Episode #73: Cognitive Fatigue of Witnesses

Preventing nuclear settlements at deposition

In this episode of The Litigation Psychology Podcast, Dr. Bill Kanasky talks about preventing nuclear settlements at deposition by doing a better job of managing the cognitive fatigue of witnesses during deposition testimony. Scientific evidence makes clear that witnesses begin to fatigue mentally at around the 35-minute mark, so the "take a break once per hour" philosophy of most attorneys is a major strategic mistake.

Dr. Kanasky highlights the key factors that contribute to cognitive fatigue:

  • negative reinforcement (plaintiff attorney wearing down the witness);

  • virtual testimony (virtual sessions can be more draining than live);

  • reptile (reptile questioning is challenging to navigate and it takes a lot of mental energy from the witness to deal with reptile deposition questioning);

  • stress of the litigation itself (fear, anxiety, irrational thoughts, etc.);

  • litigation guilt and sorrow (witness's guilt about negative outcomes);

  • corporate representatives who have a higher level of burden on their testimony than standard fact witnesses;

  • personal issues not related to the litigation (divorce, family issues, financial problems, substance abuse issues, etc.)

All cognitive fatigue issues are preventable. The ways to prevent cognitive fatigue is by properly assessing the mental state of your witnesses well in advance of deposition preparation, providing your witnesses with the appropriate level of neurocognitive training so they are fully prepared for the stress of deposition, identifying the right break schedule for the witness based on their personal situation, and being aware of the pace of the interaction to adjust the breaks accordingly.