By Dr. Ken Broda Bahm:
I was talking with a long-term client the other day, and he shared that he’s experiencing something that I’ve been feeling as well: A harder time staying sharp and focused these days. With the continuing stress and looming uncertainty of the coronavirus pandemic, and its associated social isolation, professional disruption, and economic crisis, there is a lot to distract your mind. Even as we consciously decide to focus on work, we still have to contend with the unconscious background: a state of heightened pressure that takes a toll on body and mind. “COVID-brain” is a symptom, not of the actual infection (though the virus does have neurological effects, apparently), but of the stress.
Neuroscientist Molly Colvin recently wrote about the “Brain fog” that has become common in the current complex of economic, medical, and social threats. Worry over the news and over an unknown future causes a form of “fight or flight” response, an evolutionary stressor that can be good in the short-term, but over the long-term starts to manifest serious psychological symptoms. In that situation, she writes, “Complex thinking skills, like decision-making or planning, temporarily go offline.” That is likely affecting all of society, but in the already high-pressure setting of litigation, it may be upsetting the delicate balance that we have each strived to maintain in normal times. In this post, I will consider the potential for “COVID-brain” to target three groups in litigation.
Your Witness Has COVID-Brain
There is not a lot of actual trial testimony going on now, but there are still some depositions and many witness preparation sessions happening. We have had a lot of success with remote meetings using WebEx. To be sure, you do lose something when the attorney, the witness, and the consultant are all in different places, but you can do a lot to improve the testimony, both substantively and stylistically. But, to be sure, it can be stressful for the witness. I recall a recent meeting with a doctor, an emergency room physician, no less, taking time out of busy rotations to attend an online meeting in order to prepare for a deposition that opposing counsel was refusing to delay. He didn’t need that added pressure, of course, but the preparation went forward on the assumption that we were going to go slow and do whatever we could to reduce the stress and build the focus. While that is an extreme case, it is probably a safe to assume that all of your witnesses feel a little off right now. They will need a little more in the way of support and hand-holding… virtually, of course.
Your (Mock) Jurors Have COVID-Brain
There are also not a lot trials happening, next to none involving juries. But pretrial research involving juries is still happening. As it happens, I am running an online focus group as this article goes to press. For the mock jurors, it will certainly be a challenge to attend to the details while watching on their web-cams as they are all dealing with their own personal disruptions. That is actually part of the motivation for my clients in this case: They want to find out, if the judge sticks with the threat of a summer trial date, how will that affect potential jurors? Will the jurors, in this context, see the claimed harms and injuries in the case as more serious or more trivial? Any research that takes place in the foreseeable future needs to account for that variable. Even if the case has nothing to do with the pandemic, it will be important to research how the pandemic and the economic turbulence has affected them and their perception of the case.
And You Have COVID-Brain
Finally, let’s go back to the attorney I mentioned at the start of this post. An enormously successful lawyer, he is used to the stress of keeping dozens of plates spinning at the same time. In normal times, I suspect he (and a lot of us) would say that he thrives on it. But now, that delicate balance is a little harder to maintain. We can plunge into the work that we have, and we can try to keep everything as normal as it can be, but at a certain point, we need to acknowledge the extra effort. For example, I find myself particularly focused on structure these days. I will make lists, not only of what I will do for the day, but for what I will do in the next hour. And, of course, I don’t know if I’ll be operating in that modified mode for the next few weeks, the next few months, or longer. In the meantime, it is a reason to be kind with your colleagues, your clients, your witnesses, even your opposing counsel, and also with yourself.
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