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27Feb

Tips for Combating Plaintiff's Deposition Tricks #10: Force of Nature

Kelsey Taylor | Deposition Tricks | | View Counts (541) | Return

TRICK:  The Victim-Villain Vortex.

TIP:     Become a Force of Nature.

Well folks, we made it!  Welcome to Part 10 of our series on plaintiffs' deposition tricks.  For our final article, we're coming full circle and taking you back to the storm and all of its chaos. Except this time, instead of managing the storm, we're going to rise above the whole darn thing.

THE POWER OF PERSPECTIVE

High above the clouds, the sun is shining, the air is smooth, and the perspective is panoramic and perfectly clear.  That's where we'll be taking you today as we offer our final thoughts on deposition, lawsuits, human nature, and life itself.  From this 50,000-foot vantage point, it's easy to see the storm for what it truly is—a temporary disruption that occurs as a result of the planet's natural rhythms and cycles. 

But what if we were more than just observers?  What if, as part of this perfect perspective, we also had the power to influence, alter, and diffuse the storm and its destructive potential?   At that point, we would no longer be helpless spectators, but active participants in making the world a safer and more peaceful place.

Although controlling the weather might require super-human abilities, when it comes to the "storms" of life, we often don't realize how much power we have to influence negative and disruptive situations.  By making a conscious decision to rise above life's storms, we just might influence our surroundings—or even diffuse a storm altogether. 

After all, the only way to truly change the weather is to become a Force of Nature.

THE VORTEX

A funnel cloud is a curious thing.  It starts harmlessly enough as a puffy cloud of air and accumulated water droplets in the sky.   But when conditions are just right, a cold, rainy downdraft will meet a warm, humid updraft and the air will begin to rotate.  Once that air starts swirling, the harmless cloud could become a dangerous and deadly vortex, capable of destroying anything in its path.  And the more different the updraft and downdrafts are from each other (in temperature, humidity, and pressure), the larger, faster, and more destructive the vortex becomes.

Once a vortex has begun, no amount of human intervention can make it stop.  Rather, it will continue churning until it is acted upon by a stronger force of nature and atmospheric equilibrium is restored.  In a balanced atmosphere, the vortex diffuses naturally and effortlessly because it simply cannot continue. 

When it comes to depositions, we can learn a lot from studying the vortex, including the forces of updraft and downdraft necessary for its formation and existence.  However, before we can extend this powerful metaphor all the way to a deposition setting, we must first discuss the human brain and its tendency to behave like a vortex. 

ROLES – THE VORTEX OF HUMAN THOUGHT

Like a funnel cloud, the human brain can become a vortex when conditions are just right.   All day long we have thoughts that come and go just like puffy clouds.  But sometimes, we fall into repetitive thought patterns that swirl around inside our heads.  When these thought patterns are based in negative emotions like fear, anger, jealousy, sadness, frustration, guilt, and shame, we can unleash a dangerous vortex with the power to destroy ourselves and others. 

And we don't do this alone. 

Many of the thought patterns we habitually revisit are based in collective agreement to various social structures. When we conform to these structures, we assume a "role" according to the part we see ourselves playing: Parent, Spouse, Student, Employer, Friend, Enemy, Leader, Hero, etc.   In fact, it's basically impossible to play any Role without a counterpart.  Employer needs an Employee.  Parent needs a Child.  Teacher needs a Student.  Leader needs a Follower. And so on.

One problem with Roles arises when we forget we’re playing them and mistake them for our true identities.  This is like an actor who forgets he's on stage and starts believing that the play is real life.  And what if the actor’s part requires constant feelings of anger, suffering, disappointment, frustration, and hopelessness?  Now that’s a real tragedy.

THE ROLE OF VICTIM

As many of us have witnessed, one of the most powerfully negative roles a person can play is the role of a Victim.  Just like the actor lost in the play, the Victim is trapped in a prison of suffering inside his own mind—an endless funnel cloud of anger, self-pity, self-righteousness, despair, helplessness, hopelessness, bitterness, entitlement, and most importantly, blame. 

These emotions stay fueled by the Victim's "Story"—how he was hurt, by whom, and under what circumstances—and plays on repeat, over and over, in the Victim's subconscious mind. The Story recounts the list of things he can no longer do, experiences he can no longer have, and all the ways his life has changed for the worse.  

Victim status has some perceived benefits, of course.  For some, it offers the promise of special treatment from society, such as attention or sympathy. Others might receive financial or emotional support, or relief from certain duties or expectations. On the flip side, to receive this special treatment indefinitely, one must remain a Victim indefinitely, too. 

Although it's tempting to envy the favors and special treatment received by a Victim, remember, the constant suffering required to maintain Victim status is emotionally, spiritually, psychologically, and even physically destructive to the human playing that role.  This is because, as soon as the human starts to feel good, the specter of the Victim instantly reappears to retell his Story and reclaim his pain and suffering.  So although the underlying injury may have had sufficient time to heal, a Victim's emotional suffering is indefinite and may continue for life. 

And because the demonstration of suffering is a key component of the role, over time, it becomes impossible for the Victim to enjoy life or experience real gratitude, peace, love, or any other positive emotion for very long.  As a result, Victims tend to drag down everyone else in their lives, including family, friends, co-workers, and even strangers.  This may mean decreased patience or increased demands of support.  It may mean complaining frequently, speaking critically, answering unkindly, or scowling in response to a stranger's smile.  Because Victims subconsciously desire for others to share in their pain, they subconsciously create pain wherever they go.     

What makes the Victim such a tragic character is that the human playing that role has become lost inside it.  It's not a conscious choice, a charade, or hoax used to get attention or free stuff.  Instead, the true Victim subsumes the human's personality and identity entirely. 

THE DOWNDRAFT - VICTIM STATUS

Because maintaining the role of Victim is so demanding, other people ("supporting actors") are needed to validate and enable the Victim's status.  Although many different types of people can play the Enabler role, such as friends and relatives, when it comes to motor-vehicle accidents and other types of casualty claims, the plaintiffs' personal-injury bar has created an entire industry of Enablers.  

Although a physical injury is certainly not a prerequisite for Victim status, it provides an efficient path for those interested in the role.  And when plaintiffs' lawyers become Enablers, they stand to win big.  After all, physical and emotional pain and suffering (both past and future) are categories of damages that can be recovered by a plaintiff in a lawsuit.  Plus, because these types of damages are subjective and indefinite, they offer the possibility of enormous windfalls for both the plaintiff and the attorney…as long as a jury agrees with the calculation, that is. 

But what if a plaintiff goes to trial healed, healthy, and feeling great?  It would be pretty hard to convince a jury to award millions of dollars for "pain and suffering"—especially future suffering—when none seems apparent.  Thus, for the greatest recovery at trial, the plaintiff must continue to play the role of the suffering Victim throughout the duration of the lawsuit. 

The problem is that lawsuits can last for many years.   This means that the injured person must play this destructive role for a very long time, which not only impacts the plaintiff, but the plaintiff's family, friends, community, and everyone he interacts with. 

Now please understand, we are not saying that plaintiffs' injuries are not real.  Nor are all plaintiffs Victims. Injuries can range everywhere from annoying nuisances to life-changing disabilities or the loss of loved ones.  Some amount of physical and/or emotional pain is inherent in these events.  This pain affects the person at the human level.  Yet the mindset or role that develops from these circumstances is nevertheless within that human's control.  After some point, suffering becomes a choice.  Here's the difference:

  • The human experiencing pain can appreciate and feel deep gratitude for others' compassion. 
  • The Victim experiencing suffering feels entitled to others' compassion and becomes angered when it is missing or deemed insufficient. 

We have all heard inspiring stories of survivors who overcame tragic or life-shattering circumstances to lead expansive, fulfilling, and impactful lives.  Unfortunately, for many plaintiffs, the possibility of playing the role of Survivor may be inhibited by the influence and encouragement of an Enabler to perpetuate the suffering beyond the point where healing and recovery might have otherwise begun.  This is unnecessary suffering—the downward force that prevails when it would otherwise be time to rise. 

This is the Downdraft of the Vortex.

THE UPDRAFT - VILLAIN STATUS

In order to form a proper Vortex, however, the atmospheric conditions must include both a Downdraft and an Updraft.  As mentioned above, one of the signature characteristics of the Victim role is blame. And just as all roles require a counterpart, the role of Victim is incomplete without an antagonist to blame.  Enter: the Villain

Although the Villain is usually an actual person, when one is not available or identifiable, the Villain might take the form of God, nature, fate, or luck.  Regardless of the form, the rise of a Villain creates the necessary Updraft to begin a deadly Vortex. 

On some level, Victims know that their unnecessary suffering must eventually end.  However, once the Victim is consumed by that role, it becomes difficult to determine when and how to begin the healing process. As a result, the Victim subconsciously creates a set of internal "Rules" or criteria that must be met before healing can begin. 

  • I must receive an apology from the Villain.  (The Villain must feel truly sorry for his actions.)
  • I must get revenge upon the Villain.  (The Villain must experience suffering like I have.)
  • I must receive full compensation from the Villain.  (The Villain must make me whole.) 
  • The Villain must know he's a Villain.  (The Villain must validate and take responsibility for my suffering.) 

The irony here is that, by establishing these Rules, the Victim removes all power from himself and places it in the hands of the Villain.  But what if the Villain simply doesn't feel sorry?  Or does not suffer?  Or doesn't make the Victim whole?  Or doesn't acknowledge himself as a Villain. 

What then?

THE VICTIM-VILLAIN VORTEX

The problem with the Victim's Rules is that, no matter how carefully he scripts the roles, the Victim ultimately has zero control over the Villain.  This is endlessly frustrating to the Victim.  And unfortunately, when the Villain fails to follow these Rules "correctly," two things happen:

  1. The Downdraft strengthens – The Victim's suffering increases, and he becomes decreasingly able to connect with his human self as the Victim role overtakes his personality. 
  2. The Updraft strengthens – The Villain's status is further reinforced, and the Victim's Rules for the Villain become entrenched and immovable.

Now it's time to sound the warning sirens because conditions are perfect for a Victim-Villain Vortex

Ironically, by creating these Rules, the Victim has not only compounded the Villain's power, he has rendered himself helpless and indefinitely delayed the possibility of healing.  Left unchecked, this Vortex will continue to grow stronger, and over time, the Victim will progressively destroy himself and everyone around him. 

But wait—here come the Enablers!  Masquerading as Heroes, they offer solace to the suffering Victim.  "Yes, you are indeed a Victim," they say.  "Yes, you have suffered greatly," they say.  "Yes, the Villain must pay for his actions," they say.  "We can help you," they say.  "We will make the Villain follow your Rules."

Believe it or not, this is roughly the attorney's script in the initial interview with a prospective plaintiff.  And although most plaintiffs' attorneys are well-meaning and truly believe they are helping the plaintiff, by (1) validating the plaintiff's Victim status, (2) reinforcing the defendant's Villain status, and (3) confirming the plaintiff's Rules as prerequisites to healing, they have enabled and strengthened the Victim-Villain Vortex, which will continue throughout the duration of the lawsuit…and perhaps beyond. 

THE VORTEX AT DEPOSITIONS

You’re probably wondering how all of this relates to depositions.  Good question.  Well, once the attorney has stoked the churning Vortex, the Victim's Story becomes the narrative that will ultimately be presented to the jury at trial.  For the best results at trial, then, the attorney needs the jury to get sucked up by the Vortex and adopt the Victim's Story, too. 

And YOU are one of the main characters. 

You see, in order for the Victim's Story to be most effective for the jury, you must give a convincing performance in the role of Villain. When you assume this role, you further reinforce and strengthen the Vortex.

Throughout the deposition, the plaintiff's attorney will leave that door open and provide countless invitations for you to walk through, embrace your Villain status, and play the part.  Here are some tricks attorneys use to transform you into a convincing Villain: 

  • Low Road Cognition (i.e., make you ACT like a Villain) -  Deponents appear much more Villainous once they have been triggered into Low Road Cognition through the Aggression, Humiliation, and Confusion tactics we've previously discussed.  The reactionary, defensive, and aggressive conduct deponents tend to exhibit in Low Road Cognition effectively confirms their Villain status to the jury.  (In case you missed them, check out our prior articles in this series on tips for combatting Low Road Cognition.)
  • Guilt/Shame (i.e., make you FEEL like a Villain)  - The attorney will zero-in on the extent of the plaintiff's injuries and directly attribute plaintiff's physical pain, emotional pain, trauma, heartache, disappointment, and every possible, terrible fate that awaits plaintiff—and his family—to you.   As a defendant, you already logically know that this is what the lawsuit is about.  But when the attorney decides to lay it on thick, he invites you to do more than take legal responsibility for plaintiff's injuries.  He asks you to emotionally experience the Victim's suffering.  And in cases of true liability, this becomes much easier.   

The problem is that, when you assume the Victim's suffering, you actually confirm its validity for the jury.  Then it's time to get your checkbook.  Now, we are not saying that you must eliminate all emotion from your deposition—that's not possible.  But when attorneys use guilt as a form of emotional manipulation, they are no longer asking you to feel your own emotions, only the Victim's emotions.  And that is a bottomless pit.

  • The "Reverse" Victim (i.e., make you FEEL like a Victim) - On the other hand, maybe it's simply not a case of liability for you or your company.  You might start feeling like the plaintiff is simply an opportunist taking advantage of you.  You might believe that his injuries are bogus, or that he's lying about the facts.  You might find yourself angry and frustrated that you even have to be deposed.   You might start feeling a little self-righteous, perhaps a little bitter, and start blaming the plaintiff for wasting your time, costing you money, endangering your livelihood, or harming your company's reputation.  You might experience feelings of self-pity and start believing you are entitled to treat the plaintiff or his attorney unkindly or with disrespect.  You might believe the Plaintiff is a Villain and want to see him punished for this sham lawsuit he's brought. 

Sound familiar?  You've now become the Victim yourself, friend.  And believe it or not, defendants do this all the time.  Sometimes even with the support of their own attorneys!  They actually believe that by bringing entitlement and righteous indignation to the deposition, they will somehow convince the jury to side with the defense.  This never works.

Unfortunately, by becoming a Reverse Victim, all you've done is create another Vortex.  Think of it as a double twister.  Double the chaos.  Double the destruction.  Because, regardless of how it feels to you, the "defendant as Victim" narrative will bomb with the jury.  All you will do is look like a heartless jerk who obviously deserves to be punished.  Now you're the perfect Villain. 

However, when we avoid playing the role of Villain, we can better control the Vortex's zone of destruction.  But there's good news and bad news.  

Bad news first.  Although we'd love to tell you how to eliminate this destructive Vortex altogether, in reality, it's not entirely in your hands.  After all, the real Vortex is occurring inside the plaintiff's mind—a  place you simply cannot control.  The Victim is the only one with the power to eliminate the Vortex by reclaiming control of his life, letting go of Story and his Rules, and making a conscious choice to begin healing. 

But here's the good news: You can control YOU.  When you take steps to lessen the ability of the plaintiff, his attorney, or the jury to see you as a Villain, you begin to diffuse the strength of the Updraft.  In the context of litigation, this can lessen the overall power of the Victim-Villain Vortex and limit (or eliminate) the damage that may have otherwise occurred.  To do this, however, you must become a Force of Nature.

EMPATHY - A FORCE OF NATURE

As humans, one of the greatest powers we can wield is the power of Empathy.  Although widely misunderstood and misapplied, Empathy has the power to transform difficult circumstances in all areas of life.  This is because Empathy, properly used, has the power to extend beyond the Roles we play and connect us with our true humanity. 

Empathy is ability to understand and share the feelings of another person. Empathy is different from Sympathy, which is merely acknowledging someone's pain and providing them with comfort or assurance.  While Sympathy involves an intellectual understanding of another's feelings, Empathy involves emotional understanding. 

Sometimes Empathy arises from personal understanding after experiencing a similar situation. Empathy can also be developed, like a muscle, through the practice of putting yourself in someone else's shoes—a mental, emotional, and psychological exercise.  Although this process is less precise and more challenging, over time Empathy can become a positive and influential Force of Nature in your own life. 

However, as in nature itself, too much of any force can create imbalance. For example, rainfall can water your plants…or flood your basement.  Similarly, Empathy must be correctly applied in order to maintain balance.

Where Empathy gets tricky is that, to be effective, it must be applied to the human, NOT the Role being played.  When we experience Empathy for someone's Role, we actually validate and encourage that Role.  This only fuels and further enables the Victim's status. 

Moreover, it would be dangerous and self-destructive to emotionally experience the Victim's endless well of suffering from a position of Empathy.  After all, the Victim is already experiencing unnecessary suffering—the world doesn’t need any more of that.  This type of suffering is debilitating and consumed with blame.  The only possible result is that you'll start blaming yourself, too, just like the attorney wants you to.  Paradoxically, feeling Empathy for the Victim will cause you to say and do things that affirm your Villain status.  Weird, huh?

Experiencing Empathy for the Victim places you in the middle of the Victim-Villain Vortex.   This is a position of weakness because, obviously, when you're spinning inside the Vortex, you have no control over it. 

On the other hand, proper use of Empathy will be empowering for you and everyone involved.  This is a 3-step process. 

  1. Rise Above the Clouds – Remove yourself from the storm for better perspective. 
  2. Stay Above the Clouds – Learn how to keep that perspective throughout the deposition.
  3. Become a Force of Nature – Experience the Empathy that naturally occurs in the proper conditions.

STEP 1: RISE ABOVE THE CLOUDS

To approach the Vortex from a position of power, first, you need a better view.  To do this, we must rise above the clouds.  Up here, it becomes easier to see things as they truly are, not as we think they should be.  With the benefit of a little perspective, we can better understand the competing atmospheric forces at work below. 

Rising above the clouds is an exercise of observation, imagination, and introspection.  Think of it as taking a non-judgmental inventory of the roles—known and unknown—played by everyone involved with the deposition, including the attorney, the plaintiff, and especially, you

For instance, at your deposition, the plaintiff's attorney is obviously playing the role of Advocate.  However, he might also playing lots of other roles inside his own world, such as Employee, Employer, Business Owner, Parent, Child, Spouse, Mentor, Debtor, or Hero.  Each of these roles will have its own unique influence on how the Advocate shows up to the deposition, including motivations, challenges, frustrations, and fears.  You might be able to detect some of these roles yourself (say, through conversation or observation).  Others might require some imagination as you open your mind to the various possibilities.

Next, conduct this exercise on the plaintiff.  If you've already decided that the plaintiff is a Victim, imagine the other Roles he might be playing as well, along with how those Roles might be influencing or informing the Role of Victim. 

Most importantly, take stock of your OWN roles and think of the various differences you exhibit when switching between characters, including how all of your characters influence each other.  Finally (and this is the tough part), consider times in your life when YOU might have played the role of Victim—a time when you harbored blame, resentment, and self-pity for any period of time.  Try to remember how the role made you feel and how it may have affected other people in your life.  

And if it all feels a little schizophrenic, that's normal.  The key to this exercise is to observe.  Avoid judging any of your roles (or anyone else's) as right or wrong, even if only temporarily. 

Note: If possible, this should be done prior to arriving at your deposition for best results.  Once the day has begun, the activities and anxieties of the deposition will limit your ability to rise or stay above the clouds for very long. 

Of course, when we go above the clouds, we can't see what's below them.  But here, that's actually a good thing!  You've risen to a place where the details of the storm itself are no longer relevant.  In other words, you don't HAVE to know the details of everyone's roles for this exercise to be effective.  In fact, letting go of the need for certain knowledge is the fastest and most empowering way to rise above the clouds. 

What this exercise is truly about is teaching us to regard the plaintiff and his attorney as humans.  Humans who, like you, must often switch between life's many roles.  At times these roles have competing demands. At times they elicit conflicting emotions.  Some roles are exhausting. Some roles consume us. 

And we've all been there. 

So although our roles may be different, as humans, we all face similar challenges navigating the storms of life. When we acknowledge these similarities, we naturally begin to relate to others on the human level.  It's like saying "I see you."  "I know who you really are." 

Only from this powerful place of perspective can we start to experience true Empathy—the kind that transcends our roles, differences, and disagreements.  The kind that empowers instead of enables.  The kind that becomes a Force of Nature.

However, rising above the clouds is just the first step.  Next, we have to stay there.  

STEP 2: STAY ABOVE THE CLOUDS

So how can you stay above the clouds throughout the deposition?  By showing up as a human being, not in any particular role. 

Although roles provide convenient shortcuts for human interaction, they severely limit the range of emotions and experiences that we can have.  As humans we naturally possess a wide variety of skills, strengths, traits, emotions, and characteristics.  When we play a role, we limit ourselves to using only a portion of those traits.  This is like a painter with a palette of beautiful colors who restricts himself to painting with only black and white.

Roles tell us all the ways we're different from everyone else.  Roles tell us to be fearful and to protect ourselves.  Roles remind us that terrible fates await us if we fail to perform them correctly.  Roles create pictures in black-and-white instead of color. 

So why not check your roles at the door? 

As a practical matter, it's very difficult to bring your roles to depositions anyway.  One question may elicit the role of Employee, the next may call for scripts of the Parent, Spouse, Manager, Executive, Drop Out, Deacon, Coach, or Criminal.  Of course, throughout the deposition, you will also be preoccupied with your role as Defendant and would-be Villain. 

Shuffling between scripts becomes exhausting because we are weighed down with the characteristics, expectations, demands, judgments, needs, fears, and attachments of each role.  It's like having lots of extra voices in your head telling you what you "should" think, feel, and say.  It's a jumbled, noisy mess.

In order to stay above the clouds throughout the deposition, we must shed this extra weight or risk descending back into the storm.

And believe it or not, when you let go of your roles, you don't lose anything important.  In fact, the opposite is true.  You now have an entire palette of colors to paint with!  You still have your memory, your relationships, and your responsibilities.  Only now, you have the ability to experience the entire spectrum of human emotions and bring your whole self to the deposition.

Once we can learn to stay above the clouds during the deposition, we are ready to become a Force of Nature.   

STEP 3: BECOME A FORCE OF NATURE

In nature, when there are two competing forces, the stronger will overpower the weaker force until equilibrium is established.  Because a vortex is fueled by differing conditions (cold, dry air from above - warm, humid air from below), once equilibrium is restored, it naturally stops spinning. 

Notice the word "naturally."  The earth doesn't have to try to stop the vortex.  Rather, the vortex stops effortlessly once conditions are balanced.  The "stronger" force doesn't beat the "weaker" force into submission, imprison it, banish it, shame it, or blame it for all the destruction it caused.  Instead, the two forces merge and become one

So once you rise and stay above the clouds, Step 3 isn’t really a “step” at all.  It’s a result.   

Here's the real secret about Empathy that no one talks about.  It's naturally effortless.  Just as in nature, when conditions are right, Empathy naturally occurs.  Remarkably, once you've let go of the sandbags of your roles, Empathy is your natural state—not a way of feeling, not something you have to do, but a way of being.  And when you become Empathy, you become a Force of Nature

Note: If you feel like you are trying to have Empathy, you’re working too hard.  Go back and repeat Step 2. 

Plus, when conditions are favorable for Empathy, they are unfavorable for the types of emotions that make you look or act like a Villain: defensiveness, fear, anger, annoyance, frustration, shame, self-pity, and all forms of insecurity.  See how that works?

Empathy simply cannot coexist with these negative emotions.  

Instead, your words and actions effortlessly conform to your Empathetic state of being.  You naturally speak kindly, demonstrate compassion, and radiate an authentic peacefulness.  As you can imagine, when confronted with a Force of Nature this powerful, an attorney (and by extension, a jury) will have a difficult time viewing or painting you as a Villain.  You just won’t fit the part.

Empathy, then, is the ultimate deposition superpower—the only Force of Nature truly strong enough to diffuse the Victim-Villain Vortex.

FINAL THOUGHTS

If you haven't noticed by now, this article is about much more than depositions. 

In fact, our goal for this series has been to provide you with tools you can use in your daily interactions with friends, family, co-workers, your church, your community, and most importantly, yourself.  When we transform the way we view ourselves, we have the power to transform every relationship, interaction, and situation in our lives for the better. 

This is our intention for our readers, our profession, the industry we serve, the country we love, and the world that is home to us all.

For more information about Murphy Legal or preparing for depositions, please reach out by calling us at (979) 690-0800 or contact us.

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