a lot of them generally speaking feel more comfortable dumping this emotion on us as well.

[15:48] Bill Oh yeah, and I make light of it. I typically make fun of the attorney, like, “Hey, I’m not one of these guys. No, no, I’m a… I’m a psychologist” you know? And then it does make them feel better because, by the way—and this is… I’m not saying anything… people are threatened by attorneys. I’m sorry. People are threatened by attorneys. They’re scared of them. They’re scared of their offices. They’re scared of their emails, they’re scared of their letters. They’re not scared of us. And so I think that’s a nice buffer that we can provide.

So let’s finish up this podcast by talking about probably the ultimate issue on what to do. And I think you and I can talk about what we do. But you may get an attorney out there that’s watching this podcast that hasn’t hired us and they may detect something’s wrong, right? What some of the options are um to do. I know what you and I do when we’re involved is we can provide some immediate therapeutic—and again, we’re not talking patient-provider relationships, right? We’re talking consultant-client relationship—where we can give some I think immediate um and effective help to get them through their current anxiety or depression or anger. And there are several techniques, cognitive-behavioral techniques, that you would… you and I could do that the the attorney could never do. But what would you recommend the attorney do if they pick on somebody… if they pick up on someone’s high anxiety or maybe very low emotions, maybe that anger, that the attorney can have some resources to help their their folks out?

[17:24] Alyssa That’s a really good question, Bill. Um I think first and foremost, if there is some degree of concern or an attorney is questioning kind of what’s next, “What should I be doing?” We are always available as a resource. Give us a call. You can talk this out with us. We can give you our assessments, what might be good one way or the other moving forward. Or another option, depending on the severity that you might feel is going on, you can recommend to your client or the witness um to go talk to their primary care physician directly.

[17:57] Bill Yeah, because it’s um I think these types of issues… in fact, I’ve gotten several phone calls in the last eight months saying, “Can you hop on the Zoom call and just spend an hour with my witness? And I I want your assessment of where this…” And then I can ask those questions. And I could tell… and I have no problem telling the witness and the attorney, say, “Hey, I I think you need some more structured help. I think that would be beneficial to you. I think that where you are right now is very unhealthy for you.”

And as a team, we can provide some basics. You you you may… I can’t force them to do it, but I think I can… I can make that suggestion. Or I can say, “You know what? Let’s keep talking through this.” And now it’s a two-hour Zoom instead of a one. And then by the end of the two hours, they’re like, “Wow, I feel great.”

So I think it’s just going to be a case-by-case scenario. But I can definitely tell you this problem is not going away. It’s only going to increase. And attorneys are going to have to really take this seriously because it’s going to keep popping up. It is going to ruin testimony if you don’t find these things. Which is another reason I’m not screaming like, “Hey, hire us!” but it’s one of the values that we provide that can really save a case. Because if one of these witnesses slips through the crack… cracks and then they they go to deposition and they implode, it’s going to cost the client a lot of money.

Let me finish up with… I will say again, obviously not mentioning names, several attorneys and several clients have called me out of their minds having mental health issues—anxiety, anger, depression—because it’s affected everybody. So I’d say, you know, be empathetic with your colleagues. When you’re… if you’re an attorney talking to your client, understand that your client may be having issues. Everybody’s having issues now. But I think this is something that needs to be on the front burner because it’s been the back burner forever. But particularly with the uh with the with the witness prep is to put on the front burner. We can help you. And um I think this is going to be something that’s going to carry on for a while. So, Dr. Parker, thank you for joining us. And thank everybody else for participating in this episode of the Litigation Psychology Podcast. We will see you next time.