Over the years I’ve attended a lot of depositions. Not only as the taking and defending attorney, but also as a witness and as a client. And I’ve noticed over and again an interesting phenomenon. When the deposition is over, the people that were in the room often have a sort of inexplicable, Venn-type diagram of disparate recollections about what actually happened. There is significant overlap in recollections, yes, but also very significant differences.
A few examples: I’ve taken depositions where I thought I absolutely crushed it, capturing every piece of critical testimony that I needed to win a case. Only to lose that sense of elation when I read the transcript and saw that the testimony didn’t reflect what I thought I’d captured. (Spoiler alert: we can help).
Another example: As a GC managing litigation at public and private companies, I often didn’t have the time to attend or read transcripts of the depositions taken or defended by outside counsel. When I’d inquire, I’d often get glowing reports back from counsel telling me how great things went. Sometimes they were right. Other times, I’d review the transcript and think, “Not so great.” On the flip side, I’d hear from a dejected corporate witness that thought things had gone horribly awry, only to read the transcript and conclude: “Hey, not so bad!”
Over and over, in dozens of conversations in taxis or restaurants or over a beer at the airport, I’d be shocked at what my co- or in-house or opposing counsel recalled about the deposition that I blatantly failed to. Their impressions of what was discussed and how well or how poorly a deposition went often differed significantly from mine. And for years, I would attribute this to puffery or pessimism or wishful thinking or inattention or (frankly) the Dunning Kruger effect. But now, as my team has continued to study depositions, I've come to suspect that something else is at play here.
The mind is a strange place. If you’ve taken depositions, then you’ve seen it too. Multiple people can be in the same room at the same time, and yet be in radically different places. So, what’s going on? My own suspicion is that the phenomenon has something to do with the fact that depositions (at least those that you really care about) require intense and sustained concentration. And minds under stress capture and fail to capture information in interesting ways.
Which brings me to the game of chess. I think chess and depositions have some characteristics in common. In many ways, playing chess at a professional level and taking depositions at a professional level appear to be profoundly sedentary activities. Both involve people sitting almost motionless at tables across from other people. And yet, both are hypercompetitive enterprises that are intensely physical.[i][ii] According to Robert Sapolsky[iii], Professor of Neurology at Stanford University, elite chess players can burn 6000 calories in a single day during tournaments. Why? Because prolonged periods spent focusing on difficult tasks spark a whole series of complex physiological activities that burn calories. A lot of them. In both depositions and in chess, thinking pays off. But from a biological perspective, it’s clear that you also pay to think. And the currency in which you pay is glucose.[iv]
“The phrase ‘pay attention’ is apt,” says Daniel Kahneman in his excellent book, Thinking Fast and Slow. During periods of continuous mental exertion, “you dispose of a limited budget of attention that you can allocate to activities, and if you try to go beyond your budget, you will fail.” In the context of depositions, I apparently fail to notice things all the time.
For those in the trenches, you know that successfully taking important depositions requires a tremendous amount of preparation, effort and attention. As does defending them. As does testifying under oath and transcribing them.[v] So much is happening during a deposition that it’s impossible to track more than just a small portion of it.[vi] The rest of it, even the surprising things, even the many things that are glaringly obvious to others . . . you’re going to miss entirely.
Those of you that actually suffer from the Dunning Kruger effect probably don’t believe this (we know you don’t know who you are). If you don’t, I’d urge you to watch this video, and see if you have the skills necessary to accurately count the number of times the players wearing white jerseys pass the ball. Go ahead. The video is short. Watch and count and don’t cheat and read ahead. I’ll wait.
Done? Are you surprised? If you’ve not seen this visual experiment before, and if you legitimately tried to count the number of times the white jerseys passed the ball, then you probably didn’t notice the gorilla in the room. Don’t beat yourself up about it; science tells us it’s not your fault. As Kaufman puts it: “Intense focusing on a task can make people effectively blind, even to stimuli that normally attract attention.”
Here's what I know: gorillas are hiding in most depositions. And look, we track what we can. But the reason that no two people will remember the same things is because in depositions, as in life, we’re often tracking different things. The trick is to realize that our memory is faulty and that if we don’t take steps to capture the tsunami of information we missed in the first round, we’re going to run into trouble. We’ll miss opportunities as well as weaknesses, and we’ll fail to compensate accordingly. And that has consequences for our cases and our clients.
Moneyballing Testimony
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Does your opposing counsel object slightly more often, across multiple depositions, when certain topics are discussed? Or when certain types of exhibits are introduced? Maybe those topics make them nervous. Maybe that’s a pressure point you can exploit, if you know about it. Would you like to track the vacillating emotional states of attorneys and witnesses and correlate those swings to topics or exhibits? Maybe you want to make an educated guess about what your opposition will do at trial? If winning cases interests you, consider giving us a call. We’ll be happy to give you a sneak peek at our technology.
Notes
[i] Chess is classified as a sport by the International Olympics Committee (International Sports Federations Recognized by the IOC (olympics.com)). The litigation community needs to lobby to have the IOC recognize depositions as a sport, too. Let’s get on that people!
[ii] Profoundly unscientific, semi-gross anecdote. I can recall many, many times at depositions or at trials where lawyers and witnesses have removed their suit jackets or blazers during breaks only to reveal that they’ve sweat out their shirts around their armpits. The last time I testified at a trial, I recall the same thing happening to me. Charitably, I’d like to think that I was just thinking/working very hard, burning calories. You know, like athletes. Less charitably, I might just be a sweaty person. Regardless, I now roll myself in antiperspirant like I’m a Shake-n-bake chicken prior to heading into depositions and trial.
[iii] Dr. Sapolsky is the John A. and Cynthia Fry Gunn Professor of Neurology and of Neurosurgery at Stanford University. And his work on this and other topics is fascinating. If you’d like to get a flavor of his work, including some fascinating intersections between human biology and law, I invite you to watch the first lecture for his class: Introduction to Human Behavioral Biology. Stanford and Dr. Sapolsky have been kind enough to share it on YouTube.
[iv] Chess grandmasters can lose 10 pounds and burn 6,000 calories just by sitting. CNBC.com, September 22, 2019.
[v] Hey, stenographer friends: please know that we know that the studious transcription of depositions is a tough job. We appreciate you. And we promise to be better at not talking over people during our depositions. In return, please don’t key our cars. XOXOXOX.
[vi] Formulating and deploying well-phrased questions (questioning attorneys); reviewing, considering and testifying on the contents of documents (witnesses); transcribing complex medical, technological, pharmaceutical terminology in realtime (professional stenographers); detecting under intense time pressure (i.e., before a witness answers an objectionable question) whether a question is in fact objectionable (defending attorneys) form objections are waived if not objected to in the moment; pinning down a professional expert witness in the face of evasive answers (deposing attorneys); and reading body language and facial expressions for “tells” like pros in the World Series of Poker (everyone), among many, many others. Hard work.