Tips for Combating Plaintiffs’ Deposition Tricks: #6 The Fog of Confusion (Part 1)

TRICK: Induce Low Road Cognition with the Fog of Confusion.

TIP: Plan Ahead.

Welcome back to our 10-part series exposing common tricks used by plaintiffs’ attorneys in depositions and what you can do to prepare for them. So far, we’ve been focusing on the importance of maintaining “High Road Cognition” in order to best represent yourself and your company throughout the deposition. We’ve also discussed two methods, Aggression and Humiliation, that can quickly reroute you to “Low Road Cognition” if you’re not on your toes.

This week we’re moving on to the third and final tactic in our Low Road trifecta: Confusion. And because Confusion can be induced in many different ways, we’re going to break down the topic of Confusion into multiple parts. This week we’ll discuss how you can Plan Ahead to avoid some common tricks.


If you’ve ever driven through heavy fog, you know how disorienting and dangerous fog can be. And when we humans become confused, we tend to act a bit…erratically. Some people may brake suddenly, slow to an unsafe crawl, or stop altogether. Others frantically flip on their high beams only to become blinded by the glare. Others might anxiously blast on the windshield wipers or hypnotically tailgate the car in front of them. Still, there are other folks who, despite the limited visibility, impatiently proceed just as they would in normal conditions without adjusting their speed or other driving behaviors. What a mess!

Likewise, when our brains become foggy with confusion, reactions tend to be similarly erratic and can vary widely from person to person. For some, confusion induces fear and paralyzing insecurity. Others might experience anger, annoyance, embarrassment, or frustration. Some people become hopelessly sleepy as their brains seek to escape the confusion, while others experience a kind of energetic anxiety as they attempt to reestablish clarity. And others, desperate for guidance, will blindly follow the brightest light—or the loudest voice—in the room (more on this later).

Believe it or not, these reactions are all forms of the fight-or-flight response that we discussed back in Week 2. This is because due to the vulnerability we experience when we are confused or disoriented, our brains actually perceive mental confusion as a physical threat to our lives. As a result, Confusion is another easy path to Low Road Cognition among deponents. Here are some of the ways plaintiffs’ attorneys induce the Fog of Confusion and tips to help you Plan Ahead to stay on the High Road.


Attorneys can induce confusion in deponents in countless ways. This week, we’ll introduce two of the most basic Confusion tactics that can take you by surprise if you’re not prepared.

Tactic No. 1: The Blood Sugar Game. Let’s begin with the low-hanging fruit, and the only Confusion tactic that deals with the body along with the mind. Fortunately, it’s also the easiest trick to prepare for and prevent.
The Goal: To make your blood sugar take a deep dive around lunchtime, thereby decreasing your overall mental clarity, increasing your levels of impatience and frustration, and possibly inducing emotional outbursts.
Who’s at Risk: Everyone, especially folks who are used to eating on a regular schedule, people with certain medical conditions, and anyone prone to becoming “hangry.”
How It Works: The attorney “baits” you into skipping lunch. Seems simple enough to avoid, right? But consider this— the attorney valiantly announces to the whole room that he “never takes lunch” so he can push through and finish quickly so that everyone can “beat the traffic” and “get home to their families sooner.” If you find yourself in this situation, you’ll most likely succumb to the social pressure and agree. Trust us.

Tactic No. 2: Lawyer Shenanigans. Okay, yes – technically ALL the tricks we’re exposing in this series could be labeled “Lawyer Shenanigans.” But when lawyers go “lawyerin’” they can create additional confusion for deponents…especially when they do it on purpose.
The Goal: To break your concentration or overload you with information to induce confusion.
Who’s at Risk: People who have never given testimony before, are new to depositions, or are generally unfamiliar with legal jargon and procedures will be most vulnerable to these Confusion tactics. That being said, anyone can fall prey to Lawyer Tricks depending on the situation and level of severity. In fact, if the attorney knows you’re a seasoned deponent, this is an area where he can “kick it up a notch” without appearing too obvious.
How It Works: The attorney uses (or overuses) legal rules and procedures to make you feel discombobulated and overwhelmed.
Objections. During your testimony, the attorney may listen to your answer–or even interrupt you–to object that your answer is “nonresponsive” in some way. Not only does this break your concentration and interrupt the flow of your answer, it can also be highly confusing to hear that your thoughtful and carefully considered “response” is somehow not a “response” from the lawyer’s perspective. This can leave you feeling defensive or unsure of yourself, perhaps even feeling the need to jump back in and further explain yourself or argue. (Hint: Don’t do that.)

The White Out. This is a famous trick for confusing anyone, whether you’re giving testimony in a deposition or at trial. Here, “white out” means paper. Lots and lots of paper. In this trick, the attorney will introduce an excessive number of exhibits. Once you’re overloaded with all the various documents in front of you, the attorney will ask questions about all of them, probably bouncing around between exhibits. As you dig through the paper in front of you, constantly referencing a dierent document, it’s easy to become frustrated and lose your train of thought.

These tricks are primarily designed to induce confusion by taking advantage of your physical body and lack of familiarity with your physical surroundings. Luckily, it’s easy to keep your bearings with a little advance planning.


As any driver knows, preparation is the key to safely navigating the hazards that inevitably arise on the route. To stay safely on the High Road, remember to Plan Ahead:

Bring Snacks. Just like preparing for any long haul, it’s best to be ready for anything. To avoid the Blood Sugar Game, bring a few snacks that you can eat quickly during restroom breaks. (You can bet the plainti’s attorney will.) This sounds simple but can really be a lifesaver if you’ve gotten pressured into skipping lunch. The best snacks for concentration and focus are nutrient-dense, include protein and fat, and provide an adequate supply of glucose – but not so much that you end up with a sugar crash. And, of course, they need to be easy to pack and eat on the y. Prepare yourself for the day by including a mix of snacks such as nuts, seeds, canned tuna, cheese sticks, blueberries, carrots, beef jerky, protein bars, chips made from whole grains, sweet potatoes, kale, broccoli, beans, and egg whites. Even if you don’t end up using the snacks, it’s better to be safe than sorry.

Familiarize Yourself with the Terrain. Driving in fog isn’t nearly as scary when you’re already familiar with the route and the landscape. And in depositions, Lawyer Shenanigans aren’t nearly as confusing when you know they’re coming. If you’re new to depositions, review the rules and procedures regarding objections and exhibits with your own lawyer ahead of time. Together you can create a plan of action for handling objections and organizing excessive exhibits. Your lawyer should also have a good idea of what exhibits will be used. If so, spend some time reviewing them before the deposition so you’ll feel more comfortable (and less disoriented) while dipping back-and-forth.

And, as always…

Prepare Your Escape Route. Although it’s impossible to prepare for every possible Confusion tactic, a thorough Escape Route will help you maintain perspective – which you’re going to need if you nd yourself in the Fog. Plus, the more time you spend planning your Escape Route in advance, the easier it will be to nd your way back to the High Road if the Fog has caused you to veer in the wrong direction.

This week we focused on the Confusion triggers that are the easiest to prepare for in advance, mostly dealing with your physical body, space, and surroundings. Next week, in The Fog of Confusion (Part 2), we’ll advance to some trickier tactics that are specially designed to mess with your mind.

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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