Episode #73: Cognitive Fatigue of Witnesses

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.

Full Episode Transcript

[00:01] Bill Welcome to another edition of the Litigation Psychology Podcast. Your host Dr. Bill Kanasky, and this is brought to you by Courtroom Sciences, courtroomsciences.com. Interesting podcast this week. We’re going to talk about preventing nuclear settlements at deposition. A lot of nuclear settlements out there don’t get nearly enough press as the nuclear verdicts, and there’s several issues for nuclear settlements, but one of them being the role of cognitive fatigue on witness performance.

Witnesses get worn down, particularly in the zoom age, particularly in the zoom age. So we published this paper recently. Mr. John Nunnally from the Ragsdale Group in Raleigh, North Carolina published a paper on this topic. I’d like to walk you through the paper today because I think it’s very important, and I think there’s a lot of misconceptions about their, around fatigue and witness performance. Local time 3:08 AM Eastern. So you must be asking yourself, “Bill, why, why are you doing a podcast at 3:08?” No, I did not stay up until 3 o’clock in the morning. I did not tie one on. No, I actually went to bed early and woke up at 2:30 to do this podcast. Why? Busy guy. Back to full time, over full-time work.

Trials are starting, so doing a lot of trial witness prep, doing a lot of mock trials, doing a lot of focus groups. So what I’m going to do is I’m going to share my screen with you because I want to put this paper up on the screen. I want to walk you through it because I think this is really important, and here we go. So, there is me in my picture. That, yes, that picture is 10 years old. There is John Nunnally and he really helped out on this paper. We will be doing CLEs on this topic very soon, but let’s, let’s really jump into this because the scientists have looked at cognitive fatigue for many years now.

[02:19] Bill And what we really want to focus on—I’m going to skip all the, a little bit of science, actually a lot of science behind this—I’m going to skip over that, but just to tell you that scientists have been saying this and have figured out that cognitive fatigue actually starts happening at around the 35 minute mark. And the whole purpose of this paper was, why are we telling our witnesses, “Hey, we’re going to let you take a break every hour”? Based on science, that’s a, just a gross strategic mistake. And it’s really important to understand when does the witness actually start fatigue? It’s around 35 minutes. So what we’re going to tell you at the end here is a break at 45 minutes at the latest is going to be really important.

Let’s go over some of the deposition specific factors that are causing cognitive fatigue. Number one: negative reinforcement. Nobody understands negative reinforcement. Let’s talk about negative reinforcement. So negative reinforcement pretty much means if you have a constant negative stimulus, i.e. plaintiff attorney all over you during a dep, what the brain wants to do is get rid of that negative stimulus. And what does the brain come up with? Well, “Hey, I’ll just explain myself to this reasonable human being across the table from me or across the camera for me a zoom, and this, this person is going to stop it bothering me.” And number one, you know that’s not true. The more your witness talks, the more they try to explain, the more they try to talk their way out of things, they become defensive, they become evasive, oftentimes argumentative, and that’s going to lead to big time problems for your deposition.

But it sucks away valuable energy when your witness is doing this. That’s why we tell witnesses keep it simple, short, concise, precise answers because you’re going to get worn down over the process of this deposition. And it’s amazing how many witnesses, again, try to explain, explain, explain, and what they do is they dig themselves a hole, get themselves in big trouble, big time trouble. And so the concept that negative reinforcement really needs to be explained to the witness to understand that, hey, the plaintiff attorney is trying to wear you down because plaintiff attorneys don’t wear down. And so this is a really, it’s a concept that very few people understand, but I cannot think of any situation in which a witness constantly trying to force in explanations is going to help you, is going to help your case.

[04:57] Bill So that’s kind of issue number one that we’re dealing with. Number two: Virtual testimony, zoom fatigue. It is for real. People wear down faster on zoom depositions than they do in person depositions because staring at that screen is not good for you. It requires a very intense concentration and attention wears people down. Now you all have experiences. Everybody now, and this still is not going away, these zoom depositions, but they’re not easier. They’re not. There’s a couple things that I think are in the witnesses’ advantage because I don’t think that the plaintiff attorneys can be nearly as aggressive as they were previously, the intimidation factors out there. But again, the amount of mental energy required to maintain appropriate attention concentration during these zoom deps is very difficult on the witness. It’s been difficult on me doing witness training via zoom. I mean, I’m getting worn down stirring at this, at this damn camera.

So, I think it’s important that witnesses understand that they are actually going to fatigue even faster on a zoom dep. This is the important of the breaks. These breaks are so vital, and this whole take a break every hour is not going to cut it because that, you know, 35-45 minute mark, after that witnesses are going to start to mentally wear down, meaning decreases in attention and concentration, ineffective information processing, meaning mistakes, inadvertent mistakes. That’s, that’s going to be a problem. So virtual testimony has been very, very challenging for witnesses and i think it needs to be explained to the witness that, you know, “Hey, you’re going to wear down even faster.” Even if you’re sitting in your home office, you think you’re going to be better? Well, actually no you’re not because the technology involved, it takes up a lot of mental resources and people just don’t understand that.

[07:10] Bill There is plenty of science behind that. Number three here, okay: Reptile Questions. Listen, the training we put these witnesses through is very, very intensive and getting through and surviving a deposition, a reptile deposition, is exhausting. You have all the safety rule questions, the danger rule questions, the very tricky hypotheticals, and the amount of mental energy required to pick up on the key words to tip off the witness that, “Hey, this is a reptile question. I cannot agree with it. I’ve got to go with my ‘not necessarily,’ ‘depends on the circumstances,’ ‘sometimes not always,’ things like that.” Very, very high amounts of mental energy required for that. So the zoom deposition combined with the reptile deposition, imagine what that’s going to do to your witness.

So again, this just taking a break every hour is really, really not sufficient for the witness. And I think that the entire defense bar, the industry, has to start to understand the science behind this because I read so many depositions or I watch a lot of depositions and I can watch the timestamp and I can start to see the witness mentally and physically wear down, particularly in a reptile depositions at that, you know, 50, 55, 60 minutes. And then if you let your witness go to an hour 15, an hour and a half, they’re going to make a lot of mistakes, and they’re not effort-based mistakes, they’re really fatigue-based mistakes.

And so the reptile deposition definitely wears down the witness more. So what do you need to do? You need to take more breaks, folks. You take more br—now you may not be tired as the attorney, doesn’t matter. It’s your, it’s your witness. And I don’t care if it’s a corporate 30(b)(6), I don’t care if it’s a physician, doesn’t matter. I don’t care if it’s a low-level fact witness. Everybody’s brain is going to fatigue at the same rate.

[09:12] Bill And so addressing this fatigue issue is very important because I do think plaintiffs attorneys, one of their goals is to wear down the witness, and if they can do that, witness is going to make silly mistakes that are 100 percent preventable with the right training and with the right amount of breaks. So reptile deposition folks, more breaks. Okay, number four here: Litigation Stress. Yeah, people, I mean, many, many, many witnesses come into this process and they’re already, they’re already mentally exhausted. They’re terrified, okay? A lot of fear, a lot of anxiety, a lot of irrational thoughts like, “Hey, if I don’t do—I’m going to lose my job.” I have foreign-born witnesses thinking that they’re going to jail if they don’t do well in the deposition, that they’re going to get, get kicked out of their house, they’re going to get their house taken away from them.

A lot of fear, anxiety, and stress coming into deposition. That’s why witness training is so important, not witness preparation. And by the way, attorneys, you stress out your witnesses even more than they need to be stressed out. Why? Because you don’t deal with the emotional stuff upfront. And why don’t you? Well, because that’s not really what you were trained to do, right? You’re trained in the law. That’s why our witness training program’s so important, to assess and deal with these emotional issues before your preparation starts, so that we get emotional buy-in from these people. Okay, a lot of the training is therapeutic to get these crazy thoughts out of their head if they are having high levels of anxiety, okay? Sometimes even depression.

We can deal with that as clinical neuropsychologists here at Courtroom Sciences. It can make your life a lot easier, it can make the witnesses’ life a lot easier, particularly in the COVID age. I mean COVID, I mean people are coming in out of their minds into deposition preparation. And so not dealing with the emotional baggage that they’re bringing in, they are going to wear down twice as fast as your typical witness. So dealing with litigation stress is very important. It’s often time not dealt with at all. Witness comes in your office or you get on that zoom and what do you do? You start going over documents, going over practice questions, and the witness is mentally bouncing off the walls and you’re not doing anything to address it.

[11:53] Bill So you’re making your witness worse by not addressing their emotional concerns. And mental health’s a big topic, we have covered that on this podcast many of times. And so dealing with litigation stress is important, assessing it is important. And they realize, “Hey, if I have a eggshell witness”—everybody talks about the eggshell plaintiff—you may have an eggshell witness that’s going to break down emotionally really fast and adept. Preventable with the right training, but also preventable with more breaks. Okay, they’re gonna need to vent to you during these breaks.

All right, and yes, I’ll send you this paper. Next area: Litigation Guilt and Sorrow. A little bit different than litigation stress, meaning they come in feeling guilty. Typically in a catastrophic injury or death case, they come in feeling, “Boy, we really screwed up here because something bad happened.” And we all know that’s not the case. Just because there was a negative outcome does not mean there was liability, okay? Does not mean there is negligence, does not mean that the defendant caused the catastrophic injury of death. And a lot of witnesses come in here and they’re already down in the dumps feeling, “God, we must have screwed up because something bad happened.” Again, you have to deal with this stuff early. You have to deal with this stuff before you go onto documents.

You need to have somebody qualified, okay, qualified to deal with this stuff. And again, so many attorneys openly admit to me—well, they do it very quietly—they admit, “Thank God you’re here. I would never be able to assess this stuff, I’d never be able to ask these questions, and I’d never be able to fix it because I’m an attorney. I want to go over the exhibits, I want to go over the documents, but if my witness is out of their mind, it’s really much impossible. It’s really impossible to do that.” So dealing with, so we’re talking about really assessing these witnesses appropriately. And again, witnesses that come in with a lot of guilt, sorrow, um, they’re gonna, they’re gonna wear down faster in deposition. So we have to make sure, you know, they need to be getting the right amount of breaks during the dep, otherwise they’re gonna break down.

[14:07] Bill Next area: Corporate Representatives. It’s amazing. Every corporate rep witness prep I do is at least two days, sometimes three or four days. And the reason why is the amount of information these people are responsible for is insane. And so again, you have a witness that’s now putting in two to three to four, maybe ten times more preparation in reviewing documents, policies, procedures, warning labels, things like that, than your standard fact witness. That’s a, that’s a lot of, that’s a lot on their plate. And so again, corporate representatives, well typically some of the smartest people in your company, they’re gonna wear down. Again, they’re gonna mentally wear down.

And so they have to build stamina. And so during our mock questioning sessions of corporate reps, we have to build up their stamina. At the same time, it’s the attorney’s job to make sure that they’re not going an hour and a half before the first break. But again, the whole standard practice, the reason behind this paper was for 17 years all I heard was, “Hey, take a break every hour.” And I kept saying like, “Why an hour? What’s your, what’s your scientific basis for an hour?” And there was none. There was none. I think maybe the attorney was getting tired after an hour and wanted to get up and move around. Well, the witness fatigues differently than the attorney. And that’s really, that’s, that’s really an important part of this paper is that your witness is going to fatigue down faster than you.

So yeah, the corporate rep, much more. Particularly and those deps could go for days, right? Maybe your fact witness dep is going half a day, four hours, five hours, six hours. Those witnesses need breaks every 45 minutes. Corporate rep, wow, I mean wow. And so we’re really going to have to rethink this because if you just let your corporate rep sit up there for an hour to 90 minutes per clip, they’re very, very vulnerable to make mistakes in that extra time. Again, like the heat, like any human brain, decreases in concentration, decreases in attention is gonna be a problem. And then they’re unable to articulate the answers that you want strictly because of fatigue. It’s not because of lack of preparation, it’s not because of lack of effort.

[16:51] Bill Moving right along, next issue: Personal Issues. Unrelated to litigation. I cannot tell you how often this comes up, particularly now. It always came up, but especially now during COVID. Personal issues, divorce, family issues, family illness issues, maybe being a caregiver and you don’t know about it. Recent death of someone close to your witness, recent job loss, financial problems, substance abuse issues. There’s a lot of issues that you would just normally just never ask about that I always ask about because I’ve seen so many witnesses fail at deposition and then come to find out, you know, they’re going through a really tough divorce, or they have a parent that’s sick, that’s terminally ill and they’re providing caregiving services. They have a child that’s having behavioral problems at school and they’re going to therapy.

A lot of things outside of litigation that can emotionally wear down the witness and you don’t even know about it. So that’s again where I think the proper assessment of these witnesses is so important. The proper training by somebody qualified, preferably PhD in clinical psychology. Um, this is, this has been a long time issue but these issues have really multiplied in in the COVID era because COVID’s really impacted everybody—all races, all, all income levels. And so really talking to your witness about what’s going on with them personally outside the litigation, you’ll find out that you people are dealing with a lot of things. But if you never ask, you’re never going to know, and then the worst thing that happens is you do all this prep, they’re completely distracted by the personal issues, they come into the dep and they bomb. And you’re like, “Okay, what the hell just happened?” And you never realized that the witness was really unable to prepare adequately because they were so distracted by these, by these personal issues.

So again, just something else. So again, these witnesses that have these other issues going on, they need more breaks. So this whole theme is: more breaks equals better testimony. That’s gonna, it’s going to tick off your plaintiff attorney, but we don’t really care about that. So again, um, how—yeah, here’s right here: The Pit Window.

[19:29] Bill The pit window. If you’re a racing fan—and yes, I am flying in a couple hours here to Indianapolis to go to the Indy 500—and every driver, those drivers have pit windows. Why? They got to refuel. They’ve, they’ve got to refuel, they’ve got to change their tires. Excuse me, your witness needs the same thing. And where’s the pit window? It’s, it’s at the 40-45 minute mark. The 40-45 minute mark is the pit window. And if you miss your pit window, bad things are gonna happen. Bad things are going to happen.

Now I’ve talked to several attorneys about this who essentially said, “Well, if I ask for a break at every 45 minutes, you know, plaintiff’s counsel is not going to be happy.” Tough. Tough. Don’t care. I’m more worried about nuclear settlements and nuclear verdicts. It’s really the well-being of your witness and I’m just telling you—and if you’ve been deposed before, you know I’m talking about you—you, you mentally and physically wear down. That’s another thing no one talks about: the physical aspect of this. Sitting in a chair, sitting upright, looking at ex—it’s physically exhausting, which multiplies, you know, the mental fatigue. Most people in successful careers don’t just sit at a desk. They’re bouncing around, they’re up and moving, they’re multitasking, and they’re striving. They have, they work in efficiency systems.

Well, efficiency does not exist in a deposition. Efficiency makes mistakes. We need effectiveness. So the type of mental energy that we’re talking about here in deposition is unlike any work activity or skill. Yes, a heart surgeon can sit there for three and a half hours, do the surgery, and not fatigue, and then bounce to the next one. Why? This is what they do every day. This is what they do every day. It’s what they’ve been trained to do. Witnesses have not. They didn’t go to college for this. This is not what they do every day. And so again, the amount of, you know, mental, the amount of mental challenge on these folks is very, very high. And this is why plaintiff attorneys don’t wear down, because this is what they do every day. And so you really have to understand how your witnesses’ brain works and that’s really what we’re talking about here with this paper.

[22:10] Bill So preventing, preventing witness cognitive fatigue is really, again, it’s all about the breaks. It’s all about the pit window. You got to find out the pit window. And by the way, the pit window may not be 45, it maybe 30. Why? I’ve worked with witnesses that have chronic health problems. They may have, they may have a, a back injury, right? They may have other things going on where they can’t sit in the chair for an hour without experiencing pain because they have some sort of chronic medical condition happen. Hey listen, happens to the best. So your pit window may not even be 45 minutes, maybe it’s 30. Maybe it’s 35. But the science totally shows us that after 35-40 minutes, the mental fatigue is going to sit—it’s going to, it’s going to have an impact.

And you the attorney have to be able to assess your witness, not let them skip that pit window. And I wouldn’t trust a witness to take the break. Now the witness can take a break and they’re told in the middle, the beginning of every day, “If you need a break, let me know,” but they don’t want to take the break. They want to tough it out. They want to get the, they want to get the damn process over with, right? So I think it’s very, very important for the attorney to be watching, watching the clock, be looking for that pit window, and call for the break. Don’t just trust the witness.

So let’s get through the end of this paper here and there’s, you know, we’re getting to the conclusion here and we know that these fatigue issues are 100 percent preventable. They are. I’m going to stop sharing right now. 100 percent preventable and it’s really, again, I think the burden is on the attorney.

[24:04] Bill Now another issue that we have to deal with are long depositions. Long depositions, I think the pit window shifts as you get over four hours. So meaning, the first four hours that pit window may be at 45-50 minutes. After lunch, that may go down the 40 or 35 minutes because of the cumulative time spent sitting in that chair. It’s a long, long time. Particularly, I mean a lot of mistakes get made at 3 PM, 4 PM, 5 PM in depositions that otherwise would have not been made if it wasn’t such a long day, the witness wasn’t worn down. So another great strategy is to take more frequent breaks in the afternoon where witnesses have been there all day, they’re naturally wearing down, and to play those cards correctly.

Now I had a attorney I was talking to the other day and he said, “Yeah, most of our depositions, particularly in the state of Illinois, there’s a three-hour cap.” I mean these things aren’t going long. Rapid fire questioning. Okay, rapid fire questioning is a common tactic by plaintiff attorneys. It wears down witnesses even faster. So if you, if you have a deposition that’s scheduled for three hours, don’t, don’t be thinking, “Hey, this is a short deposition, my witness is not going to wear down.” That is not true. That is not true at all. Witnesses can wear down actually fairly rapidly, particularly if they’re getting pelted with questions. Um, they’ve fallen into the speed trap. They are not taking their time.

They’re not forcing cognition, which we have talked about before, which is that two to five second gap of time, and they start to answer questions like this. Well, number one, that’s a very dangerous methodology because they’re going to step on a landmine. Number two, if it’s a reptile, if it’s a reptile deposition, they’re definitely going to step out of landmine after going fast. But back to the topic at hand, number three: if they’re answering questions rapidly, they’re getting more questions per minute, which means that they’re going to naturally wear down. So it’s very important that you work with your witness on the shorter depositions particularly, but any deposition, working on the pace of the interaction. The pace—it needs to be painfully slow to limit the number of questions they’re getting per minute. Now let’s do some math. If your witness is answering questions like this, they’re multiplying exponentially the number of questions they’re getting per minute. That’s a problem. But if they’re trained appropriately by somebody like me and they get the question—one one-thousand, two one-thousand, three one-thousand—answer, and they do that, you’ve decreased the number of questions per minute roughly by two-thirds by simply taking your time.

[27:18] Bill So this topic of cognitive, cognitive fatigue is brand new. This is the only paper that exists on this in litigation. It’s the only one. If you read the paper—well, contact me, I’ll send you the paper—or go to our website, I think you’ll find it very interesting. The first quarter of the paper is nothing but the neuroscientific evidence for this, which I think is important. In fact, I think anything that I do or any jury consultant or witness prep consultant, anything they do—the first—if you’re an attorney, the first question you should ask, again, whether it be witness prep, jury selection, mock trials, focus group, you ask your consul: “What is the scientific basis you are using for what you’re doing?” Number one question. What is the scie—attorneys, ask your consultants this, and ask me this because I, I’ve got the answers for it.

You’ll be shocked because there’s so many non-science consultants out there. Garbage in, garbage out. “Why do you do it this way?” “Oh, because that’s, that’s the way I’ve always done it.” Well, that’s not good enough. We’re talking about assessing and modifying cognition, behavior, and emotion. That’s, that’s something pretty—you need a PhD to do that, okay? And so again, when you’re prepping your witnesses and you’re doing your jury research, I think it’s really important to figure out why you’re doing it the way you’re doing. And somebody’s gonna come, “I got this great witness training system.” “Oh really? Okay. Uh, where did this come from? What’s the basis of it? What’s the scientific foundation of it?”

Make them answer those questions because largely they can’t. Okay, here at Courtroom Sciences, that’s what we bring—bringing you science, bringing you the scientific method to show you there is neuroscience behind these techniques, behind these assessments, and that’s why the training is so effective. Okay, I think that’s enough for today. Uh, pushing 3:30 in the morning but I have no problem with that. I’ll give you a report from the Indy 500. Why am I wearing a Cubs jersey? First place, baby. That’s why I’m wearing the Cubs jersey—first place after a very, very rough start. Well, thank you for staying through that. Again, contact me for the paper, go on our website, www.courtroomsciences.com. Thank you for participating in another edition of the Litigation Psychology Podcast. I am Dr. Bill Kanasky. We will see you next time.