PREPARING THE CLIENT FOR DEPOSITION,
TRIAL, WINNING AND LOSING
PLDF 2014 ANNUAL MEETING
SEPTEMBER 17-19, 2014
Lawyers devote a great deal of time to mastering the technical aspects of trial
work such as cross examining experts, selecting a jury, giving an opening statement,
and addressing other nuts and bolts concerns. We don’t talk much about relations with
our clients. Maybe we should.
When we represent individuals, as we often do in medical malpractice cases,
accounting cases, engineering cases, architect cases, and so forth, how satisfied our
client is with us is determined not only by the result, but also by how we handle the
relationship.
There are too many aspects of the lawyer-client relationship to cover here. We
can, however, consider a few scenarios where our dealings with our clients are
particularly important.
FIRST MEETING
Perhaps we should think about what it’s like to be the client. He or she has been
sued, maybe for the first time. All sorts of worries are ricocheting around the inside of
the client’s head. The justice system can loom like a treacherous jungle to someone
facing it for the first time. What are the clients thinking when they first shake our hand?
Here are a few possibilities:
1.
I want my lawyer to make this go away, and quickly.
2.
I wonder how good my lawyer is.
3.
How do I know whether my lawyer is any good?
4.
How good is the lawyer suing me?
Is he/she better than my lawyer?
Everyone says the side with the best lawyer wins.
5.
This case is frivolous. I want to sue the plaintiff back, right now. My
lawyer just needs to tell the other lawyer that the case has no merit and to dismiss it.
6.
I am angry, and I want my lawyer to be angry too at the injustice of me
being sued.
7.
I am scared, and I want my lawyer to comfort me and guarantee that I will
8.
I don’t have time for a lawsuit, and I don’t have time for this lawyer. I need
win.
my lawyer to handle this and leave me out of it.
9.
I am embarrassed at being sued, and having to see a lawyer. I am a
failure.
10.
I am a nervous wreck. I don’t know anything about lawsuits. How does
this all work? Who is the plaintiff? Am I the plaintiff?
11.
I don’t like lawyers, and probably won’t like this one. They all are awful.
12.
Does this lawyer have my interests at heart, or the insurance company’s?
13.
I believe in my heart that my actions were a mistake. Do I dare admit that
to this lawyer?
14.
This was all (co-defendant’s) fault. We need to tell the plaintiff’s lawyer
that so she will dismiss me.
As we know, clients are unique.
They have different concerns, different
sensibilities, and different coping skills. Our job is to figure out what our client needs
from us and deliver it. The best way to discover that is for the client talk and us to listen.
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In managing the initial conversation with our client, we need to use the same approach
we use in cross-examining witnesses at trial. If we are too busy talking ourselves or
thinking about what we were going to say next, we are going to miss the clues our client
is giving us.
Here is an incomplete checklist of some matters we may want to discuss with the
client in that first meeting (in addition to those above).
1.
Before we do anything else, let me hear the questions and concerns you
have today. (We don’t want the client stewing over unanswered questions and not
focusing while we are going over our issues).
2.
Let me find out if you have been sued before, or have other experience in
litigation.
3.
Let me tell you about my experience as a lawyer generally, and
specifically in this kind of case, so you will know I am competent.
4.
Let me tell you how a lawsuit works and progresses, so you will know
generally what to expect. We also need to discuss the basic elements of the law that
controls the case.
5.
Let me help you decide how you will respond to people who ask about the
case and how to avoid discussing the substance of the case.
6.
Let me address your fear of an excess verdict, losing the house, needing
to transfer assets, and any of the other nightmare scenarios you may be contemplating.
7.
Let me direct you to your insurance specialist to have your questions
answered about coverage.
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8.
Let me offer to speak with your spouse (along with you) early in the case,
to introduce myself and make the spouse feel at least a little involved in the process, if
that is what you and your spouse want.
9.
Since I know you want to ask me but might be afraid to ask, let me give
you my preliminary assessment of how serious or “bad” your situation is, or explain to
you why I cannot do that.
10.
Let me pay some attention to how my office looks and how I look so as to
avoid having either appearance cause you to lose confidence.
11.
Let me learn about you, your family, and your hobbies, so that we can
start to get to know each other.
12.
Let’s talk about social media, and how plugged in you are – because if you
are plugged in, it can be trouble for lawsuit purposes.
PREPARING FOR DEPOSITION
Next to preparing the client for trial testimony, nothing is as important as
preparing the client to be deposed. We all know that a bad deposition can cripple our
defense at trial. Consequently, doing everything we can to get the client ready is time
and effort well spent.
The first order of business is to make sure the client understands the importance
of the deposition and the deposition preparation. In a serious case, getting ready takes
a lot of time. Hours and hours and hours. And hours. The client has to be willing to
give the lawyer that kind of time, and to focus. If we explain the critical importance of
the deposition to the client, he or she is more likely to give us the time we need, and to
work hard to do well.
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We all have learned by now that although we can make a preliminary judgment
about how sturdy or not our client’s constitution is for purposes of a deposition, that
initial evaluation can be wrong. Subjecting the client to practice deposition questioning
is the only way to get a true handle on the client’s facility for thinking on his or her feet
and maintaining control in the face of an adverse questioner. We can talk at the client
all day long about how to answer questions, but the client will not be able to implement
our suggestions without practice.
That is why we put him or her through mock
depositions.
It also is important to let the client understand that perfection is not the standard.
Few deponents get through hours of questioning without making errors. Even if the
client does poorly in a deposition, all is not lost. We need the client to maintain a
positive attitude. So, we must motivate the client without terrifying the client. That can
be a narrow path to traverse. We cannot do it without the client’s attention and trust.
There are also some practical aspects of being deposed that the client needs to
be ready for. These include understanding who the court reporter is and how court
reporting works; seeing himself or herself on camera in practice sessions before the
actual videotaped deposition to appreciate how facial expressions, posture and body
language can improve or detract from the impression the witness projects; in a case
with multiple defendants and possibly multiple plaintiffs, knowing who among the
lawyers in the case are friendly to the client’s defense and who are not; understanding
the etiquette of the deposition, including whether the client is required or expected to
shake hands with the opposing lawyer (I leave that to the client); and so forth.
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PUBLICITY
In some cases, the media gets interested and the client becomes the subject of
isolated, sporadic or seemingly constant reporting. For obvious reasons, this can cause
great distress to the client and the client’s family.
If opposing counsel is giving
statements to the media, the client needs to be involved in the defense lawyer’s
decision about whether to and how to respond. Some clients want the defense lawyer
to make an emphatic public statement in support of the client even if the lawyer would
rather not. The important thing is to discuss the dilemma presented by the media with
the client, so the client understands the positives and negatives in participating in a
media showdown.
If the defense lawyer is going to talk to the media, he or she should tell the client
in advance what the lawyer is going to say. We do not want our client caught by
surprise when reading a statement by his attorney or seeing the defense lawyer say
something on television that the client did not know was coming. The client needs to be
informed of not only what the defense lawyer is going to say, but also why it is going to
be said, what the risks are of saying it, and why not saying more is better or why saying
something stronger could create problems.
The client also needs to understand the lack of control that most of us generally
have over what the media reports and what opposing counsel says in the media. There
are few rules, and no good way to prevent the other lawyer from saying harsh or even
untrue things about the case and our client. Reporters leave things out, and usually are
more interested in controversy than accuracy. The client needs to know this. Because
of this lack of control, often silence with the media is golden. Other times, silence or “no
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comment” would look bad, and it would be better to give a statement than say nothing,
despite the risks. What must be avoided is the client misunderstanding why the lawyer
talks or doesn’t. Silence is not lack of support, and comment is not self-promotion. The
client will understand this as long as we communicate.
SCHEDULING AND PROCESS
Some clients are lawyer haters. They for some reason assume that the client’s
lawyer was the principal architect of the legal system and is responsible for all of its
flaws and frustrations. Some clients think of lawyers generically, as a generally fungible
and disreputable group. A client with these views needs extra attention, because he or
she will find it harder to trust the defense lawyer. Building a relationship with a cynical
or skeptical client takes extra time and effort.
This is where our experience and
judgment come in. Timing is everything, and developing personal rapport cannot be
rushed. We have to have thick skin and much patience.
During discovery, we need to make sure the client knows, and is prepared for,
discovery rulings by the judge that seem unfair, scheduling requirements that are
inconvenient or onerous, trial settings that are disruptive to the personal or professional
life of the client, deposition scheduling that seems to happen too quickly or too slowly,
and most of all, delays in identification of adverse experts and disclosure of their
opinions. As in life, in litigation what a client is prepared for, even if unpleasant, goes
down easier than what comes as a surprise to the client. Therefore, sitting down and
going through the process and possible scenarios can make a world of difference in
preventing come-aparts and tantrums by the client later.
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SETTLEMENT
Some clients assume that all cases are settled, and think it is just a matter of
time before his or her case is settled. They might ask early on “Why not just settle
now?” or “Are we going to settle this case?” On the other hand, some clients are
opposed to settling, even if the carrier wants to try. Some clients who yearn for a
settlement are reacting to stress, not the actual risks presented by the case. Some
clients who want to fight to the end are out of touch with reality. They might not know
that their insurance company takes a hard line on settlement and rarely settles.
Whatever the situation, the client and the defense lawyer need to talk about the
possibility of settlement, the process, and the pros and cons. For example, a client in a
highly defensible case might be so distraught from being sued that he or she wants the
case settled immediately, to relieve the pressure and angst. The lawyer might need to
explain why the insurance company would be unlikely to consider settlement at that
stage, or why trying to negotiate a settlement might be a bad idea early in the case.
Another client might insist on going to court, even if there is a near certainty of a
bad result, because the client is in denial or is stubborn or reckless. Sometimes, the
plaintiff or plaintiff’s lawyer is so unreasonable in settlement negotiations that settlement
just is not an option.
Sometimes, settlement is not going to happen because the
insurance company has decided to try the case even if the client would rather not.
Whatever the scenario, the client needs to be fully apprised of the consequences
of settlement.
In a medical case, for instance, this might include the client being
reported to the National Practitioner’s Databank and the state’s Board of Medical
Examiners, potentially seeing his or her insurance premiums rise, encouraging future
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lawsuits, and so forth. Complicating factors like third-party liens, Medicare set-asides
media coverage must be also explained.
If the decision is made to pursue settlement, the client probably has no good idea
of how the settlement value of the case is determined. That is another topic ripe for
discussion with the client. This eventually will lead to a conversation about the chances
of winning and losing and the verdict range. The client is entitled to our candid opinion
on these matters. While we have to emphasize the limits of our ability to predict specific
outcomes, we have an obligation to give concrete, straight-forward information to our
clients, as a doctor would (or should) with patients.
The client also needs to know what his indemnity limits are, as well as
deductibles that he or she might have to pay in a settlement. These topics are better
covered by the insurance specialist. It is our job to encourage our client to get these
answers from the insurance company early in the process.
The negotiating process is another subject that needs to be talked through with
the client. This is particularly true if the client will be participating in a mediation. Most
normal people become frustrated with laborious, tedious back and forth in many
mediations. If the client is not prepared for that process, he or she will probably become
unhappy quickly, and wonder why the lawyers for both sides are so dense and cannot
just cut to the chase instead of wasting hours and hours posturing.
The client also may misunderstand the beginning settlement positions that
parties often take in mediation, including high, fanciful demands by plaintiffs and low
initial offers by defendants.
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The client also should be told to prepare for accusatory remarks by plaintiff’s
counsel at the start of the mediation, if lawyer openings will be allowed, and also told
what approach the defense lawyer will take in his or her remarks. Defense lawyers’
openings tend to be as slanted toward their case strengths as the plaintiff’s lawyer’s, so
the client needs to hear a more realistic evaluation before mediation. The client needs
to know that our presentation at mediation will leave out the gloomy and still dangerous
aspects of the forecast we gave the client before the mediation.
Few of us spend the time we should in getting our clients ready for mediation.
Shame on us, because mediation can be stressful for those we represent, and part of
our job is to minimize that stress.
TRIAL
This topic alone could take up an entire seminar. There is so much to cover with
the client. Here is another incomplete list.
1.
Let’s discuss who the judge is and what is he/she is like.
2.
Let me explain what “sustain” and “overrule” mean. Don’t overreact to
rulings, whether favorable or adverse. Many rulings are not particularly important. If
the judge rules against us on something critical, we will discuss that after court.
3.
Let me explain exactly how the jury is selected.
4.
Be mentally prepared to lose most or all of the jurors who in voir dire
seemed to be in our favor.
Be further prepared to end up with a jury of mostly
unknowns even after hours and hours of voir dire. That is disconcerting, but normal. (I
better tell you what “voir dire” means too.)
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5.
Let’s talk about the sequence of the trial, from the pretrial evidentiary
discussion between the lawyers and judge, if there is one, through voir dire, opening
statement, the plaintiff’s witnesses, defense witnesses, the charge conference,
closings and deliberations.
6.
I need you to understand the limitations of cross-examination. I will not
cover certain issues or ask certain questions you might think I should cover. You might
think from television that cross-examination is simply of matter of rattling off laser-like
questions of an adverse witness that will expose what a lying, heartless, putrid sack of
humanity the witness really is. In the real world, cross-examination is fraught with peril
as well as opportunity. Let me tell you why. Here’s my cross-examination plan for the
key witnesses.
7.
Let’s go over some logistical issues, such as when and where to meet
every day, what to expect after each day of trial, how lunch will be handled, where your
spouse will sit, how to avoid talking to media, jurors and witnesses, and so forth all
need to be discussed. You have enough to worry about without fretting over those
details.
THE VERDICT
We probably all agree that we have a responsibility to tell our clients when things
are going poorly, whether it be during the trial or during discovery. We have to balance
that obligation with the need to maintain the client’s self-confidence and fortitude during
the stressful ordeal that the case and trial present. We are busy during trials, with a lot
on our minds and a long list of tasks that need to be done after court every evening.
We should include among these tasks a conversation with the client and possibly
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spouse about how the day went, what will happen the next day, how the case is looking
at that point, and give the client a chance to ask questions. Sometimes we have to
remind ourselves that it is the client’s case too, as we get caught up in the intensity of
the trial.
We should have explained to the client before the trial that trials can be up and
down affairs, with high and low points throughout. We also should discuss, before the
jury is selected, what the plan will be if the trial goes poorly. If there is a possibility that
settlement will be pursued if the trial is not going well, the client needs to be aware of
that contingency plan before the trial begins. It would be highly upsetting to a client who
thought he or she had a good defense to be told suddenly in the middle of a trial that the
wheels had come off and the case had to be settled to avoid disaster. If the client knew
going in that there were problems and the trial could go badly, and that if it did
settlement might be pursued, the client would be much better emotionally prepared to
handle the unfortunate turn of events. Likewise, if the client has a personal lawyer
writing letters to the insurance company demanding settlement, the client needs to
know that the defense lawyer is in communication with the personal lawyer about the
trial.
At the end of the trial, the client, spouse and any family or friends present need to
know how to react, and how not to react to the verdict, whether good or bad. Stoicism
is the best approach, if it can be accomplished. What must be avoided, of course, is
whoops and hollers if there is a defense verdict and screams and cries if the plaintiff
wins. In the end, we do not have control over how any human being responds to the
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stress of that moment, but we owe it to the client, the court, the jury and our opponents
to avoid unseemly or embarrassing outbursts of any sort, as best we can.
PERSONAL EXPOSURE
If the case is one where there is a threat of significant personal exposure above
policy limits for the client, it is incumbent on us to discuss this with the client. Most of us
are not experts in taxation and corporate law. We cannot not pretend that we are. The
client needs to know the limits of our expertise so the clients can retain another lawyer
to advise him or her on those matters.
Likewise, if the client needs a personal lawyer to make a request to the insurance
company to settle, we have to tell the client that. That is not something most clients will
know about on their own. We also need to put the issue in its proper context. We and
the insurance company are used to this process. The client is not. The client should be
told that the insurance company is accustomed to receiving letters about settlement
from personal lawyers, and that the exchange of letters in the client’s case is to protect
the client but not to distract him or her. It is not good for the client, the insurance
company or us for the client to be hostile to the carrier. We can help avoid that by
assuring the client that his or her personal interests are being as protected as much as
they can be by the personal lawyer and that client does not need to spend energy
worrying over that.
POST-TRIAL
A thorough debriefing is needed after every trial, whether the result is a defense
verdict or a plaintiff’s verdict, or for that matter, a mistrial. The client needs to know
what comes next, whether it be a new trial, a motion for a new trial by either side, or an
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appeal by either side. When the client wins, he or she needs to understand that there is
always a possibility of an appeal, and with any appeal there is a possibility of the
favorable verdict being undone by the appellate court. All we can do is give our best
judgment about how likely or unlikely a reversal is, being careful not to exaggerate. If
there is a plaintiff’s verdict, it is particularly important to talk through with the client the
consequences of that, the appellate process, and the odds of success. Some clients
are not ready for that conversation immediately after the trial. Others need it then.
Again, it is up to us to try to determine what the client needs from us at that moment.
These are but a few of the many aspects of representing our clients, and dealing
with them as individuals, that are too often overlooked. From time to time we hear
complaints about medical professionals not listening, not communicating well, or not
providing enough information. We, like they, have an obligation to keep our clients
informed and to some degree to provide emotional support. We probably need to give
more thought to how we can improve in that area.
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