EP 904- Bad Facts

Episode Notes

Transcript

Announcer:

Welcome to Heels in the Courtroom, a podcast about successfully navigating law and life featuring the women trial attorneys at the Simon Law Firm.

Mary Simon:

Hi everyone. Welcome to another episode of Heels in the Courtroom. I’m Mary Simon and I’m joined today by Amy Gunn, Liz Lenivy, and Elizabeth McNulty. Hey ladies.

Liz Lenivy:

Hey Mary. Hi.

Mary Simon:

I was thinking about what we should talk about for this episode and usually the topics will come to mind because I’m just working on a case that’s in front of me on my desk and I’m dealing with an issue in it, and then I bring it to our discussion to brainstorm. And one of the things that I’ve encountered a lot lately, and I know that you all have too, is just bad facts in your case and how to deal with them. And I was thinking about this and it kind of made me laugh. I was maybe like a year into practice and I remember sitting at my desk looking through my client’s medical records and she had missed a whole maybe a month or a month and a half of her doctor’s appointments. And the records were just riddled with the physician notes or the assistant notes saying, tried to call her, no answer, no show.

And I could feel even just sitting in my office, I could just feel like a gut punch. And I started freaking out and I felt so nervous and I felt like the whole case is over and the sky’s falling down and it’s going to be my fault. And how am I going to deal with this? And does she have damages? She does have damages, but she’s not going to the doctor. And I was just spinning my wheels and I remember walking down to my dad’s office and telling him how she missed all these appointments. And his response was just, but what’s the problem? What is the specific problem? And I’m like, that is the problem. We have these terrible records. And he’s like, did you pick up the phone and call her and ask her why she missed the appointments? And I was like, well, no, but how is that going to help us?

And it was a lesson of just, you can’t run away from a bad fact. Those records exist. They’re going to be shown to the jury, everyone’s going to hear about it. The other side has those records, they know about it, and you have to figure out why that’s happening. What is the actual truth behind the bad fact? And I called my client and she very quickly just told me, and I already knew she’s a single mom, and she just said, I have three kids. I have no childcare. I can’t afford childcare, and I can’t make my appointments if my kids need me at home. And sometimes I can’t get all three of them in the car to go to the appointments. And I was like, okay, we’ll talk about it again. And I kind of just left it kind of, I didn’t know whether to tell her, don’t worry about it. I didn’t know what the conclusion was, but I didn’t want to worry her. And I went back to my dad, he’s like, alright, that sounds good. Just keep working on the case. And he just didn’t think about it anymore. And that was kind of my first experience with seeing a bad fact and panicking about it. Yeah,

Liz Lenivy:

Mary, your intro there has got me thinking about a couple of different things. I think the first thing with this topic of bad facts is that I think a fact is only really that bad if you don’t know about it, right? If you can’t strike first. So that’s the first thing is yes, there’s going to be bad facts in every case, bad facts in every case. But the key to good lawyering and good advocacy is knowing what those facts are and being prepared to present them in a way that is honest and puts that fact in full context. The example you gave of your client where she is missing appointments, that looks bad, you’re failing to mitigate your own damages. That’s the defense. But the opposite side of that is, well, she’s a struggling mom, she’s doing her best. And if you have a handful of moms, a handful of parents, frankly on that jury, they’re going to understand what that’s like.

So putting that fact within context is so important. And the other thing that I thought about too was I’ve heard this phrase before and it’s not used in exactly this same situation, but it’s sort of how I have learned to approach bad facts. And the phrase is embrace the suck. If you’ve ever heard that, right? And it’s supposed to be in the context of things are bad right now, but you’re learning a lot. You can find the silver lining in anything. And I think that that is the approach that I’ve taken to bad facts now is, well, I’m going to embrace the suck. This is a bad fact, but how can we make this into a good fact? And I think what you’ve teed up for this episode is for us to give a couple examples of bad facts that happened in our cases and how we turn that around to be actually a good fact for our client or for our case.

And then the only other thing that I thought about was where you, and maybe you approach this differently now because you’ve been in practice longer, but the idea of not being sure whether or not to tell the client, don’t worry about it. I always tell my clients, don’t worry about it. Hey, we know about it, it’s not great, but I don’t want you to stress about it because we are going to be prepared. We’re going to come up with a strategy and you should feel confident because that’s the most important thing for me going into whether it’s a client’s deposition or the trial itself, is I want my client feeling fully confident, fully ready, and that they can fully trust me to handle whatever is thrown at them. And I think that the important thing, and this is what I tell them, look, it’s there, but we know about it, we can handle it.

Mary Simon:

I think that makes sense. And that’s kind of what we did in that case was we ended up resolving the case at mediation and that issue came up. I put it in my brief about missing appointments and because she has so much on her plate, I kind of worked it into her damages in the case just to kind of get out ahead of it. That was one that as time goes on, I almost see as just a fantastic client. I don’t even think about that anymore as something that I’d even be remotely worried about today as I was back then. But I have had, I’m sure all of you have dealt with this before, and I’m curious to hear how you work this into the case, and maybe it’s case dependent, but have any of you ever had a client who had you’re pursuing damages for a certain part of their body and they have a long history of preexisting conditions, not just one or one prior fall or one prior back ache or something, but it’s a good case, but they’ve got a long history of preexisting issues.

Amy Gunn:

I think that happens a lot, unfortunately, particularly if you are dealing with neck or back pain, something that people have off and on their whole lives for various reasons. Real quick on the other, just overall thought on this topic, I tell my clients I can fix, spin something almost any fact except a lie. And I start out making that very clear early on in the case, early on in our relationship because we can, like you say Mary and Liz, we can take a quote, bad fact, put it in context and mitigate it or eliminate it from the theme pretty much, except if it’s a relevant issue that the client has lied about and two things, it’s bad for a jury, but also I lose confidence in the client a little bit. Well, if he or she’s lying about this, what else are they lying about? And I try to get to the bottom of why they’re lying. And sometimes it’s because they forgot something from 25 years ago if we were talking about some sort of preexisting issue. Sometimes they’re just scared and don’t understand the breadth of discovery

And what the other side gets to see in terms of their previous medical records or other things. Sometimes they figured out about social media. I mean, a client had, this was a long time ago, bad back had an incident where the back got worse and all of a sudden everything in her life is bad and different. Whereas before it was manageable. And so a couple things. Number one is we can work with that because you can look the metal cracker and say, well, yeah, she had a couple of incidents of back pain over the years, but now she needs surgery. And that’s the big thing because orthopedic surgeons or neurosurgeons or whoever’s doing the surgery will say, there’s a lot of pathology in this person on their films, but they didn’t have the pain enough until after this accident to need surgery to say, I’m ready for surgery.

And so pain is subjective, I get it. But if you look at the records, you can say, sure, it was there. However, if you say, I’ve never had any back problems ever, then the focus is off the treatment that she needed after this incident and on all the other things that she had to deal with before this incident. And in this particular case, I’m remembering, unfortunately, the client, this is another early social media lesson, had been posting on, I guess Facebook was like 20 years ago, and saying in her deposition and everything that she couldn’t go anywhere, couldn’t do anything. Both her social life and her work life were affected adversely. And yet she’s posting pictures, deer hunting on a four wheeler like videos. And you’re like, well, like bow hunting. You’re like, well, that takes a lot of

Mary Simon:

Upside

Amy Gunn:

Down. I think a lot of course drinks to ride and shoot an arrow at the same time. So I don’t know that’s a problem. And of course it all came out. And I will say in that particular case, there was enough of the deceit in my opinion that I fired her. I just didn’t see, I mean, could I have made something of it? Sure. But at some point you have to make a decision about whether it’s the right thing to do.

The other issue is, is it relevant because you talk about preexisting issues or preexisting problems, is it the same part of the body? I mean, it could be a collateral issue in terms of, well, I had these pains, but I don’t have them. That’s not what I’m arguing about now. It’s not the issue. So maybe I did lie or maybe I said I didn’t have this problem and I actually did, but is it relevant to this case? And so you always have to keep a close eye on what is the lie about, but I always have to remember that it may not be relevant until someone lies about it.

And then it may become relevant not just to prove the fact, but just to also talk about the truth and veracity of the plaintiff or the witness. So I agree. I think most things that we learn about can be handled and dealt with when put into context and the defendants. If the answer to the question is, I couldn’t afford this healthcare, I couldn’t go to PT anymore because my insurance only covered three visits and I needed 12, they don’t usually want to open that door. It just takes time. And it goes back to what I believe very strongly, which is know your records. Because if your client doesn’t remember back pain from 20 years ago and you don’t find it in the records and you don’t prep them on it and the question comes out in a deposition and they answer it, no because they don’t remember, that’s kind of on you because you have the same records as the defendant and you should have seen it and prepped him on it and instead of agreeing and saying it’s a different kind of pain and explaining it away, now they don’t remember and it looks like a lie.

Mary Simon:

So do you, in a situation like that, there’s a couple different things that you said that make me think that if it’s a preexisting issue that came up that the client either forgot or lied about or whatever it was, it can either be something where it might not even be in a record and they’re just asked a random question in their deposition and you’re in the rabbit hole that you’re now learning about for the first time as the attorney, which you don’t want to be in that situation, but that’s one way it could happen. Another could be you get a set of records and whether the client lied or didn’t remember, you have found it out in the middle of litigation. When that happens and then it’s in front of you and you see it and maybe you got the authorization, you’re reviewing them and then getting the authorization over to defense counsel. Are you just supplementing those records just as the same?

Amy Gunn:

Yes. If it’s a part of the body that’s at issue? Yeah,

I think discovery is so broad in Missouri and in most places that the fight isn’t about discovery. The fight is about admissibility. So you get it out, throw it out there, let them do what they want with it. And again, as long as your client is aware of it and isn’t lying about it usually isn’t that big of a deal. It may be sweating it out the first time you see it and wondering how to deal with it, but by the time you get to trial, it’s old news. And as you say, if you preempt it in opening or in your own client’s testimony, it becomes really boring to most people.

Liz Lenivy:

And Mary, can I add something because I approached your dad with a similar issue that I have in a couple of cases where just pretty lengthy, preexisting a pretty lengthy history of a preexisting injury and needing treatment for it. But obviously something about this incident at issue has now put my client over the edge into needing surgery into changing their lifestyle, whatever. I mean, your dad told a story about how he tried to and successfully did eliminate this problem, and it’s getting it out first. That’s the benefit we have as the plaintiff is that we get to talk to the jury first. So what he explained to me that he did in this particular case, the way he explained it was guy had years and years and years of back pain. He was a laborer, blue collar worker. Oftentimes that comes with physical injury and then he suffered some type of injury that resulted in him being unable to work. But of course, this guy’s got just mountains of records from his long years of back pain and needing treatment for it. And so what your dad did was he got up there during opening and he went through every single record of all the back pain,

Mary Simon:

Oh, the priors,

Liz Lenivy:

All the priors. And he said, but you know what? Throughout this time he was able to work and then this happened and now he can’t work. And what that does is it kind of sucks the air out of the room when the defendant stands up and is like, well, I guess I’m going to repeat all of the records that Mr. Simon just showed you and the jury sitting there, why we know all of this already. It’s not like he’s hiding it. So I think that that’s the important thing is getting it out early because the worst position you can be in is if the jury thinks you’re hiding something from them. So I think addressing it, embracing it, and then moving past it and hopefully signaling to the jury that none of this really matters that much because we are here to talk about this one thing and how my client’s life is different from the day before this accident and now the day after and all of the days after that is advice that your dad gave to me, and I think that I’m definitely going to use that going forward the next time I’ve got a trial, one of those,

Mary Simon:

I was even thinking about some of those issues, whether it’s a preexisting condition or missing medical appointments or whatever your bad fact is. I’ve even seen you can get that information out even in jury selection, you can talk about that exact thing and see whether or not people will already kind of fault your client for their situation. But I’ve seen attorneys use a different tone sometimes in their opening statement or in jury selection when they’re talking about the bad fact. I mean, for example, if for some reason in a case it’s coming in that the client smoked or something, if that is coming in a case, I’m curious what you all think, and maybe it’s just such a lawyer thing where it depends on the circumstance, but do you think it’s better to just say it in the same manner, in the same tone that you’re talking about the rest of the case?

Or do you think put a different tone on it of now just so you know, this person did this, but that’s not the issue that we’re here today. Do you put a pin in it in a different tone or just how are you integrating that into the client story? Or are you just asking questions about it in jury selection and not mentioning an opening? The thing that I’m wondering is yes, get out ahead of it, but the way that you say it, even as an audience member, if someone’s telling me something, if the client’s telling me something and they drop the bad fact in it the way that they say it, I have thoughts about it. You know what I mean? So as a juror, I can only imagine that if you’re about to say the bad fact that the client smoked or they missed their doctor’s appointments or they only went to two PT appointments or whatever it is. Do you say it in a different way than you’re saying it in your opening?

Amy Gunn:

I do, because it’s just me. It makes me mad because I know and the defense knows. And the experts know, let’s take smoking for example. Sure. I mean, sure, there are some studies if sometimes smokers have poor or healing. So if you’re talking about some sort of surgery and there’s an infection or whatever, there’s a mild association there. You’re always going to get some expert to say, smoking is the problem of whatever is wrong with this person. And because they’re an expert and because they can point to a few medical studies or whatever, then the judge is going to let ’em testify and it’s going to be out there, so now you have to deal with it. And so that kind of irritates me, should it probably not, does it? Yes. And so my technique would be to give it the back of the hand, sort of like, Hey, you’re going to hear about smoking from them a lot. Ask yourself why they’re not going to talk about the defendant’s bad acting or the other issues that she has or every other thing that they, cause they’re going to spend, I don’t know, half their time, maybe you can keep track talking about the fact that she smokes a cigarette three times a day or whatever it is.

And I don’t know, I am not sure the last time I had to do this, but I can see myself probably, I need to tone it down a little bit, just getting mad thinking about it and all the history of how many times they’ve tried to distract for these things. But I would say that would be my style to give it a little bit of, Hey, get this. This is what they’re going to try to sell. You don’t buy it.

Mary Simon:

And I like that. I feel like that’s more of a, even hearing you say that, I can picture you saying that in a Courtroom too, and it makes me feel snarky and it makes me feel more relatable. Like you’re talking to this group of people just laying it out there, what they’re going to hear versus some sort of, I don’t like the more somber sort of just so you know, the client did X, Y, Z, but that’s not what we’re here for because that has a totally different connotation in my brain than you’re going to hear a ton about this from those folks.

Elizabeth McNulty:

Yeah,

Mary Simon:

You’re going to hear about it for four days in a row

Elizabeth McNulty:

From

Mary Simon:

Seven different experts, so distracting, but they’re going to keep doing it. Yeah, that’s a good strategy.

Elizabeth McNulty:

I think that works well, as long as you think that you’ve probably gotten off the people that will really bother during jury selection, I think the only fear would be that it will really highlight how much of an issue that is. But if you do it in a way that sort of plays to it and that people find charming, then they like you.

Amy Gunn:

Yeah, I totally agree. I think you do have to hit it hard and voir dire and make sure that the people that it really bothers that they’re gone.

Liz Lenivy:

Mary, your question made me think of a story from a couple of years ago, and I wish I had seen this myself. I’ve only heard about it secondhand, but one method that an attorney used, I believe we were local counsel on this case about embracing a bad fact or handling a bad fact in jury selection, was basically overselling the bad fact. And he did that In this particular case, I think the client had had some type of criminal history, maybe, I dunno, grand theft auto, some type of property. I remember it being some type of property charge. He had served his time, paid his debt to society, was a law abiding citizen, and then was injured later and now was suing for those injuries. The attorney, plaintiff’s attorney during voir dire stands up and says, my client has a criminal history, does that bother anyone?

And most of the people are like, no, no, no, we can be fair. We don’t have to judge him for that. And he says, okay, raise your hand if that’s something that’s not going to bother you. And mostly everyone raises their hand and he goes, okay, now this is the part where I tell you it was for child pornography and sort of very tense moment in the room and you see a couple hands drop. Now we are going to judge him in the kind of person he is because he has done something heinous. And he goes, okay, but it’s actually not for child pornography. It was for Grand theft auto. And everyone’s like, oh, we don’t care about that. He didn’t hurt any kids. It was just a couple cars. Nobody cares. And I think that that was, he’s a good man, who cares. I think that’s such a great example of it’s like conditioning. Exactly, exactly. Good. And so he took a bad fact that I’m sure the defense was so ready to harp on the fact that this man was a criminal and he did bad things and he’s a bad person, so you shouldn’t give him any money and you should judge him for it. And it completely took all of the heat out of that particular fact because who cares? Who cares? It’s just a couple cars. Who cares? That was so

Mary Simon:

Funny. That’s great conditioning too. I also think that it doing something like that and embracing the bad facts in your case, almost normalize your client. It kind of reminds me of there’s every single one. I mean, they’re in litigation. There’s two sides we’re arguing about it. I love when clients will call and I’ll be preparing them for their deposition on certain topics or something and they’ll even get flustered with me, but that’s not how it happened. And they’re going to ask me that. And I’m like, everything that you tell me that happened, they believe it didn’t happen. They have a completely different universe that they live in when they’re asking you these questions. So I’m like, you don’t need to convince me of what the truth is and what happened. We know that. I was like, I’m just preparing you to not have to leap across the table at the other lawyer who’s asking you these questions that probably feel insulting.

I think that even preparing them in those moments of what even the other side, whatever they think is a bad fact, they’re going to spend a long time trying to dig and dig down on that and telling the client to just speak truthfully about it, normalizes them so much. You know how a lot of times in our cases, our clients will have in the records, no matter what type of case it is, and quite frankly, I think everyone in any room that any deposition is taken in, the lawyers court reporters, videographers included, probably have this in their records where anytime they get hurt, they’ll go in for a follow-up appointment and they’ll have a day where it’s not as bad as the first day patient showed up today doing well in good spirits. That’s a classic line that I think everyone has seen in medical records, and I have had clients before who when they’re presented with that record that they’ve never seen before and they didn’t write, and they don’t even remember that doctor’s appointment that they’re being asked about. So on that day, you were doing good, right? On that day you were doing well. So at least six months after you were doing better, right? That’s not a bad fact in my mind, but not preparing your client in that moment can make it worse than it

Amy Gunn:

Is. They get real defensive

Mary Simon:

And they get angry and you weren’t there. And I didn’t write that and I didn’t tell my doctor that. I’m like, you probably did, and that’s okay.

But as long as we know about it and can talk about it, it has morphed more into the client being able to say, I didn’t say all my days are bad. I just have more bad days than good days. So maybe that day when I went in, it was one of my good days, which aren’t the same as my other good days, but before this. But they’re able to put a voice to it that just takes that and you could just crumble up the record and throw it on the ground. And the preparation piece to that makes all the difference with a client, especially when they’re being pressed on questions, when they’re sitting there looking at someone who’s asking the questions, who they’ve never met before, they feel threatened by, they feel insulted by and to just keep their cool and sit there. I mean, even to Amy’s point, it aggravates me sitting next to them. I’m just thinking, just take a breath before you answer the question, please. Well,

Amy Gunn:

Part of the prep to avoid, I think being in that trap is when clients are asked definitive questions like yes or no, if you ever had back pain before, have you ever had this or that? Have you ever done this or that? Because I’m always suspicious that they’re asking for a reason versus it’s just on the outline they’re drawing my client into something that they’re going to lie about or misremember. And so I always say to my clients, I always say, don’t say always and don’t say never. So I will say, it’s something that you 100% remember, then that’s fine, but let’s be fair. Does anybody remember a hundred percent of anything? No. And so not buying into the, oh, I’ve never had back pain. I’ve never done this, I’ve never done that. No. Please don’t ever say never and never say always just say, I don’t remember that. Or most of the time that’s the case and you’re going to avoid a lot of traps that way.

Liz Lenivy:

I think the other thing too, Mary, to your point about they have one good day or they have a couple of good days in there, it’s part of protecting ourselves. We have to find the good in whatever situation we are in. We can’t constantly only focus on our pain or our discomfort or our disabilities and things like that. So Amy, this is a phrase I learned from you and I use it all the time with clients is this is your new normal, so this is a good day for you under the new conditions that you have been forced under through no fault or little fault of your own, as opposed to can you imagine what you were or the person you were a year before this incident or six months before this incident? Would you have been happy six months before this incident under the conditions that you are now under? No, but you are protecting yourself. You are trying to make the best out of a bad situation. And I think that that is not only empowering to the client of, wow, I’ve come a long way. I’m really doing this for myself. But it also makes juries like the client more of, at least they’re trying to make the best out of a bad situation. So if it’s possible to try to put that situation into context that way, that’s a strategy that I’ve employed with clients.

Mary Simon:

I also think with that it lessens the ability to make it a bad fact. On the other side, when you’re doing that, there probably are some attorneys who approach cases, plaintiff attorneys, who approach cases when their client is hurt and our clients are catastrophically injured. In some of our cases that we’re working on, even in those cases, none of us are standing up in front of the jury saying, there’s never going to be anything good that ever happens in this person’s life ever. We’re always talking about the manner in which they try to find bits of joy or happiness, even though it looks different. People appreciate that characteristic in someone. I’ve had clients before, and for the most part, these are clients who are older men who will continue to go to work, but they call me and complain a lot about how terrible work is, but they won’t not go to work.

They just won’t. That’s what they know and having them, and it takes a long time sometimes with that demographic to spend time and get them to open up a little bit more about what that job means to them and what they’re willing to put up for it, but it makes a world difference of them explaining that versus, well, you still can go to work, so you’re fine. But if they can put some words to that, it goes a really long way. But I’ve had cases before where the defense attorney will subpoena or take the deposition of what could be described as an estranged family member or an ex-boyfriend or an ex-girlfriend or someone who for some reason has ill will towards our client. So when that happens and the deposition’s coming, and that witness is already, and they’ve spoken to the defense attorneys about all the bad things they think about the plaintiff, what on earth do you do in that situation?

Amy Gunn:

Well, if this is going to be a witness, I guess I imagine the defense wants to take this person’s deposition because they think they’re going to get dirt on the plaintiff, and that’s the whole point of it.

Mary Simon:

They’re making bad facts,

Amy Gunn:

Making bad facts, whether it’s relevant, who knows? But they’re going to go for it. So defense attorney does the direct exam, gets some bad facts, and now it’s your turn. I think that you walk into it worried that everything they say is going to be bad. It doesn’t always work out that way because when someone is asked on the phone in an informal situation, then they’ll have all kinds of shade for this person. But when they sit down under oath in a very formal setting saying, I swear to tell the truth, I think it’s harder for some people. And so your outline or your bullet points for this person are always going to include taking this person down. So you’ve done your work on this person and you make it about this person and how they hate your plaintiff and all the reasons why they’re out for revenge or just jealous or who knows all the reasons why people make up things. I don’t know. I mean, I guess we’re assuming what they’re saying isn’t true, but certainly you have to listen very carefully to what the actual testimony is. It may not be as bad as it’s let on to be, but you also don’t want to look like you’re picking on the person because they’re just telling their

Mary Simon:

Quote truth. They’re a PA

Amy Gunn:

For the other side. Yeah, exactly. Yeah. And so I will always just be very even in my questions now, Mrs. Jones, you and Mr. Plaintiff were married for six years, 20 years ago, right? You haven’t really seen him for a number of years, or just make it very small, just show why this person, number one maybe isn’t correct on what they’re saying factually or if they and or would have a reason to smear this person and or benefit from it, have an interest in what they’re saying for whatever reason. So I think it’s just like any other cross-examination looking to diminish the value of what they’ve said, but because they’re not an expert, you have to do it in a way that doesn’t make you look like the bully.

Mary Simon:

That makes sense. And it does remind me, I worked on a case once with my dad where there were a couple witnesses like that, but one of them, it really didn’t go the way that the others, it really does. It really didn’t. I remember my dad asking him two questions of, because he hadn’t seen this person in so long, it’s like, when’s the last time you saw him? Do you know anything about them in the last 10 years? No. We went, wonderful. Have a great day. Thanks for your time. And we all were like, well, that was anti-climactic.

Amy Gunn:

It does often, that’s why I mentioned that first, because you need to be loaded for it depending on what their answers are. But oftentimes it’s just not that exciting. It’s another example of it really makes you sweat in the moment, but by the time it hits the jury’s ears, it’s kind of boring.

Liz Lenivy:

Yeah, yeah. I’m thinking about an evidentiary hearing. We had one time where it was two plaintiffs fighting over an estate, basically how it was going to be divided up. The other plaintiff wanted a certain amount. We didn’t think that was fair. We wanted a certain amount. We acknowledged that in this particular case, the decedent had not had much of a relationship with our client. Through no fault of her own, they did not have a relationship when she was a child, and that is not ever the child’s fault. And I remember at this particular hearing, the other plaintiff brought a family member, an older family member, and I remember feeling terrible for this woman. It seemed like a really sweet old lady, and I was going to have to get up there and cross-examine her. But to your point, Amy, the strategy was to go up there and to be real nice and talk very kindly to this person and say that you’ve talked about the lack of a relationship between my client and this relative.

Was that her fault? Was that because she didn’t want to see the family member? Oh, no, no, no. It was absolutely not her fault. Do you know if she was actually working with other family members to try to reconnect with this person? Oh yeah, she Did she express to you that she wanted to reconnect with this person? She was making efforts, yes. Do you know how she feels, or has she talked to you now about how she feels that this opportunity is gone forever because this person has died? Oh, I know. She feels terrible about it. Okay. Thank you, ma’am. Sit. So it was a situation where this no, down, this woman was clearly brought in to establish that there was no relationship. But I think if you approach it in the right way, oftentimes it does end up kind of going over like a lead balloon. The other thing, and I noticed this was every time she answered, she did not look at me. She looked at my client and I made sure I stood in a way that my client was visible because my client was genuinely a really good person, very honest, very earnest, and this really was not her fault that this happened the way that it did. But I thought it was important too that in this situation, this witness, you’re answering my questions, but you need to ultimately answer to your relative in this situation who,

Again, this was not her fault.

Mary Simon:

I think that’s a good lesson to take too. And it even comes back to being prepared both of those situations that you talked about, which is what we started with, which is ultimately just be prepared in any circumstance where you’re going to be presented with a bad fact, which probably is going to be most of the cases. That’s just how things go. Well, ladies, thank you so much for a great discussion. And to kind of sum it up for our listeners, a couple practical tips for dealing with bad facts in your cases are really be prepared with those facts. Get out ahead of them. Prepare your client, prepare your experts, and do the best that you can to come up with a strategy to just make it not as an important part of your client story. And most of the times when you do those things, it ends up being something in your case that you can really embrace and make your client more relatable to the jury. Thank you so much for listening to another episode of Heels in the Courtroom. You can reach out to us with any questions or comments at comments at heels in the Courtroom law, and we look forward to talking to you next time. Thanks.

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