Preventing Nuclear Settlements at Deposition: The Role of Cognitive Fatigue on Witness Performance.

• Author: Kanasky, Bill, Jr.

NUCLEAR settlements have not received the same intense attention as nuclear verdicts in today's litigation atmosphere. This is not surprising, as it is well documented that jury damage awards are spiraling out of control in many industries, particularly the transportation, pharmaceutical, and healthcare areas. Thus, the topic of preventing nuclear verdicts is finally getting ample attention from the defense bar, as defendants and insurance companies are fearful of being the next victim. However, one could argue that the phenomenon of nuclear settlements is far more prevalent, considering the vast majority of cases never reach a courtroom. Paying nuclear settlements inevitably leads to more lawsuits against that particular client, since word spreads fast in the plaintiffs' bar about which companies are fearful of trials and would rather pay their way out of trouble. (1)

Deposition performance is critical to case outcome, particularly economically. Strong, effective depositions decrease a client's financial exposure and costs, while weak, ineffective depositions result in higher payouts on claims during settlement negotiations (i.e., a nuclear settlement). Specifically, when witnesses drop "bombs" at deposition, those "bombs" end up costing an extraordinary amount of money. Clearly, poor deposition testimony greatly widens the gap between the real and perceived economic value of a case, putting a client in an unfavorable position when trying to settle. (2)

An attentive witness who can maintain maximum concentration levels during deposition is far less vulnerable to making critical testimony errors compared to an inattentive witness who struggles to concentrate. The neuroscientific literature clearly illustrates that cognitive fatigue, the failure to sustain the level of attention needed to optimize performance, (3) induces significant decline in key areas of executive functioning that are essential to effective witness performance at deposition and prevention of nuclear settlements. However, no one has explored the relationship between witness cognitive fatigue and witness performance. If impaired attention and concentration due to fatigue leads to harmful testimony, then preventing witness cognitive fatigue should be a top priority for defense counsel. As a 30-year veteran trucking attorney recently stated, "when mental fatigue sets in at deposition, bad things happen."

To prevent fatigue-based witness errors at deposition, defense attorneys have preached for decades "I make my witness take a break every hour during deposition." The key neuropsychological questions the authors of this article ask are:

* Why one hour?

* How long should the break be to sustain optimal performance?

* What should the witness do during the break to sustain optimal performance?

* If the purpose of the break is to prevent cognitive fatigue and allow the witness to replenish their cognitive resources, shouldn't this decision be scientifically supported?

This article illustrates that the "take a break every hour" philosophy long held by most attorneys is a gross strategic and neuropsychological mistake that leaves the witness highly vulnerable to cognitive fatigue. This fatigue can often result in poor testimony that unnecessarily harms the defense's case, both strategically and economically.

1. The Science of Cognitive Fatigue

   Cognitive fatigue causes deterioration of key executive functions such as executive attention, (4) sustained attention, (5) goal-directed attention, (6) alternating attention, (7) and divided attention. (8)

   Deluca (9) defines four areas of cognitive fatigue, each of which directly apply to the deposition experience:

   1. Decreased performance following an extended period of time;

   2. Decreased performance after a challenging mental exertion;

   3. Decreased performance after a challenging physical exertion; and

   4. Decreased performance during acute but sustained mental effort.

   Witnesses may be exposed to all four of these circumstances during deposition. First, many depositions last over extended periods of time, ranging from several hours to multiple days. The cumulative number of hours of deposition testimony alone represents a major mental challenge to a deponent, requiring incredible amounts of mental energy to perform optimally over time. second, witness testimony requires high amounts of mental exertion. Many questions challenge the witness' memory of events, conduct, and decision-making, while other questions require strenuous document review and interpretation. Multiple cognitive activities can multiply the rate of cognitive fatigue. Third, deposition testimony carries with it a significant biomechanical/physical investment by the witness. Contrary to popular belief, the act of sitting upright and maintaining professional demeanor and body language for multiple hours is physically exhausting. Review of video-taped deposition testimony often illustrates that witnesses eventually resort to postures that are specifically designed to reduce the physical effort of sitting up straight, such as leaning back and/or slouching in the chair, as well as supporting their head with one or both hands. Finally, witnesses must maintain sustained mental effort during deposition in the face of an acute, negative stimuli. specifically, acute negative stimuli including the three emotional attack methods can force a witness into fight or flight response patterns: aggression, humiliation, and confusion. All three can represent direct threats to a witness, causing him or her to depart high road--logical cognition--and regress into low road--fight or flight cognition. This neurochemical process, known as "amygdala hijack," results in exponentially higher mental energy expenditure, and in turn, in harmful deposition responses. (10)

   Six years later, another (11) study suggests that cognitive fatigue should be defined as an executive failure to monitor performance over acute, but sustained, cognitive effort, which results in decline and more variable performance than the individual's optimal ability. This study concludes that the body of research findings suggest that tasks that are mediated by the prefrontal cortex (PFC) may be more sensitive to the effect of cognitive fatigue. Put another way, tasks that require persistent prefrontal cortex activation may increase the risk of cognitive fatigue on performance (witness testimony). Effective witnesses are specifically trained to maintain prefrontal cortex activation throughout deposition, rather than regressing into subcortical (amygdala) fight or flight information processing. (12)

   Therefore...