EP 617- Ten Pitfalls In Client Prep Part Two

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:

And we’re here to talk about part two of preparing your client for deposition.

Tim Cronin:

So number five was not being rude or impolite. Number six is close, but it’s different, which is becoming angrier defensive. You don’t want to become angry or defensive even, and especially if the opposing attorney’s trying to provoke you. So on top of creating a negative impression, it lets the lawyer know they can get under your skin at trial if desired. And when we get mad, we tend to lose control. You can say something you don’t mean. You can reveal more information than necessary. You make regrettable statements, you appear less credible. And just generally speaking, if you’re getting mad, you’re not thinking carefully about what the best thing to say is.

Erich Vieth:

I’m laughing because I’ve had a couple witnesses who were really savvy, good people, and the attorney’s getting huffy and puffy and getting more and more angry. And then my witness unprovoked by me will ask the attorney, are you okay? It looks like you’re a little upset over there. It is just like one of the funniest things.

Tim Cronin:

Nothing makes somebody more angry. If you want somebody who’s mad to get more mad, ask if they’re okay or tell ’em to calm down. So it’s the same kind of advice as the, I remind them, remain calm and professional. Even if they’re trying to provoke you. You can stand your ground. Don’t let the lawyer put words in your mouth, but you can do it respectfully. And if we notice your client’s starting to get mad, you better call for a break. And I tell ’em, if I ask you if you need to take a break, it means you need to take a freaking break.

John Simon:

Well, and the other thing too, when you can sort of anticipate a little bit, there’s certain things in your client’s past, maybe some facts that they’re going to be defensive about, right? If they got arrested, who knows? I mean, there’s been all kinds of stuff that I’ve seen through the years. Some things

Tim Cronin:

Got lost

John Simon:

Custody of their kids and they getting asked about, so things are really bad. Some things are really, really bad in their past. And guess what? They’re not going away. They’re going to be asked about it. You lie about it, it’s coming in. And so the question is, do you want to spend 30 seconds on that issue or you want to spend 15 minutes on it? Because if you start becoming defensive about

Tim Cronin:

It,

John Simon:

It’s going to blow up and it’s going to be 20 minutes of video about you talking about your DUI arrest.

Tim Cronin:

And then if you lie about it, it’s coming in for credibility and then they know it’s something if they bring up in front of the jury, you’re going to explode and you’re just doing ’em a favor. Number seven is using absolute statements. And John, I remember the very first plaintiff that you, right after I started here, you and I prepped together. I remember you explicitly saying this to them over and over again. I got the impression that had happened to you several times.

John Simon:

Yes, it had

Tim Cronin:

Avoid using words like always or never or agreeing. That’s all. When they ask, is that it? That’s the whole list of things. Absolute phrases are almost never true. I just broke my own rule. They can be easily disproven. It damages credibility. You’re just setting yourself up, right?

Erich Vieth:

It’s very carefully vetted in preparation where it’s a key issue of the case where your client said, I never went there. Let’s say it’s really critical to the case that that person never went to a particular area in the factory and they’ve gone over it over and over and over. And at that point they should say it and mean it. That would be okay. But

Tim Cronin:

You better be real careful though.

Erich Vieth:

That’s right. That’s right. You got to really be careful to know that you really never want, you’re going to be stuck with that answer. But at that point, if this person up and down knows I, I’ve never done that at the factory or I’ve never been there, and then they hedge at the deposition, not to my knowledge, there’s a balance act there.

Tim Cronin:

But if somebody asks you, do you ever, ever gone to the doctor for a sore back? And you say Never. I immediately put my head in I Are you ever treated

John Simon:

For a right commun fracture above two centimeters and they’re reading from your medical records? It’s the old saying that never actually in a conversation, never means never. Yeah. In a conversation never means that. Probably not in a testimony in court in the deposition, guess what? Never means never. That’s what it means. It means never you never did. It never happened. I had one client, wonderful, wonderful guy, terrible accident, hurt his back, multiple surgeries. He was a laborer. And all of the doctors he went to, all the doctors said he’s, you can’t work anymore. He cannot. He didn’t have, I didn’t even think he finished high school, not a high level of education. And he was in a fair market. He was unemployable. And so he had to walk with a cane. He was a young guy. And so there was no dispute. I mean there was nobody in the case saying that he wasn’t disabled and he couldn’t work.

And so what happened is between the time that we first came into our office and the time of his deposition showed up in a wheelchair and none of the doctors said he needed to be in a wheelchair. And so I went in a room with him and of course this wasn’t the day before the deposition. And I said, what about this wheelchair? And he didn’t say, well, it helps. And he said, I can’t get along with it. I just need this wheelchair. And I said, well, I’ve got a problem with that because did a doctor, he went out and got it on his own and the guy was injured, he was disabled. And I said, well, let me ask you this. If I take your wheelchair away from you and there’s a fire in my office, office here can get out, can you get to get down? And he looked at me like I was nuts. And I said, you’d get out of the building, wouldn’t you without the wheelchair? So I said, it helps you but you don’t need it. But it helps you, right? You use it, but it’s not absolutely necessary. And again, to soften it a little bit, because I knew they were going to shove it in his ear at trial,

Tim Cronin:

Do you always use the wheelchair? Yeah. How about this videotape of you walking to your mailbox taken yesterday

John Simon:

Morning? Yeah, right. Or the same with a cane or a walker or anything like that. You got to tell your client, do you use that all the time? If you don’t, then the answer’s no. Not all the

Tim Cronin:

Time. Yeah, sometimes it helps. Usually not all the time.

John Simon:

It’s setting traps. It’s being aware that when they ask these absolute questions, we’re requesting absolute answers. It’s nine times out of 10 they’re trying to trick or set a trap for you.

Erich Vieth:

I’m just being stubborn here. And I’m going to say, have you ever committed murder? And your client should say something other than not. To the best of

John Simon:

My knowledge,

Tim Cronin:

Yeah, the answer’s no.

John Simon:

Yep. Is your name John? I hope

Tim Cronin:

They don’t go plead the fifth. I believe so, yeah. Have you ever gone by another name under oath?

John Simon:

Have you ever committed perjury in a deposition? I don’t think so. Yeah. How about

Tim Cronin:

This one?

John Simon:

It’s tricky, you know? That’s why you got to spend time. This is not something you dabble in. It’s not a sponge bath. You got to fully immerse yourself in your client’s preparation. You have to know who your client is. You got to know everything there is to know about your client’s background.

Tim Cronin:

And the longer and more experienced, your lawyer that you’ve been a lawyer doesn’t shorten the amount of time you need to spend prepping your client. It is the same amount no matter if you’ve been a lawyer for 40 years or for two

John Simon:

No shortcuts.

Tim Cronin:

So number eight is exaggerating. And that’s similar to using absolute statements, but you don’t want to understate or overstate things, exaggerating or overstating symptoms. Your client should not exaggerate or overstate their symptoms just like they shouldn’t understate them. In my opinion, if you are overstating your symptoms to a jury, it’s the same as you aren’t injured. That’s how they’ll Oh, oh, you’re going to say you’re more hurt than you really are. You’re basically not hurt. And it’s the same thing. You don’t want to exaggerate liability, facts, loss of income or anything else. It’s not truthful. The other side will easily show it at trial. You lose credibility, you harm the case. Jury doesn’t want to help you. So very simple, don’t exaggerate, be completely honest, easy to remember the truth

Erich Vieth:

And stand your ground

Tim Cronin:

After

Erich Vieth:

A long prep. The defense attorney’s going to come in. Isn’t it possible that it’s not quite this way? So don’t exaggerate, but don’t, don’t cave.

John Simon:

Yeah, don’t overstate, don’t understate. It’s all about credibility. You lose your credibility, it’s over. That’s all you have to offer. The jury is your credibility. And if you don’t have that, it’s done.

Tim Cronin:

Number nine helps you avoid making the mistake of any of the other ones we’ve talked about. Don’t answer too quickly. Avoid rushing to answer questions. It can lead to mistakes, inconsistencies, leaving things out, saying things. You don’t mean answers based on emotion or anger rather than careful thoughts. So listen carefully to the questions. And then I try to prep my client to take a beat at least a second or two, sometimes longer. Some questions are really hard to answer. Take your time. We can cut out the dead space from the depo. So take as much time as you need to gather your thoughts.

Erich Vieth:

I tell my clients that you might be tempted to quickly answer because some attorneys ask quick questions and it seems like they’re setting the cadence.

Tim Cronin:

We’re trying to get witnesses in a rhythm, right?

Erich Vieth:

Right. And if you get ’em, it’s almost hypnotic where some attorneys are really good at this and it’s just like a back and forth and it’s like, no,

Tim Cronin:

We’re trying to turn doctors into yes witnesses. They’re trying to do the same for our client,

Erich Vieth:

Right? So I tell them, you set the pace, they can be fast, you can be slow still, it doesn’t matter.

Tim Cronin:

And then number 10 is generally failing to prepare adequately. And this covers lots of things we’ve talked about. Don’t ever go into a deposition unprepared, especially on the key issues in dispute. Those you think you’re most likely to be focused on. A lot of this falls on us, but you don’t want your client to be caught off guard. If they’re unprepared, they’re going to be more nervous. A variety of different kind of mistakes can happen. The more prepared they feel, the more comfortable they’ll be, the less likely to misstate something. So go over everything with them.

Erich Vieth:

Let’s put some metric on this. So let’s say Tim, you have a big case, you have one plaintiff and the trial is coming or the depositions coming up in two months, how many times will you ideally meet with your client and how much time might you spend with that client?

Tim Cronin:

Yeah, I mean it’ll depend on the vulnerability, age, sophistication of the client. But John and I had a case recently with a teenage female client who’d been through something very, very traumatic and talking about anything was going to be difficult. And we had three to four zoom prep sessions of an hour each. She wasn’t close to our office and then also brought her in two days before the depot and spent a few hours each of those two days before the depot and the earlier sessions were less involved and just trying to explain the process and talk and get comfortable. And then the longer we went, the more in depth we got into the more sensitive issues. If your client is a doctor who was in an auto accident and your client’s really sophisticated and there’s not much much for them to talk about, but you might only need to have a phone call and then a couple hours the day before the depot. So there’s a big range. I think

Erich Vieth:

I’ve had some cases where it is a technical case where there’s a lot of paperwork and it’s a lay witness, it’s not an expert and it’s just hard to grip, get your head around everything and keep everything in there. So I’ve had a couple cases where I’ve met with one fellow I think four times, and he made an outline to help keep track of the, it was a class action where it was a class. Another case was a woman that just got nervous being around, even me. And I think I had her back six times. And she also decided we’re going to give her a cheat sheet. So she wrote it out and had it typed up. And same thing, as I said before, the attorneys would say, well, what do you got in front of you? She said, these are some notes to help me keep on track. I want to make sure I’m as accurate as I can. So when we say prepare adequately, not just how long you’re going to prepare or how many questions to ask, but there are some people that have a lot of trouble hanging onto things and getting nervous. And I think you’re right. It depends upon the person.

Tim Cronin:

I always go over the client’s interrogatory answers and request for production responses. And almost every time I figure out there’s some document or several documents that they have that through some communication error when answering it they didn’t get and then

John Simon:

Incorrect or

Tim Cronin:

Not updated and then we have time to get it before the depo or an interrogatory that needs to be updated. Make sure you do that.

John Simon:

And if you can’t update it before the deposition,

Tim Cronin:

Right, the day before or at least that morning and make sure the other site gets the documents.

Erich Vieth:

It’s also we’re saying go over the petition too. Let them see it. They’re going to be asked about paragraph 42. And what did you mean when you wrote that? Well, my lawyer wrote it. We prepare that. My lawyer wrote that based upon our

Tim Cronin:

Information. Do you do mock cross exams of your client? I do. And I try to make it more brutal than I think the other side.

John Simon:

The other thing, a good point is I have another lawyer in the office typically do that, not me.

Tim Cronin:

So that they’re not

John Simon:

Pissed to you? Well, not just that. So they’re a little more nervous, they’re not as comfortable with me with the other person, the other lawyer. And it’s so helpful. All of these rules are great to listen to. You got to practice when you see ’em in real life and it’s happening and they get two or three of these questions and know how to handle ’em and they get a little more comfortable and you stop and say, let’s see, remember this list? I do it in every case. Every case that we try, I try. I’ll have the first session is nothing about the merits of the case. It’s just to sit down about the process, visit with ’em, update ’em on what’s going on in the case. And during that point, I just want to let them know what the case is about what we’re saying, what we’re trying to prove, what the defense is trying to say in the case without going into any of the details or the facts.

And then I’ll have another session where we’ll get into the substance of the information. I’ll ask questions about those issues so they understand at the next session, well this is why John’s asking me this because the other side’s interested in this is what they’re trying to prove. This is why it’s relevant. I hear this, how many times have you guys heard this? Why in the hell is he asking me that? That’s not relevant to anything. I got hit and I broke my back. What? I had three back surgeries. Why the hell is he asking me about a job I had 15 years ago? So I do a session.

Tim Cronin:

I’ve had watched clients say it to the lawyer in the depot even though I told them not to.

John Simon:

Yeah. Oh no, I had one. Well, that’s not relevant to anything. I had one last year when, and it was like admitted liability truck accident case. And my guy had a mild traumatic brain injury. I actually, I wasn’t at the depot. Another attorney handled the depot and I was reading it and about 180 pages in, he said, what the hell am I on trial here? Am I the one that causes sex he blew up at No. And I think having somebody else question them is practice is all it is and there’s nothing better than practice. And you can also figure out what, by the earlier sessions, you know what kind of witness they are. Like for instance, if they clam up and they don’t want to elaborate on things and those are the things you can focus the practice cross exam on.

Erich Vieth:

It’s tempting to rush because we’re handling a lot of things during the day and I’ve seen some lawyers preparing witnesses who will give them a lot of rules to the do’s and the don’ts, the things we’re talking about here. But there’s no substitute for making sure that you then let them do a lot of the talking. And it takes a lot of time. Like I say, Tim, it doesn’t matter if you’re an experienced attorney or not, it takes a lot of time. It would be like me giving someone, here’s 12 lessons on how to play the guitar and I’m just going to tell you how to do it now. You can do it. It is the same thing. They have to get used to the rhythms and how to look at the questions and how to be brave enough to ask for a clarification and things like that. And there’s no substitute other than doing it, doing it

John Simon:

Repeatedly. Well the perfect example is, I bet the first depo you’ve ever taken is a little bit different than the one you’ve taken last month. Right? And so we learn how to ask questions by trial and error.

Erich Vieth:

Sure.

John Simon:

And it’s the same way with listening. You got to be a good listener. You really have to be a good listener. And that’s what they need to do. They need to listen and understand. But I think if they understand what the other side’s trying to prove and what you’re trying to prove, I think that helps a whole lot. It puts the whole process in context.

Tim Cronin:

And we mentioned this earlier as part of the prep, I’ll often give my clients homework to do. Really go home and think about how this has affected, if you have a consortium, claim your relationship every way. Make notes for me as a communication to me or try to think of people relate to things through stories. It’s one thing to be like, my back hurts all the time. And it affects how, it’s another thing to think of a specific concrete example of like, I can’t reach up to my cabinet to get the bowls down because concrete stories that people can visualize. So I’ll give homework assignments to my clients throughout the process for them to take time and think about and then come back.

Erich Vieth:

That’s a good point. Stories that have vivid language like standing up, stretching and can’t reach the thing or walking and I have to hold my hip or those kinds of things. That language is more vivid. And so I try to get the clients to think of it in terms of their everyday actions. Don’t describe, oh, it’s difficult to get along at each day. That doesn’t tell me much, but give real examples and describe them in that kind of language. And there’s studies out there that when you use more vivid language, it looks, it’s more believable because we can imagine the listener can hear that and generate images much more easily.

Tim Cronin:

So for every case, every case is different. Every type of case is different, is different. Every one of our clients is different. So you need to tailor your prep and what you need to focus on to that case. But these are our top 10 pitfalls to try to avoid. And I’ll repeat ’em one through 10, one lying, guessing or speculating. Number two, volunteering information that hasn’t been asked. Number three, avoiding inconsistency with prior statements. Number four, not asking for clarification for confusing questions. Number five, being rude, impolite, or unprofessional. Number six, becoming angry or defensive. Number seven, using absolute statements. Number eight, exaggerating. Number nine, answering too quickly. And number 10, failing to prepare adequately.

Erich Vieth:

Alright, this has been another episode of The Jury is Out. I’m Eric Vet. I’m Tim

Tim Cronin:

Cronin.

Erich Vieth:

I’m John Simon.

Announcer:

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