Tips for Combating Plaintiff’s Deposition Tricks #8: The Fog of Confusion (Part 3)

TRICK: Use the Fog of Confusion to Extract False Admissions. TIP: Stay Alert.

For the last two weeks, we have been discussing the dangers presented by the Fog of Confusion and exposing various Confusion tactics plaintiffs’ attorneys might use in a deposition. Until now, however, we have focused on Confusion solely as a path toward Low Road Cognition. Today, we’ll look at Confusion from a different angle.

Although Low Road Cognition is one of the most important dangers to avoid during a deposition, it’s not the only danger. After all, the opposing attorney’s main goal is to get information from you. That’s the whole reason you’re being deposed in the first place. You have information inside your brain that the attorney wants. Or, perhaps more accurately, the attorney hopes that you have information that will hurt you (or your company) and help the plaintiff.

Now, before we begin, this article WILL NOT teach you how to conceal truthful information during your deposition. Period. As we’ve discussed throughout this series, your job is, to tell the truth: good, bad, or ugly. Let your attorney worry about the risks and exposure presented by any “bad” facts you may have.

What this article WILL discuss is actually just the opposite. We’re going help you avoid accidentally lying in response to the attorney’s questions. Think that’s impossible? (I mean, how could anyone accidentally say something that’s not true?) Read on, friend.


Back in Week 6, when we first presented the concept of the Fog of Confusion, we began by discussing the various, erratic ways drivers tend to respond when driving in fog. One common phenomenon is that, in the frantic search for any type of guiding light, some drivers experience a type of hypnotic tunnel vision, becoming ultra-focused on the taillights of the car in front of them. When this happens, the driver is no longer being controlled by the clock, his agenda, his memory, his GPS, or any other external inputs (like street lights and traffic signs). Instead, the driver is now fully controlled by the car ahead and will follow wherever it leads—even, say, over a cliff.

The famous American hypnotherapist, Milton Erikson, was one of the first people to discover that confusion could induce a trance-like state in human beings and was therefore an effective hypnosis technique. This is because confusion makes us hyper-focused as our brains search for clarity in the fog. While our conscious minds are occupied with this confused yet focused attention, our unconscious minds become easily suggestible.

Here’s why. As naturally cooperative creatures, we tend to give people the benefit of the doubt that their words make sense. In situations where you expect to be able to logically understand the subject matter and the language of the person speaking, and you know your answers are supposed to be important, you’re going to pay attention. If the words or meaning become suddenly unclear, you’re going to work extra hard, and give extra focus, to what’s being said. However, this hyper-focused state is like becoming engulfed by fog. And then you just might start looking for some taillights to follow.


Here’s a great example of Confusion Hypnosis in action from one of the greatest movies of all time: A Christmas Story (1983). As you’ll remember, little Ralphie was working every angle he could think of to get his Red Ryder air rifle. To cover all his bases, he decides to visit Santa Clause at the local department store.

The tension mounts as Ralphie and his little brother must wait in the long line to see Santa as the store’s closing time quickly approaches. Ralphie finally reaches the front of the line…only to be met by his own fog of confusion: loud music, screaming children, bad-mannered elves, and a loud, loathsome Santa Clause shouting “Ho, ho, ho” in his face. Paralyzed by the sensory overload, Ralphie can barely remember his name and can no longer remember to ask for his beloved BB gun. As he grasps for his memory, Santa prods him along by asking if he’d like a “nice football.” Ralphie’s muddled brain, grateful for anything concrete, obediently agrees with Santa’s suggestion. He nods and squeaks out the word “football”—even though he doesn’t WANT a football. Ralphie was accidentally lying.

Now, of course, little Ralphie “snaps out of it” just in the nick of time. However, this scenario is a great illustration of the mental cacophony that can induce Confusion Hypnosis, and even scarier, the types of suggestions we might agree to while we’re inside the fog.


As far-fetched as it may sound, deponents end up making accidental admissions all the time. Afterward, in the post-deposition debrief, it’s fairly common to hear a deponent say, “Wait, I never said that,” or “I don’t remember agreeing with that.” Here’s how deponents become susceptible to hypnotic suggestion.

Some of these tactics are the same ones we’ve already covered in our confusion discussion, so we’ll just review them briefly. First, the attorney might start by getting you a little off-balance with some Lawyer Shenanigans. Then Whac-a-Mole tactics will be used to induce hyper-focus in an effort to follow the questions being asked. Remember, Whac-a-Mole tactics employ verbal tricks, such as overly long sentences, unfamiliar words, and non-sequiturs. This ties up the logical, conscious mind and frees up your unconscious mind for a direct conversation with the interrogator.

In addition to Whac-a-Mole tactics, attorneys use a couple other tricks for inducing Confusion Hypnosis. However, instead of inducing hyper-focus, these tactics are designed to make your conscious mind “check out.” The effect is the same, nevertheless.

Lulling – True to its name, Lulling is when an attorney asks a long string of easy, boring questions. After you have been lulled into a stupor of boredom, your conscious mind may be tempted to disengage. When this happens, your unconscious mind becomes more open to suggestive questioning.

Pacing – Pacing is similar to Lulling. Like lulling, pacing usually involves a long string of relatively easy questions, but also includes the rhythm and speed of the questioning. Think of it like a ping-pong match. Question, answer, question, answer, ping, pong, ping, pong, ping, pong… (perhaps slowly speeding up as the questioning progresses). Once you’re in the flow of the questions, you form an unconscious expectation for maintaining that pace, making it more likely that you’ll unconsciously chose a quick wrong answer over a longer, better answer that breaks pace.

Plus, with hypnotic confusion, the format of the question is critical. To avoid “waking up” your conscious mind, the attorney will ask questions with the “correct” answer (the answer he wants) embedded in the question.

Example: Instead of asking, “Were you speeding just before the collision?” the question will be phrased as a suggestion: “So it’s possible that you were speeding just before the collision.”
See the difference? The first question (“Were you speeding…?”) is open-ended, forcing your conscious brain to reengage in order to make a yes/no decision. The second question isn’t a question at all. It’s is a clear suggestion that your unconscious mind might hypnotically agree with while your conscious mind is still lost in the fog. The attorney will phrase each question with the goal of making you say “Yes,” consciously or unconsciously.


When driving in fog, one important safety tip is to avoid using the cruise control. The same is true here. All the tactics mentioned above are simply ways of encouraging you to set your brain on cruise control. The key to avoiding Confusion Hypnosis is to make sure your conscious mind remains engaged, never becoming so paralyzed or preoccupied as to yield control to the unconscious mind. To do this, Stay Alert.

And here’s the good news: the tips you’ve already learned throughout this series can help you Stay Alert without needing to memorize any additional info. Here’s a brief recap:

Keep Your Tank Full. Prevent your blood sugar from taking any unnecessary dips by bringing healthy snacks you can eat on breaks. This will keep your brain and senses sharp and prepared for the mental, emotional, and psychological rigors of the deposition.

Be Mindful. The mindfulness techniques we discussed in Week 1 and Week 2 will help you avoid the temptation to put your brain on autopilot (or help you turn OFF autopilot, if needed).

Stay Present. It’s easy to get distracted thinking about previous questions and answers, or obsessing over the attorney’s strategy or reasoning for asking a particular question. Likewise, you can become complacent thinking you know what’s coming next. Remember to make a conscious decision to take every question at face value.

Reduce Your Speed. In foggy conditions, it’s always a good idea to give yourself additional reaction time by slowing down. Slowing the pace of your answers, and allowing longer pauses before your answers, achieves two things. First, it gives you additional time to think, engage your mindfulness techniques, and respond consciously. Second, it interrupts any Pacing that the attorney might be attempting. If YOU set the pace, you won’t be tempted to fall in line with the attorney’s pace, and therefore less suggestible because your conscious mind will remain engaged.

Know Your Facts. Okay, yes, we’ve covered this a lot, but having a solid factual foundation is the best way to Stay Alert. When you’ve mastered the facts of the case, your conscious can better assist you by shooting up a warning flare when you start feeling foggy.

Admit When You Zone Out. Sure, it’s a little embarrassing for any adult to admit they’re not paying attention. However, if you don’t admit it, you’ll be more tempted to agree with the attorney’s question. This happens all the time in social settings. When we’re unsure of what answer is required, we’re more likely to say “yes”–even if we didn’t fully hear the question. Because obviously, if we say “no,” we may be forced to defend our position…which we’re unsure of…because we weren’t listening. So we opt for “yes,” which we perceive as beneficial because (1) it keeps the conversation moving and maybe we’ll figure out what’s going on, and (2) it will get us out of our confusion more quickly and maybe no one will ever notice that we zoned out in the first place. However, that natural tendency will cause problems and lead to accidental admissions, which is exactly what the attorney is hoping for. The Fog of Confusion can lead to tunnel vision, which can become full-blown Confusion Hypnosis in certain situations. When we Stay Alert and lay off the mental cruise control, we have a much better chance of giving every question our full, conscious attention and having the best deposition experience possible.

This concludes our discussion of Confusion. (Whew!) Just remember, confusion can pop up at any time during the deposition. To avoid succumbing to Low Road Cognition or Confusion Hypnosis, just review the three steps for combatting these dangers and safely navigating the fog. First, in advance of the deposition Plan Ahead to set yourself up for success. Second, throughout the deposition, Proceed with Caution and use your Escape Route to avoid any Low Road triggers. Finally, Stay Alert to ensure that you provide the thoughtful, accurate, and truthful testimony you were called to give.

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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