Tips for Combating Plaintiffs’ Deposition Tricks: #2 – Low Road Cognition: Your One- Way Ticket to the Ring of Fire

In this 10-part series, we expose some common tricks that plaintiffs’ attorneys frequently use to gain the upper hand during a personal-injury deposition. If you find yourself in the deponent’s chair, here are some tips for recognizing and combatting these tricks so you can stay calm, maintain control, and better protect yourself and your company from costly, unnecessary exposure.

TRICK: Trigger Low Road Cognition for reduced mental clarity and poor decision-making.

TIP: Learn to identify signs of Low Road Cognition and make an Escape Route for quick course corrections.

Last week in Eye of the Storm, we discussed the power of a morning routine to help keep you calm and clear-headed during your deposition, plus a few tricks for hacking some quick life balance if you don’t already have an established morning routine. This week, we’re diving deeper into WHY calm nerves and mental clarity are so critical when giving deposition testimony. In short, our goal is to keep you from drifting from the calm Eye of the Storm into the deadly Ring of Fire.

If you’ve heard Paul or Kelsey speak at a recent conference, you may remember the concepts of “High Road” versus “Low Road” Cognition. But if not, even without explaining it, you can probably guess which “road” it’s best to stay on during your deposition. Here’s a quick recap. Our brains are constantly processing tons of information, both consciously and subconsciously. As long as our brain isn’t detecting any signs of danger, it allows us to think and behave like the evolved, intelligent homo sapiens that we are. BUT, the moment danger is perceived, our super-smart brains shut down all but the most essential physical and cognitive processes to prepare us to fight or flee from the perceived threat. AND it keeps us in this “fight-or-flight” mode until safety is fully restored. Good for keeping us alive. Bad for depositions.

High Road Cognition – In this state, we’re the one in the captain’s chair. Our brains are processing information rationally, and our thoughts are in control of our emotions. When we’re on the High Road, we’re better able to remember, analyze, strategize, and make well-reasoned decisions. Naturally, the High Road is best for giving deposition testimony.

Low Road Cognition – On the other hand, we take the “Low Road” whenever our fight-or-flight response has been triggered by danger. Unfortunately, in the deposition chair, “flight” isn’t really an option, and this lack of escape only speeds up our detour to the Low Road. Once in this state, our emotions have taken control of the ship and are now steering our thoughts and actions directly toward the dangerous Ring of Fire.

Why the Plaintiff’s Attorney MUST Keep You on the Low Road

For a Plaintiffs’ attorney, getting a deponent on the Low Road is better than Christmas morning. Here’s why: If you’ve been triggered into Low Road Cognition, at best you’ll end up sweating, stammering, stuttering, forgetting key names/dates/facts– which makes you look either like an idiot, or like you’re lying about something. At worst, you could end up becoming angry, sarcastic, belligerent, threatening, or event violent–which makes you look like a jerk.

What’s more…it’s all on video for the jury to see!

And because juries tend to place blame on “idiots,” “liars,” and “jerks” (regardless of the facts), the Plaintiff’s attorney hopes to get you to the Low Road as quickly as possible. And keep you there. Not only will Low Road Cognition reflect poorly on both you and your company, the Low Road will impair your ability to think clearly, remember details, and anticipate questions, increasing the likelihood you’ll get trapped in a devastating “gotcha” moment.

The Primary Low-Road Triggers

Although many different types of triggers can induce fight-or-flight mode, Plaintiffs’ attorneys are skilled at using Aggression, Confusion, and Humiliation for maximum effect. We will be discussing specific tactics and tips for these triggers in our upcoming newsletters, beginning next week with Aggression.

But before we dive into the specifics of this unholy Low Road trifecta, we need to address the general signs and symptoms of Low Road Cognition to help you recognize when you’ve been blown off course. That way, you can locate your Escape Route and make course corrections to help you steer clear of the Ring of Fire.

How to Tell if You’re on the Low Road

Once you’re in the witness seat, you, and you alone, must take responsibility for your thoughts and feelings in order to maintain High Road Cognition – regardless of what anyone else says or does. Vigilant self-monitoring will help you identify the physical and emotional symptoms and sensations you may experience if you’ve been triggered.

Physical – Under stress, our bodies start preparing for fight or flight and will automatically begin displaying certain physical symptoms that can alert you to oncoming Low Road Cognition. These physical symptoms could include:
increased heart rate sweaty palms increased general perspiration increased/sudden need to use the restroom shortened breath
nausea tightness in chest frown/pursed lips tight jaw furrowed eyebrows/forehead

Emotional – When we pay attention to them, our emotions can tell us a lot. In fact, once triggered, we will start experiencing emotions subconsciously before our brains even notice them consciously. So even if everything else appears generally calm on the outside, you could be headed toward the Low Road if you start feeling emotions like:
annoyance (even mild) anger
embarrassment frustration
fear defensiveness
confusion / foggy-headed
any kind of hostile or violent impulse
Of course, when you’re in the already stressful deposition atmosphere, REMEMBERING to notice your physical and emotional sensations is more difficult. This is why having an Escape Route is especially important.

Charting Your Escape Route

Your attorney should be very familiar with the negative effects of Low Road Cognition. Along with preparing you for the technical points of the deposition, your attorney should also work with you help you prepare your Escape Route for handling emotional triggers as they arise.

Build Your Confidence – Before the deposition, know the facts of the case–or at least your part in it–backwards and forwards. No matter how mundane the facts, or how well you think you already know them, take time to review all relevant names, dates, and other information that you might be questioned about so you’ll have confidence from the beginning. And remember, you don’t have to know everything either. Clarity on what you DON’T know can increase confidence by setting parameters on what you will and won’t answer.

Know Your Why – Next, as we discussed last week, get clear on your “why,” both personally and professionally. Why you do the job you do. Why it’s important. Why you love it. Who you do it for. This helps you stay focused on the big picture and maintain perspective throughout the deposition. A strong “why” and a big enough perspective is the quickest shortcut back to the High Road.

Identify Your Touch Point – The next tip may sound a little strange, but stick with us. As we all know, no matter how well we prepare, the best laid plans can fall by the wayside when we’re under pressure. And when you’re in a deposition, once you’re triggered, it’s hard to notice that you’re triggered. So here’s what you do. Before the deposition, identify an object– a pen, a notepad, a ring or watch you’re wearing, etc.–and make that your “touch point.” Whenever you see or touch that object, check in with your physical and emotional state. Yes, it sounds like it would be distracting, but in reality, it only takes a fraction of a second for our in-skull supercomputers to do a full-body scan and process the results. We just have to remember to remember.
Reclaim the High Road – If you notice any of the Low Road indicators, first: please don’t panic. More importantly, remember that you didn’t do anything wrong! Anyone–no, everyone–is likely to become triggered during a deposition. Here are a few tips for sailing back to the High Road:

Breathe – Oxygen is critical for High Road Cognition. One of the first things happens in fight-or-flight mode is that our breathing becomes shallow. A few deep breaths will start signaling your brain and body to relax.

Smile – Just as our emotions can start giving our body distress signals before we even realize it, the same thing is possible in reverse. When we smile, we actually send calming signals to our brain that everything is okay. That we are safe. Upon receiving these physical “safety” signals, your brain will then begin sending corresponding signals to the rest of your body, which will in turn begin relaxing. And (because smiling isn’t always appropriate during a deposition) fortunately, you don’t have to flash a big smile, or even grin. “Smiling” can be as simple as relaxing your forehead, unclenching your jaw, and very slightly raising your cheekbones. We promise, you’ll look authentically pleasant…not crazy.

Slow Down – Purposefully slow the pace of your answers. This includes both increasing the amount of time before your answer, and (very slightly) slowing your rate of speech once you begin speaking. As an easy way to remember, after you’ve been asked a question, even if you know what you plan to say, count backwards from 5 (-4-3-2-1) before beginning your answer. Even small amounts of additional time give your brain and body a chance to catch up, making it more likely that you’re answering with purpose and control, instead of simply reacting to a trigger.

Take a Mindfulness Micro-Break – Check out last week’s article for our Bonus Tip on Mindfulness to give your brain a quick rest from whatever it’s stressing out about.

Take a Real Break – And, of course, if you need to, you can always ask for a short break from the deposition. No matter how much it may feel like an interrogation, you’re not a prisoner. If your attorney hasn’t already noticed that you need a break, he/she will definitely support you after you request it.

Low Road Cognition can quite literally make us “lose our minds” when we enter fight-or-flight mode. By learning to identify signs of Low Road Cognition and charting an Escape Route, you can successfully avoid the Ring of Fire by navigating back to High Road Cognition, both in depositions and in all areas of life.

For more information about Murphy Legal or preparing for depositions, please reach out through our website or call us at (979) 690-0800.

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