Trucking defense attorney Mark Perkins shares his personal experience with mental health and how he handles and addresses it. Mark and Bill Kanasky, Ph.D. talk about the ways the legal industry has, and has not, addressed mental health issues. They also discuss how the personal struggles that witnesses are experiencing in their daily lives, particularly in light of the Covid-19 pandemic, affect their mental health and how that can have a direct impact on their deposition testimony. Mark and Bill talk about the importance of taking the time to talk to witnesses about the litigation process and to address and alleviate their fears and concerns before they start their deposition preparation. Lastly, they discuss the challenges of confirmation bias, the necessity of quality supplemental juror questionnaires, and their thoughts on what people should do if they are experiencing mental health issues themselves.

Full Episode Transcript

 

[0:05] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences, and I’m Dr. Bill Kanasky. And I am here with my very good friend over in Louisiana, Mr. Mark Perkins. Mark, how are you doing?

[0:20] Mark Hey Bill, doing all right, thanks a lot.

[0:23] Bill It’s, uh, I really hope we’re over this hump. Uh, it’s been a lot of isolation. It’s been, uh, a lot of home cooking, which I guess is okay, but that gets old too. I’m kind of anxious to, uh, get back to seeing people face to face. Hopefully, uh, life will get back to somewhat, uh, normal soon. Uh, why don’t you give us an update on how you’re doing and how the firm is doing?

[0:50] Mark Thanks Bill. No, we’re doing well. Um, we did have somebody in the office last week that tested positive for COVID. We’re not a big office, and because of that, I had to quarantine the rest of the staff and we’re in the process of working through that. Everybody should get back in the office, but that has been a little bit of a problem. That’s the first person that I’ve been close enough that actually tested positive for COVID that we had, you know, an impact within our office. But otherwise, work has been going really well despite all the problems with getting into court.

[1:26] Bill Is there any update, uh, on on the court system, uh, in Louisiana? What it—what has—have you been hearing anything on, uh, uh, what’s gonna happen or maybe a timetable?

[1:38] Mark Well, the courts are open. Um, last week we had an issue with one of the local, uh, district courts that shut down because one of the floors, uh, some people tested positive for COVID-19 so they shut the courthouse down. So that kind of comes and goes. But in general, the courthouses are closed and we’re not under any kind of gubernatorial order that says, you know, delays etc. So we’re moving along pretty well, but it’s—it’s—it’s a difficult area to muster through.

[2:11] Bill Yeah, well we’re doing a series of podcasts, uh, this month with, um, a couple different topics. But one of the main themes that we keep discussing, it keeps coming up, is the theme of, um, and the issue of mental health, particularly in the field of law. Now, I am not a lawyer. I’m a clinical psychologist by training, but one thing I know, um, is that the practice of law was pretty damn stressful before any of this mess. And then you throw in—you throw in COVID, you throw in, uh, arguably the most, uh, um, intense political environment we’ve had in what, since maybe 1968 or something like that. Um, and then you throw in some social unrest, and boy you’ve got yourself a real, uh, situation in which, uh, I think all of our mental health, uh, health, uh, has been, uh, really challenged, um, here, um. What have—what have you been doing both as an attorney and as a firm to A) take care of yourself, but B) also make sure that that your staff and your colleagues are doing okay during such a difficult time?

[3:21] Mark Right. Well, thanks for asking. I’ll tell you first of all, I—I am an advocate for mental health. I am one who has been diagnosed with chronic depression and I struggle with anxiety. I—it took me about, um, probably five years to acknowledge that that was an issue for me personally. It took for those who—for those who have not dealt with that particular issue in their life, they may look at an attorney and say, “Well, you shouldn’t admit that,” or… I’m also—I’m also what what people would be identified as a believer in Christ, and because of my relationship with Him, you have a lot of church people who would say, “Oh well you just need to read the Bible more, you need to sing more, you need—” you know, all these different things that you need to do more of, instead of acknowledging the fact that, you know, you don’t—you wouldn’t do that to someone who had a broken arm or broken leg. You wouldn’t tell them just to get over it.

[4:25] Bill Exactly.

[4:25] Mark So you know, I have over the last several years—I mean, I’m not out just, you know, uh, putting it out on, you know, social media, but I do blog about it. I do talk to people about it. I talk about things that can be done to address it. And as far as lawyers are concerned, I think I mentioned this to you maybe last week or a few weeks ago, one of the things that kind of got me into realizing that I need to address this particular issue was through a lawyer assistance program which over the years has predominantly addressed alcohol and drugs.

But there was a, um, the executive director here in Louisiana of the lawyer assistance program was at a conference and he was speaking on issues of mental health dealing with depression and anxiety. And what he said was, this is the only profession that you have not only are you trying to do what you’re doing for your client, but you literally have somebody trying to undo everything that you’re doing. So if you could imagine a doctor, a surgeon, sitting there and trying to, you know, deal with the issues of the surgical procedure and you actually have somebody literally coming in and trying to undo everything that the doctor is doing, that’s kind of what we’re dealing with as lawyers.

So you know, we have this personality. We’re driven, and then we on top of that, you deal with the stressors of deadlines, uh, you know you—there’s a perfectionist attitude among lawyers. All of those things are just create a, you know, the perfect storm for someone to struggle with mental health issues, and they don’t, and—and—and most people don’t want to acknowledge it.

[6:07] Bill Do you think that the industry maybe has an opportunity to address these—these issues, um, more directly now than in—in the past because of COVID and because so many people are struggling? Because there has been a stigma associated with it, and I can’t say that I’ve been to many seminars in which this topic really actively came up. Maybe now there’s an opportunity for that, I’m not sure.

[6:36] Mark I definitely would say that after having been through, you know, the months and months that we’ve been through in quarantine or isolation, there is—there has been a lot of discussion about how we need to have some better socialization to address these issues because being isolated like we—like we have been can create a significant mental health problem. I’m not confident yet that as an industry or as a profession that we’re doing as well as we should be doing about it. I would say that that’s partly because of there’s a lot of people who don’t want to acknowledge that they have a particular struggle in this.

[7:19] Bill That’s the issue.

[7:21] Mark I mean, they’ve been in the past have been people who certainly have owned up to having drugs and alcohol problems, but the drug and alcohol problems are oftentimes a symptom of a deeper mental health issue. Maybe like I said, anxiety, depression. And so someone can have an addiction related issue and it could manifest itself in many different ways. It can manifest itself as a workaholic, it could manifest itself through overeating, of course through drugs, alcohol, in many many other ways.

And I think if we can address the underlying chemical imbalance issue that many of us struggle with… and you know, I’m almost 59. I say I’m almost 60 but I’m only almost 59, but I mean I’m closer to 60 than I am to 50. You know, there were a number of years that I could just deal with… what I mean, I believe that I had a life, you know, was probably born with some levels of melancholy and anxiety. But as a young person, as a teenager, as a, you know, young adult, continuing on, I was able to work through all that based on adrenaline and testosterone. But as you get older, you know, those chemicals begin to wane and that’s impacted by, you know, our losses of the chemicals in our brain that we can’t compensate through adrenaline and testosterone.

[8:43] Bill Yeah, and I tell you what, it’s something that’s not helping either of our mental, uh, health is, uh, LSU football and UNC basketball, right? It’s exhausted—it’s exacerbating my symptoms. Oh my gosh, uh, that’s enough of a headache, right?

[9:04] Mark As you know, LSU did beat Florida, so that’s—that’s the best that we can say.

[9:09] Bill The—the which will go down in infamy as “Shoegate.” The Shoegate. Um, and if our audience hasn’t watched that, go on YouTube and you just won’t believe it. But what—what an incredible game that was.

Um, but yeah back to mental health issues, the other thing I’ve noticed, which I’d like to hear your experience with, is that again, before COVID, um, it meant—I think mental health issues were running rampant and no one really wanted to talk about. And now they’ve multiplied exponentially because of COVID and political issues. I’ve been seeing a lot of the witnesses I’ve been working with having struggles. So one of the things I’ve been doing very early in witness prep sessions is asking people, you know, “How are you doing? How have you dealt? How are you—what are your coping mechanisms to deal with some of this stuff?” Because they may have financial problems, they may have some emotional issues, maybe they’ve had COVID and they were scared to death, or they’ve had a family member, a loved one have COVID. And try to get a sense of, you know, do you have family and friends to talk to? Do you exercise? What are some of the things you can do to—to stay healthy to get through this? Because I think if you ignore those things, uh, you could be missing something that’s very, very, um, serious and which may very well impact the testimony in the case.

How have you changed the way maybe that you’ve dealt with some of your clients and witnesses to address these issues given that they’re so prevalent and that if you ignore them, you could have big trouble at deposition or trial?

[10:43] Mark Let me start with myself, because I don’t think I answered the question of how I personally have dealt with it through—through COVID. One of the things I had been doing before COVID was getting back and addressing more of my, you know, my exercise routine. I was very involved at doing some swimming, uh, getting back to that probably three or four times a week. Of course then when we had the shutdown and the gyms and the natatoriums closed, and then I was in the process of just trying to make things work through, you know, payroll protection plan and, uh, you know, furloughs and do all that, and I would just—I just worked, overworked and didn’t do a good job of taking care of myself.

But fortunately we, after we got into I think stage two or three, I forget when it is, I was able to get back—get back into doing my exercise routine and that is so important. I mean, I find that 30 or 40 minutes of exercise three to four times a week gets me in a much better mental place. And likewise I think, you know, litigation has always been extremely stressful. One of the things we always talk—I’ve always talked to my witnesses, my clients, is to talk to them about the process and try to relieve them and allay their fears of the process. The process of where we’re going to be, who’s going to be there, what kinds of questions are going to be asked, those types of things.

You know, that’s what we talk about so often and what you do and trying to help our witnesses to address the fears and anxieties of how they answer some of these questions that, you know, we keep coming back to… or I keep coming back to the issue of, of the Reptile. I think it’s extremely important because people have a lot of fear, and the fear is—it keeps—it continues to be jammed up and fermented and people have a lot of concerns about that. Are they going to answer the right question? Have they done the right thing? And just trying to help them work through that is a big issue for us in the—in the legal field.

[12:57] Bill Yeah, and as—as I mentioned, you and I had spoke last week and we came up with the idea for this podcast. I apologize, my—it’s allergy season man, it is allergy season, that’s making me even more miserable over here. But I—I think the social and political issues in this country have been just as damaging as COVID, number one, particularly from a mental health perspective. And here’s the thing: they have a vaccine for COVID, there is no vaccine for political and social unrest.

And you saw what happened at the Capitol, uh, the other day. People have—people have lost their collective minds, uh, Mark. And that’s gonna have a huge implication once these courts open. I mean, thank god we don’t have courts right now. Can you imagine that what the juries would be doing? Everybody—you got 75 million people that hate this 75 million people, and then this 75 million people’s mad at this side. I mean, imagine if we actually had a jury trial right now. I would be terrified to be in a courtroom.

[14:02] Mark I agree. I agree. One of the things I was talking to somebody last night who’s—I—I mean it was like he—he got into it… wouldn’t—it didn’t matter what evidence, what information I presented to him. The bias was so solidified that it—I could not get through to him.

And that concerns me because if you know, I take this—if I—if I were to take this and just use this as a piece of evidence… and this is a red iPhone, okay? And—and—and clearly you can determine this is a red iPhone. And if somebody else looked at that and said, “That is absolutely not red, that is blue. I don’t care what you tell me, it is blue.”

[14:48] Bill Exactly.

[14:48] Mark That’s the kind of thing that I’m—I’m concerned about. If people are so in denial of the evidence, it’s not only the fact that they fail to prove a positive, it’s when a negative has been established. In other words, that something did not happen and they will still say, “I don’t believe it.” I don’t know from a defense standpoint how do you get beyond that, and that’s—that’s where we come to you, uh, you know, with jury profiling and help us to answer those kinds of questions.

[15:17] Bill And you know, again that was very active well before COVID and it’s what we call confirmation bias. I have a predetermined attitude of belief, I’m going to selectively—selectively pay attention to what I want to during court to match my belief, and then I’m going to make my own belief come true in deliberations by cleverly ignoring some of the facts with evidence. This is how juries have been operating for a long, long time. Now—now it’s gonna be even worse, number one.

And then what is your opinion—and I’m gonna—I have to be careful with this so I don’t tick you off or tick off our audience… um, and I—and I—I am a staunch independent, so I’m a very middle of the road guy. The impact of so-called “fake news,” right? So now when you hear something, it’s really hard to believe anything. I don’t care who say—I mean, I don’t care what channel I’m on, every time I hear something I’m like, “Somebody’s lying to me. Somebody’s trying to manipulate me.”

And so now, and that’s completely out of control, and so now when courtrooms start opening up, are we going to have a lot of jurors essentially coming into the process very negative—very not skeptical, but like cynical? Cynical of what these lawyers are going to be telling them? And then people that just—they think everything’s fake. I don’t want to believe any of this because I can’t trust anybody. I wouldn’t be shocked if you see more—a lot more negativity from jurors.

[16:52] Mark I agree. I mean it’s—you know, you say confirmation bias, it’s confirmation bias on steroids.

[16:58] Bill Yes.

[16:58] Mark And I’ve always said to the—to my clients, particularly, you know, because we usually—we represent larger, uh, companies and there’s a lot at stake. And I said it’s not simply a matter of poking holes in their proof. We have to prove something didn’t exist. We have to prove a negative, and that’s where we have to be more vigilant in doing that. Because the mindset—give you an example. So, some issues were brought up with this gentleman last night and I’ll walk through some of the things that he said about the, uh, the siege on the Capitol last week. And I presented him with counter information and—and it took a little while, but you know, he’s a logical guy and he can say, “Okay, I—I’ll agree with you on those situations, but I want to focus in on Georgia.”

And he brought up—I don’t know, I forget who the guy’s name was—some mathematician and some other person. And it didn’t take me five minutes to find information on both of them that discredited their credibility completely. But that’s the kind of thing that we have to do. We can’t take this stuff at face value and say, “Well, they can’t prove that,” because people will take that information as—as accurate and say, “Oh well, there you go, that shows that whatever it is that they want to believe in is accurate.” So we literally have to present them with information that is contrary and overcomes that bias.

And then a person who claims—claims to be an expert in a particular field and yet, you know, their—their expertise is not based upon any kind of, uh, peer-reviewed, um, credible science. We need to get them out, and hopefully the courts—fortunately the federal court’s a little bit better in doing this, but um, maybe they’ll be a little bit more strict on that kind of thing. So they can see that look, this is the kind of stuff that we’re running into—that people are buying into a false narrative, false news if you want to—if you want to call it.

[19:01] Bill Yes. Another concern with jurors. So if you look at the general population, the statistics essentially say 20 percent of the population has been diagnosed with some sort of mood disorder. So that’s typically either anxiety based or depression based. And that’s reported. So you could go ahead and double that number because half of it’s certainly not reported. So you’re approaching roughly 40 to 50 percent—and this is before COVID—40 to 50 percent of the—the U.S. population, okay, has a mood disorder of some severity. It could be minor, but a disorder is a disorder, right?

So you’re talking anxiety, you’re talking depression. What do you think that number is now, Mark? I mean, I—I mean it could—this could surge into the 80 percentile because it’s not going to be reported, right? But you have otherwise healthy people that are really—that have never had a mental issue, they’re now having them. And it makes you wonder as the courts start opening up. I always found it to be, when I’m helping consult on jury selection, these are pretty sensitive questions. You know, you can’t say, “If you’re clinically depressed, raise your hand.” You can’t do that in voir dire.

And so I think the use of supplemental juror questionnaires is going to be vital going forward because you can’t talk about politics, you can’t talk about mental health in open courts, because you’re not going to get honesty. No one’s going to raise their hand. And I think going forward, the use, um, of these types of questionnaires may be the only possible way you’re going to get some actual truth, because people tend to be far more truthful on—on paper than they do in open court.

[20:51] Mark Well, that’s true and I think also if you give them a hypothetical situation and you address it with, “Hey, suppose someone is—has this condition or this situation,” and try to open it up to allow them to talk about someone else. Maybe that will give you a clue as to whether that might be something that this individual themselves are dealing with. Okay? So that’s a big issue I think that we—we need to address.

I’m—I’m really concerned that, um, what—what’s happened is… you talk about that it’s—it’s probably escalated in terms of mental health issues. I think the fact that people have been isolated, they’re probably into say, uh, some social media, um, you know even YouTube. I mean, the algorithm for YouTube is set up so that people, when they go and they look for that, they find things that will support their position. And so they can go in and find some, you know, wild accusations and information, but then if you go and do a little bit more research on it, you find out that it’s unbelievable.

But as I said, you have people who already may have some issues with depression and anxiety, and then they’re going—they’re isolated, and then they’re going into these areas and there’s no one to—to talk about unless they do it on social media, and then that becomes a complete nightmare if you’ve ever tried to do that.

[22:14] Bill Disaster. Absolute disaster. Yeah. Well, let’s—let’s wrap up the podcast by—by… and I want to preface something, uh, this. Mark and I are not providing any type of medical advice here. We’re just kind of giving a general overview of this topic. But I think there’s two things that are important: identifying if you’re having issues, and then maybe some—some—some resources on—on what to do if you do need help.

Now, identification of issues… I can tell you, I’m exhibit A, man. My sleep quality has been just awful because I can’t—I can’t turn it off and I’m worried about work and worried about clients and, you know, all the courtrooms are, you know, pretty much shut down. And I’m like, “Yeah, this is my career essentially.” This has a huge implication for me, for you, for everybody. It’s hard to not think about that. And then you start thinking doom and gloom and you get into a lot of “what ifs.” And boy, your brain, once that negative spiral starts, boy, it can get out of control.

So I’d say to attorneys out there that are watching this: monitor your thought. You know, are you thinking more positively or is it pretty glass, you know, half empty? You know, number one. Number two, looking for those physical signs, you know? I mean, you know, sleep problems, you know, you’re down in the dumps, you don’t have any energy, you’re—you’re sleeping 12 hours a day instead of, you know, six to eight.

Um, we talked—I think it’s obvious, it’s—it’s this is not funny, but I’ve had a million phone calls like, “Gosh, you know, I am drinking—I am drinking like I’m going to the electric chair next week.” Um, everybody’s hitting the sauce. I think you have to watch out for that, me number one. Um, and, uh, um, I think there’s some things that you should be looking for, right, um, that are both—both, you know, kind of more cognitive based and, uh, uh, um, some physical things.

But I know that, um, I think overall, I think one—one simple thing that you can do is just go to your family physician. I mean, that’s probably an—a good, safe first step, um, to getting what you need. Because I think everybody needs different—different resources. I think some people can self-treat by doing exercise, taking your vitamins, you know, eating better. There’s a bunch of healthy things that you can do that’s going to make you feel better, uh, mentally.

And I know that when I, uh, I was exercising, um, like a lunatic, uh, over the last, you know, six to eight months and I hurt myself exercising and I had to go in because my back was killing me. And my doc said, “You’re—you got to rest for the next two to three weeks.” Mark, I—I was—I was—I was depressed. I was—I was… I just laid there like, “Oh my god, I can’t do all these things I’m typically doing.” Um, and so that was really bad.

But I think yeah, I think you go to your—you can go to your primary care physician, uh, to get assistance. I know I’ve seen a lot of, uh, hotlines being popped up on, uh, there’s obviously some public service announcements to the general public. Uh, it does—I don’t know if DRI has something, if there’s some legal network. What would an attorney do?

[25:35] Mark Well, of course there is lawyer assistance programs in every state and you can—that’s—that’s confidential and you can make—you can initiate that and it wouldn’t affect one’s ability to continue practicing law. So if you find yourself in a position where you’re struggling with—and maybe you’re drinking more, you’re maybe taking some medications that you didn’t think you would normally take, it might be a good idea to check with your lawyer assistance program. You know, take that—that initiative.

Also, people like me. I mean, I—call me. I’ve told people, I said, “Look, if you’re running into an issue and you can’t figure it out…” I’ve posted about this before. I’ve had people—they would six months later, they might say, “You know, I thought that was a crock, but now I’m in it myself and I just want to thank you that at least I know that I’m not alone.” And I think that’s a big issue for people to understand: they’re not alone. This is not something unique to them.

[26:28] Mark Yeah, pick up the phone. Um, you know, our friend Mike Bassett in Dallas… he’s been—I think I owe him, uh, I mean I have called this guy probably 25 times just to vent. Just to like, “Mike, I just need to vent,” and I just yell and scream and he gets me through it. And I think that’s an important thing. I think the worst thing you can do is not talk to anybody. That’s probably the worst thing.

[26:49] Mark That’s true. That’s true. Find somebody. Maybe somebody outside of the firm, you know, it’s not a competitor, but just someone who’s in a similar situation. Maybe, you know, like you’re in Florida and Mike’s in Texas and so, you know, you’re far away. Maybe you find someone that has a similar situation who lives in… I’ve got a good friend that lives in Utah and I vent with him from time to time, you know, and we can understand one another. And, uh, that—that’s a big deal. It’s a big deal. I think people need to do that.

[27:19] Bill It is. Well Mark Perkins, thank you so much for being on the podcast. I think this is a topic that hopefully—hopefully we did just crack open a can of worms that will stay open for a while and we can talk about this more on a regular basis. Because, uh, it’s a really—it’s a really important part of life that I think largely gets ignored because of the stigma behind it. But now it’s—it’s just… the importance of it now, it’s never been so important. In between again, whether you’re a attorney, a paralegal, a jury consultant, whatever, um, we’re all going to have issues. That’s—it’s important to get the help when you need it.

[28:00] Mark Agree. Thanks Bill, I’m glad to be a part of it. I really am, thanks a lot.

[28:04] Bill Thank you so much for being on the podcast.

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