In this 10-part series, Tips for Combatting Plaintiffs’ Deposition Tricks, 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: PUSH you down into the Undercurrent of Humiliation to induce Low Road Cognition. TIP: Plant Your Feet to maintain High Road Cognition.
Last week, we discussed ways that plaintiffs’ counsel can PULL you down into the Undercurrent of Humiliation. Now let’s address that threat from the opposite direction, shall we? This week’s tip teaches you how to identify when an attorney is attempting to PUSH you down into the Undercurrent, and how to Plant Your Feet to keep your head above water.
Remember, the goal is to maintain High Road Cognition throughout your deposition. When you slip down into Low Road Cognition, you’re more likely to become emotionally triggered and say/do things that could give an unfavorable impression of you and your company to the jury. Humiliation is one of the main ways, along with Aggression and Confusion, that plaintiffs’ lawyers use to trigger deponents into Low Road Cognition.
In contrast to PULL Tactics, PUSH Tactics create the false sense of a superior force “above” you, pushing you down into the Undercurrent of Humiliation. PUSH Tactics are specifically calculated to induce embarrassment by creating the impression that you have violated a professional or moral standard for which you should feel guilt and shame.
Here, “should” is the key.
Essentially, plaintiff’s counsel will establish herself as a moral authority through a line of questions. Once her moral authority has been established, she now has the power to humiliate you if your answer is inconsistent with her framework. When attorneys are effective at creating this moral framework, the PUSH of the weight of embarrassment, guilt, and shame can literally cause people to shrink down, lower their eyes, and cower in their chairs. If you feel this sensation, you’re being pushed into the Undercurrent.
PUSH tactics are a little trickier than PULL tactics because they’re more difficult to recognize and prepare for. PUSH tactics can take you by surprise because they’re not always obvious from the questions being asked.
Example No. 1 Let’s say you’re a Safety Director and being questioned about your hiring practices. Plaintiff’s attorney may take you through a long series of routine questions about the various documents you collect on a prospective driver. You’re feeling great about the questions because you know your records are fully in compliance with federal regulations. Then she raises her eyebrows and asks: “So, in hiring professional drivers that share the road with millions of other people, including mothers, fathers, and children, do you mean to tell me that your company policy is to collect only the bare minimum information required under the regulations??”
Through this loaded question, she has implied, not only that she has superior knowledge over you, but that there is some kind of greater standard that your company should have been following. Even for experienced deponents, this type of question would make anyone want to crawl under the table.
Example No. 2 If you’re a commercial driver, you might be presented with a seemingly innocent question, like: “What time did you arrive at work the morning of the accident?” You answer, “Eight o’clock.” To which the attorney responds with a shocked look on her face, a derisive laugh, and a sarcastic, condescending tone in her voice when she responds, “So you only allowed yourself one-and-a-half hours to complete your entire pre-trip inspection??” Wham.
Regardless of whether you actually allowed a proper amount of time for your pre-trip, or whether an hour-and-a-half is common practice among your peers, in that moment, she has asserted superior knowledge and moral authority. She has made it appear that you’ve done something unprofessional and irresponsible. She may have made you question your own conduct and your own abilities.
In both of the above examples, the attorney asking the question might have NO IDEA what the real standards are. She might literally have learned about hiring practices or pre-trip inspections that very morning. That’s the power of PUSH tactics.
Irrespective of the attorney’s knowledge (or lack of it), these types of questions can leave you feeling embarrassed and ashamed–even if just for a split second–that perhaps there was some standard that you didn’t know about or comply with.
And who could blame you? Once an attorney has established herself (say, through Power Grab techniques) as the authority in the room, it’s easy to subconsciously submit to her version of factual or moral “reality” as correct. This is when you need to Plant Your Feet.
Plant Your Feet
After you’ve been hit with the surprise attack of a PUSH tactic, it’s time to Plant Your Feet to keep from getting carried away by the Undercurrent. To do this, stand your ground and dig your heels in. Here’s how:
Stay Calm. PUSH tactics are powerful because the unspoken implications of failure within the questions are obvious to both you AND the jury. Even if the attorney’s question is totally bogus, the jury doesn’t know one way or the other. If you get defensive, frustrated, or angry (which is the goal of the question), the jury will take it as confirmation that you indeed fell below some unspoken standard. To do this, remember…
Use Your Escape Route. As with all the Low Road tricks we’ve discussed so far, the techniques you use in preparing your Escape Route are critical here, too. You must be ready at all times to quickly engage your breathing and mindfulness techniques to stay calm and avoid reacting–even with a video camera in your face. Moreover, building confidence in your facts, the applicable legal/regulatory standards, and your role in the case will help you stand your ground in the face of a PUSH tactic. And once you’ve built your confidence…
ANSWER with Confidence. Think of it as “quiet” confidence. Remember, the plaintiff’s attorney is expecting to fluster you with the PUSH question, hoping to make you give a long, rambling, defensive-sounding answer. You can actually disarm, or perhaps even fluster HER by confidently providing a calm, slow, brief, pleasant response. For example, in Example 2, by confidently answering, “Yes” with no additional commentary, you’re communicating that you feel good about your conduct and have nothing to hide or be ashamed of. And beyond your words, remember…
Mind your Body Language. Even small movements like fidgeting, sighing, pursed lips, or looking down or off to the side can communicate guilt, embarrassment, or a lack of confidence in your answer. So in the example above, if you answer with a pleasant look on your face, while maintaining eye contact, you will convey confidence in your answer in a way that makes you look trustworthy and sincere. And speaking of being trustworthy…
Always Tell the Truth. No matter what the facts are, don’t lie. Before going into the deposition, your attorney should work with you to hash out the facts and address any that you wish were different in some way. Don’t worry about whether a fact is “bad” or “good”–that’s your lawyer’s job. It’s your job to tell the truth. And on that note, don’t guess either. If you don’t know an answer, say so. No matter what the answer is…good, bad, “yes,” “no,” or “I don’t know,” a confident answer will make the jury confident in you.
Bonus Tip: Whatever you do, if you don’t know an answer, PLEASE don’t say “I don’t recall.” This phrase has simply been far too lampooned in national news and reeks of lying politicians and shady businessmen. “I don’t recall” actually creates the impression of being untrustworthy–as though you’re daring the attorney, or the jury, to catch you in a lie. If you don’t know, say “I don’t know.”
And occasionally you might need to…
Reframe (But Only When Necessary). If you can clearly see that the attorney has unfairly framed a question, then you might want to reframe your answer in order to confidently stand your ground. For instance, in Example 1, you might confidently answer, “We did everything required by the federal regulations.” Of course, she will lodge an objection and press you to admit that it was the “bare minimum.” Don’t give her that satisfaction–there is nothing bare or minimum about complying with federal regulations. Dig those heels in. But here’s the caveat: The trick to reframing is to stay calm, cool, and confident. Otherwise, you risk appearing defensive, argumentative, and frustrated. No matter how many times the question is asked, or how many times she objects, stick to your guns and calmly answer the question in a way you can believe in. Let your attorney handle the rest.
The Undercurrent of Humiliation might always be there flowing below the surface, but it doesn’t have to be dangerous. By preparing yourself for plaintiff’s PUSH Tactics, you’ll be better prepared to Plant Your Feet and keep your head above water.
For more information about Murphy Legal or preparing for depositions, please reach out through our website or call us at (979) 690-0800.