Avoiding the Tentacles of Danger

In our previous article, “The Reptile Evolves,” we highlighted how defense attorneys, the insurance industry, and corporate legal departments have often misunderstood the purpose of the reptile theory approach. We also discussed how the reptile theory has been rebranded as the Edge. Regardless of what the approach is called, the psychological principles being utilized by plaintiffs’ attorneys have remained the same.  

At its core, the power of the Edge approach comes from “spreading the tentacles of danger.” Jurors must be made to believe they are “guardians of the community’s safety.” Therefore, deposition questions must go to foreseeability because foreseeability defines a defendant’s duty. Once this duty is determined, Edge attorneys must establish their clients were foreseeable victims, and the defendants violated their duty. 

To assist in spreading the tentacles of danger, the deposition approach entails getting witnesses to agree to safety-or-danger statements that heighten the defendants’ duty to the public beyond a level of reasonableness. Once witnesses are locked into inflexible safety-or-danger positions, plaintiffs’ attorneys highlight case facts that show the defendants violated their prescribed duty of care.

Over the years, this deposition approach has proven to be devastating to witnesses. However, once you understand the psychological principles being applied, this approach becomes less mystical and easier to prevent. In this article, we examine the psychological attacks plaintiffs’ attorneys use in depositions to obtain harmful testimony from defense witnesses. 

The four devastating psychological weapons used against witnesses in depositions are: 

• Confirmation bias. 
• Anchoring bias. 
• Cognitive dissonance. 
• The hypocrisy paradigm. 

Phase One: Confirmation Bias

Confirmation biases are errors in witnesses’ information processing and decision-making. The brain is wired to interpret information in a way that confirms existing attitudes or beliefs, while simultaneously rejecting information that counters these attitudes or beliefs. This cognitive bias appears during depositions, as witnesses often struggle to say “no” or disagree with a line of questioning because of emotional and psychological challenges. Edge attorneys rely upon these cognitive challenges to entice witnesses into a dangerous agreement pattern.  

One component of confirmation bias is cognitive schemas. Cognitive schemas are mental organizations of information that help guide individuals’ behaviors, attitudes, and beliefs. Cognitive schemas are powerful because they often relate to our identity as people and assist us throughout our daily lives. As a result of these schemas, the safety movement in many industries (e.g., health care, trucking, and products) has conditioned witnesses to automatically accept any safety principle as absolute and necessary, while simultaneously avoiding danger and risk. Specifically, years of repeated safety seminars, safety publications, and continuing education classes provided by employers have created powerful and inflexible cognitive schemas. This is one reason why “safety is our top priority,” “safety first, safety always,” and similar slogans are plastered all over company websites and marketing materials.  

Therefore, when witnesses are asked about safety issues during a deposition, automatic agreement occurs as a function of the brain working to confirm its cognitive safety schema. Edge attorneys have discovered that they can use witnesses’ confirmation bias to their advantage because it virtually guarantees agreement to safety or danger questions. 

Here is how it works: 

• Edge attorneys illuminate defendant witnesses’ safety or danger cognitive schemas with their line of questioning. 
• Witnesses have no choice but to agree with safety questions, as cognitive schemas are strongly related to an individual’s self-value and identity. In other words, disagreement with a cognitive schema is burdensome, if not impossible, as deviating from their internal value system proves uncomfortable—no one likes to view themselves or their actions as anything but “safe.”  
• Edge attorneys then ask additional general “safety-or-danger”rule questions, which force further agreement from the witnesses and increases the cognitive momentum of agreeing with the Edge attorneys’ questions (also known as, getting on the “Yes train”).  

Examples of general safety-and-danger rule questions (for any case type) include: 

• “Safety is your top priority, correct?” 
• “You have an obligation to ensure safety, right?” 
• “You have a duty to put safety first, correct?” 

• “It would be wrong to needlessly endanger someone, right?”  
• “You would agree that exposing someone to an unnecessary risk is dangerous, correct?” 
• “You always have a duty to decrease risk, right?” 

These repeated agreements lock the witnesses into an inflexible stance, allowing Edge attorneys to move to Phase Two of the attack: linking safety-or-danger issues to specific conduct, decisions, and interpretations.    

Phase Two: Anchoring Bias

Anchoring bias refers to the cognitive tendency to rely heavily on early information (the anchor) when making decisions. Anchoring bias occurs during depositions when witnesses use an initial piece of information to answer subsequent questions. Various studies have shown that anchoring bias is very powerful and difficult to avoid. In fact, the 1996 study, “A new look at anchoring effects: basic anchoring and its antecedents,” which appeared in the Journal of Experimental Psychology: General, showed that even when research subjects are expressly aware of anchoring bias and its effect on decision-making, they are still unable to avoid it. 

Edge attorneys cleverly use initial agreement to general “safety-or-danger” rule questions to create an “anchor” that forces witnesses to continue agreeing with subsequent questions designed to link safety-or-danger rules to specific conduct, decisions, or interpretations. This sophisticated psychological approach manipulates witnesses by forcing them to repeatedly focus on their cognitive schema alignment rather than effectively processing the question’s true substance (and motivation).  

Below are some examples of specific “safety-or-danger” questions in a medical malpractice case. 

Safety

• “If a patient’s status changes, the safest thing to do is call a physician immediately, right?”  
• “If a patient is having chest pain and shortness of breath, the safest thing to do is to send them to the ER immediately, correct?” 
• “If a patient’s oxygen saturation drops to 82%, and you are on-call, the safest thing to do to protect the wellbeing of the patient is to come to the hospital ASAP, right?” 

Danger 

• “Documentation in the medical chart must be thorough; otherwise, a patient could be put in danger, right?” 
• “You would agree with me that when a Troponin value is elevated, the patient is in imminent danger, correct?” 
• “Doctor, when you order a test or labs, you’d agree with me that you should review the results immediately, because any delay would put the patient at risk, right?” 

Next are examples of specific safety-and-danger questions in a transportation case. 

Safety

• “To ensure safety as a commercial truck driver, you must follow the federal rules governing hours of service, correct?”  
• “Another safety rule requires daily inspection of the truck and trailer, such as brakes, correct?”  
• “And you agree that if someone violates those safety rules and causes an accident, then they should be held responsible for their actions, correct?” 

Danger

• “Commercial drivers must maintain daily logbooks to ensure other drivers on the road are not put in danger, right?”  
• “You would agree with me that when a commercial driver has exceeded the speed limit, other drivers on the road are put in danger, right?”  
• “A commercial driver who places others in danger should be held responsible for the harms and losses caused, right?” 

These subsequent agreements to specific “safety-or-danger” rule questions accomplish two key Edge attorney goals: It forces the witnesses to become deeply entrenched in an inflexible stance on safety issues; and it sets the stage to introduce case facts in a powerful manner to create psychological discomfort.  

Phase Three: Cognitive Dissonance

Cognitive dissonance is the mental discomfort people experience whenever their behaviors, attitudes, and beliefs are inconsistent with their conduct, decisions, or interpretations. Cognitive dissonance can occur in many areas of life, but it is particularly evident in situations where individuals’ behaviors conflict with beliefs that are integral to their self-identity and profession.  

Edge attorneys purposely generate cognitive dissonance by highlighting case facts that show the witnesses’ conduct, decisions, or interpretations contradict their cognitive schema regarding safety or danger. Repeated contradictions result in witnesses experiencing psychological distress. Importantly, the amount of cognitive dissonance produced depends on the importance of the belief—the more personal the value is, the greater the magnitude of the cognitive dissonance. Additionally, the pressure to reduce cognitive dissonance is a function of the magnitude of said dissonance. Hence, Edge attorneys purposely lay out multiple safety-or-danger questions to increase the magnitude of dissonance between the safety-or-danger admissions and the witnesses’ conduct, decisions, or interpretations of the case.  

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During depositions, there is a clear transition from general and specific safety-or-danger questions to case-specific ones. Once witnesses have agreed to the safety-or-danger rule questions, Edge attorneys start presenting case facts that do not align with the safety-or-danger rule answers. Edge attorneys strategically place the case-fact questions directly behind several safety-or-danger rule questions. As the case-fact questions are delivered to witnesses, their brains sense the contradiction between the case facts and their previous testimony, leading to cognitive dissonance.  

The ordering of the questions is crucial, as presenting case-fact questions too early in the sequence will not produce cognitive dissonance. Therefore, Edge attorneys will purposely delay the delivery of case questions to ensure that the safety-or-danger rule questions have been agreed to first.  

Phase Four: The Hypocrisy Paradigm

The final and most powerful Edge attack is the hypocrisy paradigm. Getting people to advocate positions they support but do not always live up to maximizes the level of cognitive dissonance. During Edge depositions, when the attorneys directly accuse the witnesses of putting someone else in danger and causing harm, the attorneys’ questioning generates shame and threatens the witnesses’ sense of integrity. Hypocrisy is an intense threat to one’s identity and self-esteem and creates extreme psychological discomfort. Therefore, Edge attorneys, as a form of manipulation, repeatedly point out how the witnesses have failed to live up to their professional standards. The hypocrisy fuels further cognitive dissonance, often generating feelings of shame and embarrassment.  

Examples of hypocrisy paradigm questions in a medical malpractice case include: 

• “Failing to call a physician at 4 pm was a safety rule violation, correct?” 
• “And if you would have called a physician, it would have prevented my client’s stroke, right?”  
• “Nurse Jones, failing to call a physician immediately at 4 pm was a deviation of the standard of care, wasn’t it?” 

In a transportation case example questions include: 

• “Failing to perform a complete vehicle inspection prior to your travel was a safety rule violation, correct?” 
• “If you would have performed a vehicle inspection, it would have prevented my client’s injury, right?” 
• “By failing to perform a vehicle inspection prior to your travel, a violation of the safety rule, and endangering other drivers, including my client, you were negligent, weren’t you?” 

After fostering shame and embarrassment through hypocritical behavior, Edge attorneys have emotionally battered witnesses to a point where they concede defeat and admit negligence.  

Derailing the Edge Attack at Deposition 

Properly training witnesses to withstand Edge attacks requires a sophisticated reconstruction of the original cognitive schema, followed by a rebuilding of a new adjusted schema built upon an understanding of the role of circumstance and judgment. Once the new cognitive schema is firmly in place with no signs of regression, witnesses will be immune from Edge attorneys’ safety or danger rule attacks.  

The cognitive schema reconstruction process is no easy task and requires advanced training in neurocognitive science, communication science, personality theory, learning theory, and emotional control. Cognitive restructuring training methodologies exist that have proven effective even against the most well-trained Edge attorney. The result: reasonable settlements and defense verdicts at trial, as the true “game-changer” is a highly trained defense witness who is immune from Edge tactics.  

The goal of Edge attorneys is simple: create economic leverage. They strive to force clients to settle a case for far more than the realistic value by manipulating the witnesses into delivering damaging testimony. The economic impact of being “reptiled” is staggering, resulting in millions of dollars of unnecessary payouts to undeserving plaintiffs and their attorneys. The Edge methodology is pure psychological warfare designed to attain plaintiff attorneys’ economic goals. As such, defense counsel and their clients need to supplement their traditional witness preparation efforts with sophisticated psychological training to specifically derail the perilous Edge attacks.  

Advanced neurocognitive witness training can completely ruin savvy Edge attorneys from controlling witnesses’ answers and steering them towards admissions to negligence and causation “Hit List” items. The problem is that merely warning witnesses about these sophisticated tactics is grossly inadequate. Well-prepared witnesses have repeatedly failed at deposition because the preparation program did not include training to diagnose and repair the neurocognitive vulnerabilities where Edge attorneys attack. Proper training can not only protect witnesses from Edge attorneys’ safety-or-danger rule attacks at deposition, but also substantially decrease the economic value of the case.