Tips for Combating Plaintiffs’ Deposition Tricks: #7 The Fog of Confusion (Part 2)

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

Last week we introduced the Fog of Confusion as a third way deponents might find themselves on an unexpected detour toward the Low Road. (Be sure to check out our article on the Ring of Fire for a quick refresher on Low Road Cognition, and why to avoid it.)

In The Fog of Confusion (Part 1), we discussed the dangers of driving in fog and exposed a couple of Confusion tactics that can create uncertainty through physical and procedural means. Because these tactics are easier to identify and prepare for, we outlined ways to Plan Ahead to prevent confusion.

This week, in Part 2, we’re advancing to…mind games.

Even with the best of plans, if you’re setting out on a long haul, it’s impossible to predict every fog event in advance of the trip. And just like real fog, confusion can appear suddenly and without warning.

Some Confusion tactics aren’t immediately recognizable because, by their very nature, they’re meant to be sneaky—which means they’re difficult to prepare for. In fact, an effective confusion “sneak attack” is specifically designed to make you feel like you’re the only one in the room who doesn’t understand what’s going on. When that happens, it’s time to Proceed with Caution.


1. Whac-a-Mole. Since we’re talking about games today, let’s begin with a classic: Whac-a-Mole. These tactics are subtle Confusion mind games, but they can help lay the groundwork for greater confusion as the deposition continues.
The Goal: To use syntax, vocabulary, and other rhetorical tricks to make you feel mentally unsteady, unsure of what to focus on, and unable to anticipate what might be coming next.
Who’s at Risk: While no one is immune, folks who are highly intellectual, or those with a strong need for control, are more easily disoriented by Whac-a-Mole tactics.
How It Works: The attorney asks a question, or a series of questions, that is hard to follow for some reason. Once your brain is exhausted from the mental gymnastics, you’re more likely to become confused and frustrated going forward.

  • Long Sentences. Use of overly long or complicated sentences, especially with numerous explanatory clauses that separate subject and verb.
  • Jumping Around. Whether you’re being questioned about the facts of the case, or even your own personal background, the attorney may jump around on the timeline, or ask questions out of sequence. This interrupts any cognitive momentum you may have been gaining while answering questions in order and makes you unsure of what might be coming next.
  • Non-Sequiturs. We use this term loosely here, but this can refer to any rhetorical trick that leaves your mind working on a portion of the question, or a previous question, while the rest of the questioning continues. For example, if an unfamiliar vocabulary word is used, you brain might get stuck trying to figure out that word while the rest of the question is being asked. Likewise, you might be answering a string of questions about your educational background, then suddenly confront a question about a company policy, causing you to ponder connection between the topics as the questioning about your education resumes.

2. The Twilight Zone. Here’s where we get into crazy land. Attorneys love, love, love using these Confusion tactics to seriously mess with your mind.
The Goal: To induce insecurity or frustration through confusion. When effective, they can make you doubt the facts and your memory as you question the validity—or even the existence—of the testimony you’ve already given.
Who’s at Risk: Anyone who’s new to depositions, shaky on the facts of the case, easily suggestible, or lacking in confidence.
How It Works: The attorney asks questions that you’ve already answered or otherwise makes you unsure of your previous testimony. This can create annoyance and frustration as you’re forced to repeat or explain yourself in a way that seems unnecessary. If it feels like you’re in the Twilight Zone…you are.

  • Looping. Quite simply, “looping” means asking the same questions or addressing the same topics over and over. Attorneys do this because, for whatever reason, they didn’t quite get the “right” answer (the answer they wanted) on the first go-round. Remember, they’re trying to get a clean sound bite to play for the jury. However, fordeponents, looping can be maddening. Even experienced deponents can become irritated and angry when they have to repeat themselves. Others might start doubting themselves and attempt to over-explain or embellish their previous answers.
  • Feigning Confusion. This is perhaps the most sinister of all the Confusion tactics. Why? Because the attorney is trying to confuse you WITH confusion. By pretending to be confused by one of your answers—especially if the concept is relatively simple—the attorney is luring you toward annoyance, anger, and frustration. Then, in response to a request for clarification, you become more likely to answer with sarcasm or visible hostility. If you find yourself thinking, “Why would anyone be confused about that answer? It’s so obvious!” the attorney is probably feigning confusion.

Confusion tactics like these create fertile ground for Low Road Cognition. Like Aggression and Humiliation, the primary goal of Confusion tactics is to make you feel stupid, incompetent, annoyed, and frustrated–except here, in a subtle and indirect manner. Ultimately, the attorney hopes you’ll become flustered to the point of creating juicy video footage, which can later be played for the jury. As we discussed in Ring of Fire, this includes everything from outward annoyance (such as heavy sighs or eye rolls), to incoherent stammering, to physical displays of anger. Our goal is to help you stay clear-headed and on the High Road.


Just like driving in fog, confusing situations can be safely navigated by staying aware of your surroundings and following a few simple guidelines. If you suddenly find yourself in the Fog of Confusion, here are some ways to Proceed with Caution:

Keep Your Eyes on the Road. In foggy conditions, your field of vision is limited, both in front and behind. If you get stuck thinking about something you already passed, or trying to guess what’s too far up ahead, you could zone out of the present moment and lose focus. Similarly, in a deposition, it’s not your job to outsmart anyone, obsess about a previous answer, or correctly anticipate every question. You will drive yourself crazy—and end up seriously confused—if you try to out- maneuver the attorney or guess the motivation or direction of each question. Leave the strategy and guesswork to your attorney. And along those lines…

Reduce Distractions. When you’re driving, you don’t need to know where every vehicle on the road is going—just your OWN. Likewise, you don’t have to know where every question is going. In a deposition, you have only one job: to tell the truth. So remember, no matter how weird, irrelevant, non-sequential, or repetitive a question may seem, do your best to take every question at face value. If you free your mind from the clutter of previous questions, it’s much easier to stay clear and avoid confusion. And if you DO get a little lost, no worries. Just relax and…

Ask for Directions. Admit your confusion—there’s no shame! Most people get into trouble because they’re too embarrassed to confess their confusion or admit they’ve zoned out. If your train of thought has derailed, or if you’re confused about a question, calmly ask for it to be repeated, rephrased, or clarified. In fact, once you do this, the plaintiff’s attorney will often work harder to be clear going forward to avoid looking like a jerk or a bully on video. And throughout the deposition…

Reduce Your Speed. As with real fog, patience is critical for navigating the deposition process. Impatience only increases the odds of an unpleasant collision. By moving slowly, being deliberate, and maintaining a wide perspective, you’re more likely to arrive safely at your destination. Be patient with the process, be patient with yourself, and be patient with the plaintiff’s attorney. Use all the tools you’ve learned so far to stay balanced and maintain perspective—it will all be over soon. Avoid putting extra pressure on yourself while remembering facts or searching through exhibits, or stressing out over “dead air” before your answer. Answer each question slowly, calmly, and deliberately, no matter how many times it’s been asked. And, as always…

Use Your Escape Route. Your Escape Route is the master key for reclaiming your High Road Cognition, which is especially important when you’ve become exhausted from playing Whac-a-Mole…or if the Twilight Zone has left you wondering what planet you’re on. A properly executed Escape Route will give you the personal confidence and professional clarity that will help you safety steer through the fog. And as part of your Escape Route, remember, it’s always okay to…

Pull Over if Needed. If the fog is simply too thick to travel safely, it’s best to pull over. If you find yourself in a super-foggy deposition, just ask for a break. Even a short restroom break can provide a much-needed breather, allowing you to regroup, clear your head, and have a brief powwow with your attorney—who will tell you that you are a doing a great job.

Remember, driving in fog can be hazardous, but it’s not a guaranteed detour to the Low Road. When the Fog of Confusion unexpectedly surrounds you, just remember to Proceed with Caution to maintain your High Road Cognition.


We’ve now completed our discussion of the three main triggers of Low Road Cognition: Aggression, Humiliation, and Confusion. Stay tuned for next week when we’ll be discussing…Confusion! (Wait, again!?)
No, we promise we’re not looping, nor are we trying to confuse you with even more Confusion. However, unlike Aggression and Humiliation, Confusion tactics can take you somewhere even more perilous than the Low Road.
Next week, in the Fog of Confusion (Part 3) we’ll discuss the dangers of confusion hypnosis, expose some additional tricks, and teach you how to Stay Alert to avoid making harmful admissions during your deposition.

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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