EP 616- Ten Pitfalls in Client Depo Prep Part One

Episode Notes

Transcript

Announcer:

Welcome to The Jury is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm and St. Louis attorney Erich Vieth

Erich Vieth:

Welcome to another episode of The Jury Is Out. I’m Erich Vieth

Tim Cronin:

I’m Tim Cronin.

John Simon:

I’m John Simon.

Erich Vieth:

Today we’re going to talk about preparing your client for deposition.

Tim Cronin:

So this is a list we made that we learned from the School of Hard Knocks, lessons we were talking about a little bit before we started that hopefully once you learn from experiencing it once, you don’t have to relearn. So a little bit of background, but then what we’re really going to be talking about is the top 10 pitfalls you want to try to help your client avoid so they don’t tank their own

John Simon:

Case. Wait a minute. Don’t you just need to give them good directions to the office and tell ’em to get there at least 10 minutes before the deposition starts so you can spend a little bit of time telling them what’s going to happen and what’s going on. That should be enough, right?

Tim Cronin:

Yeah, if you want to gamble with their case and not have ’em prepared, yeah, that should be fine.

John Simon:

You know what? I’ll say this. I think it’s borderline malpractice to prep your client the day of their deposition. I would never do that, and I would never like,

Tim Cronin:

Unless you’re doing approve of any six hours before their de starts.

John Simon:

You know what? Because you don’t know what you’re going to find or come up with. And most of the time you need to figure out multiple

Tim Cronin:

Sessions,

John Simon:

Multiple sessions, because you figure out what’s out there, what you don’t know about. You need to know anything that’s out there you need to know, but you also need to know how to handle it, how to deal with it.

Tim Cronin:

And I think we’ve said on this podcast several times, the most uncomfortable period to the up until trial, the most uncomfortable two time periods in your case are during your own client’s depo and your own expert’s depo, because we don’t have control over

John Simon:

What’s happening. The most dangerous points in the case are when your client sits down for a deposition. And guess what, everybody, this applies to our friends on the defense side more so as much so or more so as the plaintiff side experts too. Experts and clients and experts are experts, but when your client says something, they’re the plaintiff, they’re the party in the case, it’s binding on them.

Tim Cronin:

So it’s like a corporate rep for the defendant,

John Simon:

Right? Right. If they say it, you bought it and you’re stuck with it.

Tim Cronin:

I think these rules, these pitfalls to avoid, so you don’t tank your case, apply for the plaintiff and for whoever the rep is. For the defendant.

Erich Vieth:

I started as a attorney for a defense firm and I was told have the client come in one hour before the deposition, and I’ve got stories I won’t tell ’em now, but I can tell you there were things that were really embarrassing that came out because the client’s nervous. You get an hour, even if you give ’em an hour, it’s like magic. When you talk to them one day, they go home, they come back, it’s all different. They’re calmer. They know the issues better, more intuitively. It’s all good when you give ’em another, at least another day.

John Simon:

I think too, that if you put yourself in the client spot, you hope your client hadn’t been through this before for their sake. And so most of the time, this is the first time they’re involved in litigation, much less a deposition. And I think you’re always nervous about what you don’t know, right? And you sit ’em down just well in advance, a month in advance, two months in

Tim Cronin:

Advance. They think they’re testifying in court until you explain it to ’em. I’m testifying in court in front of a judge and it’s like, no, no, that’s not what’s

John Simon:

Happening. And the other thing, let ’em know what the setup is, where they’re going to be seated. I tell ’em things like, look how to dress, how to appear. But I’ll say, you’re going to sit right here and I am going to be sitting right next to you. And this lawyer’s going to be very polite and respectful. I usually give ’em some background on who the other lawyer is and the law firm and even things, not necessarily it’s all of this before you even get to what the merits of the case are. But just to relax ’em a little bit, how long it’s going to last. We can take a break anytime you want, and that’s all you need to do. You need to just answer the questions, be nice, answer the questions as best you can. Truthfully and honestly,

Erich Vieth:

I was a brand new attorney. I’m sitting in on a deposition to see how a deposition of a defendant is taken in an auto case. Our client was driving a car down the highway. The attorney I was observing talked to him for, it might’ve only been a half an hour. And they went into the deposition and the question was, did you take your eyes off the road at any point? And he said, yes, I did. But where did you look? Well, I dropped my cigarette lighter and I had to pick it up from the floor of the car. How long did you take your eyes off the road to pick up your cigarette water? He said, three minutes. And he said he was going 60 miles an hour. So the plaintiff attorney knowing that this was a mistake, he said, look, some people when they say minutes, they mean 30 or 60 seconds. And some people mean moments, they just mean three moments. What did you mean? He said, I meant three minutes, 60 seconds each. So that could be solved. Was he

Tim Cronin:

Trying to get his insurance company to pay the claim so

Erich Vieth:

It would settle? I don’t know. But you talk about don’t do that twice. And the thing that you don’t do, you

Tim Cronin:

Should find that out before your clients do

Erich Vieth:

Something. Exactly. And if you have a longer relaxed session where you give your client a chance to express themselves, you would’ve pointed that out and then they would’ve thought abou t it. And obviously it wasn’t 60 seconds, three minutes, yeah, they would’ve hit somebody

John Simon:

Else earlier. I have something similar to that where it was my client that I was representing in a product liability case, and it involved a multi-piece wheel, and we had a chain of custody for the multi-piece wheel. The accident happened two or three years before. He’s given a deposition and it had been in our custody, it had been tagged. There was no dispute. We had the wheel, the multi-piece wheel. And during the deposition, he was being confronted with the fact that the wheel was kind of old and rusty and bent and he was assembling it and he was being confronted by saying, well, now you know, understand from your training, you’re not supposed to assemble this unless it’s in good shape. And they were trying to get him to be defensive about the fact that he shouldn’t have used this wheel because it’s too old or beat up or whatever.

And he thought, well, I guess he thought, I’m just going to put a stop to this that’s not the wheel. And I said, hold on a second. I said, take a closer look. I said, that’s the wheel we got from so-and-so and this and that. Please take a careful look at it. He looks at it and goes, Nope, that’s not the wheel. Kind of a prop, right? And so we take a break and I was like, what in the hell is going on? And that’s what he said, it’s not the wheel. And he stuck with that. Even though we had chain of custody, I mean he got hit in the head too with it. And that was part of what we argued. He didn’t know. He didn’t get a real good look at it ever. And it was knocked unconscious brain

Tim Cronin:

Damage, but damage it’s a problem. You then had to deal with

John Simon:

The rest of the case. So believe it or not, that case was dismissed a month before trial motion for summary judgment. Granted, went up to the court of appeals, got it flipped because it was a design issue and you don’t need to have the product for a design. And then there was a lot of testimony about what it looked like and we had photos and everything else, but clearly it was the wheel. But what I learned in that case was you really can’t impeach if your own client, the party says this isn’t the wheel or make some statement, you can, you’re stuck with it. You can’t impeach your own client’s testimony with other information in the case private who’s not going to work. So that case ended up turning out okay, but I got to tell you, you got to be prepared for, you got to try to prepare for everything, anything and everything.

Tim Cronin:

So background, and we’ve covered some of this before we get to our top 10 pitfalls list. I think the first thing you want to do and do it over multiple sessions is you want to put your client’s nerves at ease. And so like you talked about, John, I go over the depo process, I take them to the room, the deposition’s going to be in and show ’em where they’re going to sit. I’m going to sit, I say, these are the lawyers and who they represent. Here’s where they’re going to sit, here’s where the court reporter’s going to be. And I’ll ask ’em questions in that setting. So explain the process, explain who’s going to be there, where they’re going to be. And then the next thing I typically explain to ’em is your attitude, behavior and appearance is just as or more important than the content of what you say.

And I’ve made the mistake of not checking with my client about how they’re going to dress in their appearance before the depot. And it’s even worse when it’s videotaped, but even if not, so I never forget that anymore. No flashy jewelry. Talk about how they should dress. You want ’em to look nice. And usually the first thing I do though is I ask ’em, is there anything you have anxiety about or what are your three biggest fears to try to get those out of the way? We want ’em to be at ease, right? If you’re nervous, you’re more likely to make mistakes and try to address those. So I personally hammer at the beginning, in the middle and at the end, again, going to go through all the 10 pitfalls, but I usually give them three rules I want ’em to remember and I do it over and over again. And we’ll mix these throughout, these pitfalls and how to address ’em. I tell ’em, listen, be nice and tell the truth. So listen carefully to exactly what is asked. Be nice and respectful and tell the truth. And that if you can do all of those and keep that in mind the whole time, you should be in good shape.

Erich Vieth:

I like what you said about anxiety, that it’s important to get that out. And the reason, and I tell my clients the reason we got to calm your nerves and show you what’s going to go on. And by the way, my prep hopefully will be much harder than the actual deposition because we’re going to go over everything that they’re going to ask you. I assume, I worry that anxiety doesn’t necessarily look like anxiety. It might look like not telling the truth. So I want to get that all tamped down and have relaxed because I think that looks honest.

Tim Cronin:

So we’ve got 10 pitfalls here. They’re not in any particular order of importance, but the first one we have is lying, guessing, or speculating. Now those could be broken out into different ones, but essentially don’t lie about anything and don’t guess or speculate. Speculate about information you don’t know or don’t fully remember because that’s the same as lying. If you say you remember something or you’re guessing about something and you don’t know it, that’s

John Simon:

So one of the things that I think helps reinforce those that’s so important that to reinforce, no guessing, no, obviously you don’t want anybody lying and nobody should ever lie and you lie, you should pay the consequences for it. But what most often happens is we all express so much non-verbally. For instance, if you ask me what I had for dinner on Monday night, you can tell by how my voice, the tone of my voice, the spacing of my words, my facial expressions that I’m not really sure. For instance, somebody maybe I had a hamburger and some fries or not even maybe with the question mark, with the question mark, it doesn’t read. You really got to be clear about it. And what I do is I give ’em examples of here’s what’s going to happen. And the question, if you say, got a person with a back injury, have you ever had any back injury, injury to your back prior to this incident?

Your client’s 42 years old, they work in construction, this is the first back surgery that they’ve ever had. But listen to the question, the question’s asking, have you ever had an injury to your back? Well, who in the heck can say, of course you’ve had an injury to your back. You mean a serious injury? An injury where had to go to the hospital, an injury required medical. So you have to qualify your answers. In other words, if you’re not sure about an answer, that’s okay, but make sure your words demonstrate that on the transcript. Say, I could have had an injury to my back. I think I might’ve gone to a chiropractor at this at some point in time or this time, but I’m not exactly sure about it. And I tell my clients, that’s like a suit of armor. Being able to, when you’re sure about it, great, where you live, I’m doing dress, I’m doing right, I’m doing my best to recall it. I’m not exactly sure, but here’s what I can tell you. I remember at this point,

Tim Cronin:

If you’re guessing or speculating about stuff, the clients may think they’re giving an answer that’s good for their case, but it might actually be causing problems you don’t realize they can lose credibility if it turns out not to be true. I think you’re just creating potential self-inflicted wounds and an opportunity to the opposing lawyer to challenge your testimony.

John Simon:

And then the thing too is a lot of times you don’t want to have some phrase and say, not that I recall at this time, not that I recall it this time, over and over, over and over and over again. Because that just ruins your credibility.

That’s not what it’s for. It’s your case. You’re suing somebody. They’re entitled to ask you questions to get information they need to defend themselves, and you got to explain that to your client. You got to really work hard and do the best you can to provide full, complete, truthful, honest answers. But the reality is you’re going to be asked about things that you haven’t, haven’t been asked about or thought about in 20 or 30 years, maybe higher addresses, who lived with you at the time at this house and how many jobs you had. And what I tell the clients is I said, look, after the deposition’s over what’s going to happen, and it’s happened to me multiple times, is you’re going to get home and you’re going to call me and say, John, you know what? I messed up because I gave this answer and that wasn’t correct. Now that I remember it more clearly, and it might’ve been about a date or where you lived, and I said, what I’m going to tell you on the phone when you call me to tell me that is, don’t worry. You answered the question in a way that you’re covered. In other words, your answer wasn’t absolutely this, but if you’re not sure, just tell everybody you’re not sure about it in a natural way.

Tim Cronin:

Yeah,

John Simon:

A natural right? Right. Be honest about it.

Tim Cronin:

I’ll give them examples. It’s okay to say I don’t recall at this time or I don’t know, but I might’ve known before. But you don’t want to want to let your client think it’s okay in response to every question to get out of everything by saying, I don’t recall. I don’t recall. I don’t recall.

John Simon:

And let ’em know. Let ’em know this isn’t a test. You’re not going to be graded on it, right? We weren’t given a list of questions beforehand. We have no idea what this lawyer’s going to ask you. And so it’s okay if you don’t remember,

Tim Cronin:

And that’s how you avoid this problem.

John Simon:

It’s okay if you don’t

Tim Cronin:

Remember. Make it clear. It’s okay if you don’t remember. Do the best to say what you do remember and what you don’t.

Erich Vieth:

We’ve worked for decades finessing how to talk and spotting questions that are ambiguous, but often our clients are, this is new to them. And I think it’s worth mentioning that it can be exhausting to a client to be hearing a lot of these questions. They might get 30 in a row where almost every one of them they have to ask, what do you mean by that? Or Do you mean ever in my life or do you mean in the last year? And it is a lot of work. So I think it goes hand in hand with the just remembering to give them a break once in a while, take a break, stand up, just walk around, let ’em get a drink of water because this is hard work for a client who’s never done this stuff or can be

Tim Cronin:

Number two, do not volunteer information. So this is part of pay very close attention to the question asked, and that’s all you have to answer. So why is that a problem? What problems can exist from when you start volunteering information?

John Simon:

Well, you’re doing the other lawyer’s job for them. There might be some important fact in the case that’s helpful, it might be harmful. And what I tell the clients too is some of them think, if I don’t get this out, this good fact,

Tim Cronin:

I got to win the case in

John Simon:

My de I got to win. You don’t need to win the case in the deposition. And I said, I guarantee you, if there’s something helpful for your case and harmful to the other side and they don’t ask it, we’ll have plenty of time to talk about it and bring it up at, I’ll ask you about it at trial. You don’t need to volunteer everything.

Tim Cronin:

It’s their job to ask the right questions, to get the information they want. You don’t have to tell ’em everything you think is important. And if you provide extra details beyond what they asked, you’re just going to make your deposition go on longer.

John Simon:

The depo will never end.

Tim Cronin:

Yeah, they will follow up about everything you say. So listen carefully to the questions. And I try to tell ’em, take a beat after every question to make sure you understand what’s being asked and how you want to answer it and only answer it as narrowly as it was asked. And I almost always say, if you find yourself talking and you no longer remember what the question was, you should probably stop talking. And it happens all the time because people get nervous, right? You get nervous. And some people either when they’re nervous, they clam up. And some people, when they’re nervous, they just want to fill the space, fill the air with words. So don’t ramble. Number three, and this is really just a matter of preparation, is avoid inconsistency. You want to avoid any contradicting prior statements or testimony or irrefutable information from medical records.

You don’t want to be made to look like a liar, right? So that harms credibility. It suggests untruthfulness. If the jury thinks you’re a liar, your case is sunk. I think the answer to this one really is, we as lawyers have to help them prepare, prepare, prepare, go through your written discovery answers. If they have statements in a police report or they called 9 1 1 or any statements anywhere prior depots and other cases, go through it with them. Probe their memory like you were talking about Eric, make sure you go through the facts they’re going to be asked about so that if they say something and you think it’s probably not correct, even if they believe it is, that you can kind of flush it out with them. So it doesn’t happen live in front of a video camera and with your opponent on the other side asking ’em questions about it while you sweat.

Erich Vieth:

Yeah, pull out that incident report or medical report or whatever it is that you think they’re going to get cross examined on and put it on the table and let ’em read it and say they’re going to pull this out and they’re going to ask you about things including perhaps that sentence. What would you say

John Simon:

About that? Or you’ve get a lot of questions like this to being set up by the lawyer. The other lawyer might say, do you ever recall being treated for a broken right ankle, a compound fracture of your right ankle? And they might not remember it or they might remember it, whatever. And you can bet anything that they have, they have a medical, I tell Mike, look, number one, they know more about your medical past and your general past than you do at this point. They have medical records that honestly you’ve never even seen. You didn’t write, no, you never got a copy of them. So when there’s something like that, not only do you have to be careful in how you answer it, but one of the things I would say is if they ask you about anything that’s really hyper specific about an injury or something that’s likely in a medical record, the answer should be, well, if you have a record, I would be happy to, if you want to show me a record, that would certainly help me answer the question. I can’t recall at this time, but show me what’s in the record.

Tim Cronin:

I think it’s our job ahead of time to make sure you don’t just start prepping for your client’s depot when your client shows up to prep for their depot. We have to do our homework ahead of time. You better know those medical records as well as the defendant does, and be able to go through key ones and pull out and show ’em to your client, the ones you think that they’re going to be asked about. I try to make sure if there is anything that the other side has collected pursuant to an authorization that we’ve given them, that they have produced it to me before my client’s depo so that I have a chance to go through it. And if any statements by our client or anything in there, I cover it with them because I don’t want ’em confronted with it for the first time.

John Simon:

And the other thing too is we’ve done this before where, see what’s out there, disability applications, disability applications, employment records, but even before the client comes in the office, all of that stuff needs to be, you need to have all of it. You need to know about it, you need to question them. The client will give you a list of medical providers, as you guys know, you get the records and then all of a sudden you see another, there’s 10, there’s 10 more providers in there. So you really have to be really, really thorough in looking at everything. Number four,

Tim Cronin:

And this touched on something you said earlier, Eric, we are good at looking out for vague questions. Our clients are not, number four, not clarifying confusing questions. Don’t answer questions unless you are sure you understand what they are asking you.

John Simon:

Tim, I would add to that confusing or bad questions or bad questions, bad questions. And I’ll give you an example of what I’m talking about. Your client’s going to hear this at their deposition. If it’s an injury case, how has this incident affected your life? How in the world does anybody answer that? Every

Tim Cronin:

Right?

John Simon:

Yeah. Tell me how in every way this effect, or let’s do this. I’ve got my pen and pencil here, and I want to know every single thing that you can’t do or is more difficult doing because of this accident, and I want to know all of ’em because I’ve got a right to know all of ’em. Well, we could be here for three days and you’re not going to remember every single thing of how this affected your life. And I’ve heard some bad answers to that question and some good answers. And the best answer I’ve heard to that question is, well, I think you’d really need to go through what I went through for you to fully understand how this has affected my life. I really can’t do a good job explaining all of it to you in words or something like that.

Erich Vieth:

So here’s my lesson learned a long time ago. I told my client they’re going to ask you things undoubtedly that you’re not sure what they mean exactly. So you should ask the lawyer to clarify that question unless you’re absolutely sure what it means.

Tim Cronin:

And if you don’t tell ’em that they might think, I’m not allowed to do that,

Erich Vieth:

Right? And so I’ve seen it early on, my client would say, excuse me, what do you mean by that word or that term? Or Could you rephrase that question? And then the lawyer asked exactly the same question and they answer it. So I would just modify it to, oh, thank you. I understand. Oh, I would just modify it repeatedly. Ask for clarification until you are sure what the question is

Tim Cronin:

And don’t answer it until you know are sure, and they’ve clarified for you what they’re asking because I think that people may not know that you’re allowed to do that. And you can do it not just in your depo. You can do it on the stand at trial. You’re entitled to know what’s being asked for you.

Erich Vieth:

This is a footnote too, to much of this, but I want my clients to know, especially if they’re not used to this type of environment, maybe they’ve never been in the 20th floor of an office building and they’re surrounded by lawyers wearing suits, and it can be, and I tell them, you’re the guest of honor. You’re the person that’s the most important person in the room right now. So don’t be shy or sheepish. You’d be a real player at the table. Be kind and decent and all that, but also you should speak up and have a conversation. You’d be proud of that. Everybody knew what the question was and your answer was clear. And don’t feel that you have to just sleek off into the corner and just whisper your answers. You’re a real player.

Tim Cronin:

Yeah, you can stick to your guns without being rude. Number five though is pitfall to avoid being rude, impolite or unprofessional. Don’t be disrespectful or rude to opposing counsel even if they’re trying to bait you into doing it, you’ll create a negative impression. Juries, as we talk about all the time on this podcast, juries decide cases on who they like, who they don’t like, and that’s who they decide they want to win. Personality and kindness matter. Kindness matters. Lawyers know this. I tell my clients every time I’m prepping them, the first thing that’s going to happen after your depo is they’re the lawyer’s going to go write a letter to a carrier that they report to or to their client. And the first part of that letter isn’t going to be what you said. It’s either going to be this guy was a prick. He’s easily angered, he was rude. You can get under their skin. Nobody’s going to like him, or they’re really nice. They’re going to be really sympathetic. A jury’s going to like ’em and going to help ’em. And you are in control of what they write in that letter. And if you can maintain control and keep your calm and be polite even while sticking to your guns, then you have won the depo. It’s

John Simon:

Like a job interview.

Tim Cronin:

Yeah,

John Simon:

Like a job interview, right? We take depositions of defendants, whether it’s a defendant driver, a truck driver, a surgeon, a doctor, a CEO of a company, a safety director. And I remember, just as an example, I had a very significant medical malpractice case and there were significant damages and there was a whole lot on the line. I went to take the doctor’s deposition and the doctor was just an arrogant, complete asshole through the whole deposition, corrected my questions, tried to put me in my, it was just completely rude through the whole obnoxious, rude, obstructionist through the whole deposition. I got through the deposition, got what I needed, and I drove home whistling and singing in my car. I was like, hot damn. The value of this case just went through the damn roof. This son of a gun is going to just piss everybody off, including the jury.

Tim Cronin:

If I leave, we do a lot of med mal, right? If I leave a defendant, doctor’s Depot, and I got ’em to admit all of the things that I wanted them to admit, but I really liked them and I you were in trouble, think they’re a good guy or a good lady. I still don’t feel good about the, I’m like, Jerry’s not going to want.

John Simon:

I get that hint too, where we’ll produce our client for deposition and you get through the deposition, whatever, it’s two hours, three hours. At the end of the deposition, your client’s been questioned by two, maybe three attorneys, and they come to you and say, really, your clients are really nice young man, and you think we did it. We accomplished that. I think honestly, I think out of all these rules, this is the most important. I think the important thing, if nothing else, tell the truth and be nice. That’s kind what I’m asking to Tim. I don’t know if you remember this, and I don’t remember the name of the case, but you and I had a case involving a young man who was in all kinds of trouble. I mean, he was kind of in trouble with his schooling and he had some criminal stuff in his background I remember, and made a terrible impression. He came in the office, I was like, what the hell? When we met him to sign up the case, his mom was wonderful. He was just out of control. And we worked with him. I mean, for his deposition, he wore a suit and tie. We had him in a suit and tie. I think we even told him to get a haircut cut.

Tim Cronin:

You had him get a volunteer job

John Simon:

Before his step because he wasn’t doing anything. No. Right. And genuinely I said, it’s good for case. It’s good for you, right? That’s right. That’s right. And so I was like, what are you doing? Like 19 years old, he didn’t finish high school,

Tim Cronin:

Right?

John Simon:

And we went and got him, got his GED, and he

Tim Cronin:

Is a

John Simon:

Smart guy, real smart guy. And I said, you’re pissing your life away. Forget about this case. You can lose the case. Win the case. You need to start getting your life together. So from the time we started representing him until the time of his depel was about a year, we helped him go get his GED enrolled him at a community college, and he

Tim Cronin:

Was on his way to becoming a professional musician.

John Simon:

And so he shows up and it was a different person. He was smart, articulate, wore a suit and tie. And matter of fact, in the accident, he lost his leg in the accident. He lost his leg, he lost one of his legs, and his deal was, my life is over. I’m kind of screwed. This is terrible. He was very angry and rightfully, but he got done. His grades in high school were terrible. And he had a four oh in a semester or two semesters of college, the college trial. And we didn’t do all of this for the deposition. We did it because his life was heading in the wrong direction. He needed to get, we both understood. He was real smart, real talented. And so at the deposition, he just blew everybody away. I mean, the attorneys who were questioning him were like, holy, because they saw somebody on paper with his school records and all of this stuff, and then they saw who showed up. But it completely changed the whole case around just because of the impression. Your client is exhibit one. You heard me say this before, Eric and Tim, you let me pick my client. I’ll let you pick the facts

Erich Vieth:

And your example. Sometimes you hear the phrase attorney and counselor law. It’s like, here you had the counseling was free here a free add-on. A lot of what we do is psychology and listening and encouraging and helping them to become the best version of themselves at that deposition table.

John Simon:

And think about that. What a great, what you should do. Rule number five, being rude, impolite or unprofessional, help your client, be polite and be respectful and be, it’s a good rule for life, a good rule for life, right? It’s a good rule for life. I think that’s the most important rule because the lawyer is going to come back with an impression and face it, they know the facts of the accident or the incident or the surgery. They’re not looking to get that from your client. Primarily. They’re coming in to get a look at your client to see their impression. They want to see who their client is and see how your client is going to present in front of a jury.

Tim Cronin:

And we’re doing the same thing for the other side.

John Simon:

Exactly. And so there’s nothing more important. That’s why too, you can’t just do that in a 30 minute session and say, okay, here are these rules and run through ’em because that’s not going to work. I mean, you got to spend time with ’em, go over these things and practice, practice with the questions.

Tim Cronin:

And then it’s incumbent upon us to pay really close attention. Hopefully we know our client well enough by then that you need to pick up on cues that your client might be getting aggravated, frustrated, tired to take a break so they can reset. Like you said earlier, Eric.

Erich Vieth:

Yeah, there’s, it’s probably worth telling your client, and it is a delicate balance that they need to be paranoid. A little bit about sitting in here. Don’t be just free and easy and all these rules require some thought.

John Simon:

It’s not a conversation. It

Erich Vieth:

Not a conversation. Well, I was going to say, not like being at Thanksgiving with your family. It depends on what your family’s like, but you have to maybe some of my Thanksgivings are pretty, their job is to see if they can make you stumble and get twisted up and conflict with yourself. And so you need to know, and like we’ve said a couple of times already, your client might need to burn a lot of energy to make sure they’re on focus here and make sure that they’re being polite even when they feel frustrated, because sometimes somebody can get under your skin. One of my favorite examples of that, you have these police officers that come in, sometimes they’re on the streets, sometimes they see a lot of stuff, and a lot of them are really gruff, but in depositions, it seems like a lot of them are very well trained. Say, yes, sir, no sir, I disagree. It’s day and night. And they have to be that way in court to let the jury know, oh, they’re human beings.

John Simon:

And all of this goes to, like you guys were saying before, making them at ease, helping them with their being nervous and try to relax a little bit. And part of it, I think you just touched on this, Eric was like some clients, some people, when they get nervous, they kind of clam up. They just quit. They shut down. And you may have a case where their testimony is just phenomenal and it might be critical to the case. And yet they’ve told you this heartbreaking story and you want to try to convey it to the other side where you actually want the client to elaborate a little bit and explain. And they’re so nervous, they’re missing the whole other side’s, missing all of it.

Erich Vieth:

Oh, especially with that. On damages, often you’re going to get the big softball question, how has this incident accident affected your life? And we will all go over that a lot. I tell ’em, and if they say three things when there’s like 18 things that they really have on their, and you know it from prepping them, they have a lot more to say than those three.

Tim Cronin:

That’s the one we try to tell ’em, keep your answers short. Listen to the question very carefully. Only answer what asked. And that one, I go until you get to that one and then drone on and on and on, and then say, that’s all I can think of at this time. But there’s so many more ways.

Erich Vieth:

I don’t know how you think about this. I’ve done this occasionally with a witness. I’m worried about that. They might get nervous and forget. There’s some topics that are going to come up. And I sometimes have my client in prep take a piece of paper and go over it with me and write down the things they want to talk about, about how this has affected their life and what’s the worst thing that can happen if they bring this piece of paper in. And I’ve had this happen where the attorney goes, oh, what do you got there? Oh, these are some of my notes I wanted to remember to tell you about these things

Tim Cronin:

I’ve done that. It’s not bad.

Erich Vieth:

And I don’t think there’s any downside to it. And it really is a way to relax them too. They’ll say, oh, I’m going to walk through all these 18 things now,

John Simon:

Or give them an assignment like what? Go home after your prep session. And I want you to make ABA Journal or some notes and I’m not even going to look at ’em.

Tim Cronin:

And that’s all part of our last bullet point is preparation like homework

Erich Vieth:

That

Tim Cronin:

We’re going to talk about

Erich Vieth:

That will end part one of preparing your client for a deposition. This has been another episode of The Jury is Out. I’m Eric Fief. I’m Tim Cronin.

John Simon:

I’m John Simon.

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