EP02: Defending a Defensive Client

Episode Notes

Transcript

Christine Byers:

Welcome to The Case Doctors. I’m your host, Christine Byers of Simon Law, and I’m joined by the case doctors, John Simon and Alvin Wolff. Now, between them, they have more than 80 years of experience as plaintiff’s attorneys. So with all that experience, now they’re offering you the chance to tell them about the various problems or issues that are coming up in your cases and hear how they would handle it. But first, let’s turn to some of the civil cases making headlines. And here with the doctors, the case doctors have to say about them. This one has to do with a Chinese electronic cigarette maker. They have removed to federal court a suit alleging that the battery in one of their products exploded just days before trial was set to start in a Texas state court.

John Simon:

The removal was days before.

Christine Byers:

Exactly. So they’re ready to go to trial and then all of a sudden the company filed a notice of removal for the case telling the court that it believed plaintiff was not intending to present evidence against the Texas-based retail co-defendants named in the suit, and therefore there was a diversity jurisdiction warranting removal. Have you guys ever had the carpet pulled out from underneath you before a big trial like that before? You

John Simon:

Know, this is crazy. In the last two weeks, it has happened to our firm twice in two separate cases where it was actually wasn’t a removal. It was a writ. It was a writ to the court of appeals on issues. So it’s a little different than a removal, but yeah, it’s just a tactic to try to get out of … They want a continuance. The continuance is denied. They’re not ready. And that’s the next best thing.

Alvin Wolff:

Defendants like to stall. They also like federal court. I just had one removed in Illinois from Belleville to federal court, which it’s not going to go anywhere, but these judges don’t have any timelines within which to rule on anything. So a lot of cases can die from delay.

Christine Byers:

And

Alvin Wolff:

I think that’s one of the tactics these defense lawyers use.

Christine Byers:

Die from delay. I like that.

Alvin Wolff:

Justice delayed. Justice denied.

Christine Byers:

Well, now it’s time to turn to our email inbox for the cases our viewers have sent in for the case doctors to diagnose. Now, just so everyone knows, we’re not going to reveal where these cases came from. We’re not going to name any names or firms to protect the confidentiality of the cases. Instead, the case doctors are going to just focus on the issue in each of them. This comes from an attorney who says, “I’m representing a client in a disputed liability car accident case. And while the facts are on our side, I’m very concerned about how they’ll handle questioning. During prep, they’ve shown a short temper and tend to get defensive when they’re asked tough questions.” This kind of goes to- We never

John Simon:

See that, do we?

Christine Byers:

This kind of goes to your point about talking about your client and how they present. I can already see opposing counsel trying to provoke them into losing their cool during deposition or on the stand, which could really damage their credibility. Have you ever dealt with a client like this before and any tips on how to coach them to stay calm and composed under pressure?

John Simon:

Man, I’ve dealt with that many, many times and I don’t know. What do you do?

Alvin Wolff:

So one thing I did just last week was I came up with questions to my client and said, “How would you like to be remembered? If you were going to write your own obituary, what would you want people to say about you? ” And then I would tell them, “This is how you need to act in your deposition. You want to be that kind of person. Do you want to be a hothead? Do you want to sound like a victim? Or do you want to project a positive opinion of yourself?” The other question I asked was, “What would your cane say about you? If your cane was sitting against the wall, what would it say about everything you do? ” And I ask these questions where I make them get introspective and we’ll talk about it and I’ll say, “Now I want you to print these questions out and I want you to write out answers for me.

” And I could actually look them up on my phone because I just sent the email last week, if you’re interested.

John Simon:

I’ve tried different things and approaches and some clients, a handful, you know what? No matter what you do, it’s just their nature. They’re going to get a little bit angry. I had somebody a couple months ago who, it’s a clear liability truck accident and he was hurt really bad and the defense attorney got under his skin is asking him about his wages and all this other stuff. And he interrupted and they got in an argument in the middle of the depo where my client said, “Am I on trial here? I’m not the defendant. Why are you asking me all these silly damn questions? Your guy ran into the back of me. ” And which of course he was right, but that’s an issue.

We work real hard and practice.That’s a good thing to try to practice, have somebody else in the office question them about it. Sometimes we’ve even videotaped them so they can kind of see how they come across on the video. But it’s something that … I’ve had cases with clients where the only thing I tell them the morning of trial is just be nice. Be nice. And especially if it’s a med mal case with a surgery where they’re not really adding anything to the liability. Jurors help people they like. And if the more likable your client is, the better they’re going to do.

Christine Byers:

Yeah, absolutely. That’s very true. Jurors help the people they like.

Alvin Wolff:

These are some questions that I have been proposing to my people just to get them thinking about the case. What major thing has become unbalanced and what needs to be destroyed beyond the verdict? What did you want out of this before you called me? What has been taken from you? This is an important one. What do I need to do to get excited about your story? Because if I can’t get excited about the case, there’s no way a jury’s going to get excited about it.

Christine Byers:

Amen.

Alvin Wolff:

Despite everything that’s been taken from you, how are you succeeding? What’s your favorite movie? If we were to write a movie that would win best screenplay about you, what would the story be?

John Simon:

Are these things you ask at trial or just in primary?

Alvin Wolff:

These are questions I ask to get my client thinking about the case and how they need to present themselves to the defense lawyer as well as to the jury. So

John Simon:

Even pre-depo.

Alvin Wolff:

Oh yeah. Oh yeah. And I make them think about it. You get the client thinking about these things and it really gets them focused about the case and it gets them focused about what their job is going to be.

John Simon:

The other really good point I think is what I try to do is I’ll try to not elicit all the problems and the disability deficits from the plaintiff, but I’ll get a family member, if it’s a guy that’s hurt, maybe the wife or vice versa, where the people around them are, it’s a lot easier for them to talk about the changes that they’ve seen, the difficulties, the challenges, things that they’re unable to do that they enjoyed doing before, versus somebody else. I mean, you sitting there, poor me, it just doesn’t sell with anybody. As Alvin was saying earlier, you want to be that person who gets over things, but you don’t want to ignore the damages in the case. So a lot of times pick … Even a non-family member is even better. Somebody, a friend from church, somebody that they worked with, sort of somebody that knew them before and after who can come in and talk about what effect this has had on them, because that’s it.

That’s the story that you have to tell. And your client is Exhibit A. And I’ve told jokingly, but maybe not so much jokingly, I’ve told other lawyers, “You let me pick my client, I’ll let you pick the

Christine Byers:

Facts.”

John Simon:

And there’s nothing more important than your client and how they present. And I’m sure you’ve had this. I’ve had cases that I’ve decided not to engage in just based on the client.

Alvin Wolff:

Well, picking a good client is very important, but to go with family members, I did have one funny thing happen to me once that backfired in court. I asked the wife, “How’s your husband different?” And she says, “He don’t play with me anymore.” And she’s got a pregnant belly.

Christine Byers:

No way. How did you handle that one? I mean, I’m sure that caught you off guard.

Alvin Wolff:

It’s one of those cases. You roll with it. I probably thought to myself, “Oh

John Simon:

Shit.” So another George story, phenomenal guy, just great guy, great lawyer, better person. And one of the first cases as a young lawyer, I guess he was probably 20, 30 years older than me, and I had a case in a very good venue, City of St. Louis, and it was against an insurance company. It was an uninsured motorist claim. And so I had insurance companies, the named defendant, had a good client, good liability, and I was really pushing. I wanted to try the case and George is defending it. And I got up and did kind of a mediocre voir dire and asking some of the wrong questions and trying to get through it. And George stands up and everybody’s kind of looking at me like, “What the heck’s this guy talking about? ” But I get through it. George stands up and says, “Well, here we are in the city of St. Louis and Mr. Simon’s got a client who’s a really good guy and he’s hurt real bad.

And here I am representing the insurance company.” He goes, “Should I just leave now? Should I just pack up my bag?” And then everybody starts laughing. And by the end, I’m thinking that I could just see the value of my case going down and down and down as he got further into the voir dire.

Alvin Wolff:

Sory works. Yep.

John Simon:

Yep.

Christine Byers:

All right, gentlemen, we’re going to go to another email from our viewers. This one is from an attorney who says, “I’m working on a dog bite case where my client was bitten by a neighbor’s dog, resulting in a minor scar on their arm. The client received stitches but didn’t require any major medical intervention. Insurance company offered 75 grand, but my client refuses to even entertain the idea of negotiating because they believe the dog owner should be punished with a big verdict. I’ve tried to explain that punitive damages aren’t on the table unless we can prove prior vicious propensity, which we don’t have strong evidence for, but my clients refuse to counter. They’re stuck on the idea that the insurance company has more money and should be forced to pay more. How do you handle a client who won’t engage in the negotiation process? Should I just let them have their day in court or is there a better way to get them to move?

John Simon:

Sounds familiar. What do you think?

Alvin Wolff:

I say I invite you to go get a second opinion from another lawyer and let them get educated from someone other than me. And it may be that I just take her down to John Wallick’s office. I might have them go see anybody you want. I did have that situation on a dog bite case where policy limits were offered.

John Simon:

I remember talking to you about that

Alvin Wolff:

Case. And the client didn’t want policy limits, but then I started talking to her about money and the way my contract is, if I have to file suit, it’s going to cost her more money. And I said to her, “Listen, you’re getting this for this right now. When I file suit, eventually you’re going to get this much money and you’re going to get less.” So she saw the light of day.

John Simon:

I run into that fairly often. And I think part of it is if you spend … The more time you spend with your client and the more trust you develop over time, the more likely they’re going to follow your advice. If it’s somebody that you’ve had for two or three months and there’s a demand or an offer, a lot of times they think, “Well, you need to do more work or put more work in. ” A lot of different scenarios can lead to that. But what I do is I never under any circumstance pressure or push the clients. That always works the wrong way. They’re under a lot of pressure. I tell them, “Here is my best advice to you. Here’s what I think is a fair offer or not. ” If it’s an offer I think that they should take, I said that I think your chances of getting more at trial are less than getting less, but I don’t pressure them.

And I think in the last 15 years or so, I’ve never had a client not follow my advice and I attribute that to … I don’t pressure them at all. And part of it too is a lot of times, even when somebody wants to do it for reasons other than compensation or whatever, there’s so much pressure put on people getting ready to go to trial. I don’t know anybody who’s not anxious or nervous about going to trial and being put on the stand and cross-examined in public and you don’t need to put any more pressure on them. I mean, I had one case in particular where it was a good case. The company offered their policy limits. It was a small company. There wasn’t any more money. There wasn’t going to be any more money. It was six months before trial. We were at a mediation and my client, it was a serious case, turned it down.

It was a death case involving his mother. And the defense attorney was all been out of shape because of what? And that’s all we have. What are you wasting everybody? And I just didn’t press him at all. And several months went by and he would call me every now and then and say, “What do you think? ” Or try to reengage me in the discussion. And I said, “Look, I told you the only thing I can guarantee you is you’ll make less money if we try it than if we don’t.” And because they’re trial expenses, but I said, “I understand and respect your opinion. If it’s a principle of the thing, you hired me to try the case if that’s what you want to do. ” I got prepared for the case. We went into the courtroom. He was sitting next to me in the middle of the voir dire.

We took our morning break and he came, called me out in the hallway and said, “I’ve decided to settle the case.” At one point, I had a case, and this was a little bit different scenario. I had two defendants in a product claim and both design component parts. So I had the identical case against both. I didn’t need both of them in my case. I could dismiss or settle with one and it would be the exact identical case. Both had significant coverage. So one of them was engaging in settlement at a mediation and the other wasn’t. And to me, logically, it was a no-brainer. At the end of the day, they offered some pretty significant money, one of them, and I said, “You can’t not take this. This is just like taking money. It has no effect at all on your case.” And it was the weaker defendant, and I couldn’t get through to him.

And I felt myself pushing a little too far or too hard. And I literally called him in to a conference room. I went back to the conference room with him and said, “Tell me what’s on your mind. What are you thinking? Why is this not registering?” And he honest to God, he said, “John, I’m looking around, you got this fancy office and all this stuff and the verdicts, and I just know you wouldn’t have worked this hard on my case and lose it. ” He was so confident that I was going to win his case. And so I said, “Look, last month, and it was true, three lawyers from my office, we each tried a case, and two of us lost our cases, and one of them settled.” And I said, “We had one of the best months ever for the settlement of the firm.” And I said, “But that’s because we have multiple cases.You only have one.” And he ended up coming around, but it was just one of these things where I lost my patience because I’m like, “This is a no-brainer.” Under the circumstances, you got the same case.

And by the way, it’s not a dog bite case. It’s a

Christine Byers:

Dog

John Simon:

Attack case.

Christine Byers:

Oh.

John Simon:

Dog attack case.

Christine Byers:

Gotcha. Important distinction. Turns

Alvin Wolff:

For car crashes.

Christine Byers:

I see.

Alvin Wolff:

And I was trying a case once where my client turned down almost seven figures on a dog attack case and we started picking the jury. I told the jury she may not be there the whole time. And I looked at her and she’d OD’d on her fentanyl lollipop and her head was back.

John Simon:

In the courtroom?

Alvin Wolff:

In the courtroom. And her eyes were rolled back in her head and she had this drool going from the corner of her mouth down to her earlobe.

Christine Byers:

Oh, dear.

Alvin Wolff:

Judge Cone called a recess. She walked out of the back of the courtroom and left the courthouse.

Christine Byers:

Really?

Alvin Wolff:

Yes.That was an amazing case. And that one was worked up all the way.

John Simon:

So this wasn’t my case, but it was an attorney who had left my firm and was at another firm and he had taken a case, one of our cases with him. And it was a woman who, it was in St. Louis County and it was a woman who was a slip and fall case. And she was in her 80s or late 70s or whatever. And the defense was, she’s just clumsy and fell. And so I think it was his first trial and I didn’t witness this, but I heard about it and she was late. She was late for coming in, but the jury was in the box. The veneer panel was in the room and she comes walking in and she’s one of the last ones to come into the courtroom. And what does she do? She trips and falls on the ground and laid there until they had to call an ambulance to come in and take her out.

Christine Byers:

Oh, dear.

John Simon:

So it was a

Christine Byers:

Continuous

John Simon:

Continuum. She was like walking very cautiously down the hallway, down the aisle and just fell right in front of everybody. And I guess they all waited for the ambulance to look at their- It

Alvin Wolff:

Reminds me of a case my office had where this lady that weighed about 300 pounds fell at one of these all you can eat buffets.

John Simon:

Well … You got a good vortex. You got a good voir dire issue there. You do. Good voir dire issue.

Christine Byers:

Okay, John and Alvin, great information. And that’ll do it for this episode of The Case Doctors. If you have a case that you would like the Case Doctors to Dissect, send us an email at [email protected]. Once again, we will be keeping all names and cases confidential. Thanks for joining us, and we’ll see you next time on The Case Doctors.

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