GPSOLO January/February 2008
Preparing Clients for Litigation
Whenever your client is going to participate in a significant part of litigation, such as a deposition, mediation, or trial, proper preparation is important. Your client needs to know what to expect, how to behave, and what the objective is. Advance preparation will leave your client more satisfied with the experience and make it more likely that you achieve the goals you set for that phase of the process.
Failure to explain the goals and how to achieve them can be devastating. I still recall a painful experience early in my career when I called a doctor to testify as a friendly witness at trial. This doctor had testified in hundreds of depositions, so I did not think he needed much preparation. Unfortunately, he treated my questions to him at trial the same way he had learned to handle questions in depositions—he volunteered absolutely no information. I was restricted to nonleading questions, and I was unable to get him to elaborate on many of his answers. Although I elicited the essential information from him, there were details that I wanted the jury to hear that I could not pry from his lips. When I explained my frustration to him later, he told me that no one had ever explained to him the difference between trial testimony and deposition testimony.
My experience with the doctor taught me an important lesson, and now I never go into trial without explaining to my client (as well as any witnesses) the difference between a deposition and a trial.
Preparing Your Client for a Deposition
A deposition is an unnerving experience even for witnesses with no stake in the outcome. It’s a particularly stressful time for a client. Part of your preparation should be designed to reduce your client’s stress. I find that if I spend the first part of my preparatory session with the client addressing the stress factor, it makes the rest of the preparation more productive.
There are several steps I take to reduce the client’s stress level. To begin with, I explain how the deposition will be conducted. (Be sure to tell your client if it is going to be videotaped.) Then I explain that many witnesses feel intimidated because they feel like they are in a situation they don’t control, with rules they don’t understand. Then I tell clients how to take some control of the deposition:
1. Take breaks whenever you feel yourself getting tired, irritated, or distracted. If you find yourself thinking about the answer to a prior question, it is definitely time to take a break.
2. Repeat every single question over to yourself before answering it. This slows down the pace of the questioning, which helps you concentrate on the question that was actually asked, rather than the question you thought you heard because you were anticipating a similar question. I like to point out (because it helps to relax the client) that performing this exercise also often has the unintended result of irritating lawyers who tend to be contentious; however, I’m quick to explain that this is not the purpose of the exercise.
3. Force opposing counsel to ask good questions by answering exactly the question asked. If counsel asks, “Do you know where the file is kept?” the answer is, “Yes.” (Or perhaps “No.”) The answer is not, “Yes, in the filing cabinet outside my office.” If counsel wants to know where the file is kept, there will be an appropriate follow-up question. I explain to my witnesses that our obligation at a deposition is to be truthful, not helpful. It goes against human nature to not go out of your way to be helpful, but it is critical to a good deposition. If the client answers only the question asked, opposing counsel will probably fully examine the client on the particular line of questioning anyway. But lawyers tire, or get in a rush to catch a plane, and they may not ask the follow-up question. Or they may plan to follow up later in the deposition, only to forget. Also, volunteering information may give opposing counsel new ideas for questions, and this could open the client up to areas of questioning that may or may not prove harmful but will certainly extend the length of the deposition.
4. Force opposing counsel to be precise. If a question is vague, unfair, capable of two meanings, or completely incomprehensible, insist that counsel restate the question.
The above instructions are empowering for your client and help to alleviate the fear, uncertainty, and doubt that usually precede a deposition. Depending on the client, you also may want to discuss other emotions that may arise. For example, a plaintiff reliving a tragic accident may be unprepared for the emotions that will come to the surface when having to recount the events of that day. A defendant who feels victimized by the lawsuit may feel anger. It is important that the client know to expect these emotions and know that it is acceptable to take a break and get them under control before resuming testimony.
After setting the client at ease, it is vital that you explain the objective of the deposition. Is the goal to avoid making harmful admissions or saying something that creates problems for the case? Is it to have your opponent believe that your client is going to make a good impression on the jury? Or is it to convince your opposition to settle the case? If settlement is the goal, you might want your client to break “the rule” and volunteer information in response to certain questions. Your client needs to know the goals so that he or she can respond accordingly.
It is also important to ensure that your client is aware of certain phrases in a deposition that indicate a dangerous question. For example, if opposing counsel begins a sentence with, “would it be fair to say” or “would you agree with me that,” your client should be very wary. This usually indicates that counsel is trying to get an admission from the witness. I instruct my clients to look carefully for reasons that the answer to this question could be “no” before answering. I don’t want them to agree, or agree that it would “be fair,” unless, after careful contemplation, the client cannot think of any instance where they could not agree.
Similarly, I warn my clients about making sweeping absolute statements such as “we would never do that” or “we always do that.” I guarantee that if a client answers that way, opposing counsel will have an example at trial that proves the opposite. I encourage my clients to say instead, “it would be very unusual for us not to do that, and I can’t think of any occasions where we haven’t done that” unless the client is absolutely, 100 percent certain that it has never been done differently in all of living history.
I explain to my clients that the answer “I don’t know” is very different from “I don’t remember.” Often witnesses will use the two phrases interchangeably. But “I don’t remember” allows for the possibility that the client’s memory might be refreshed, whereas “I don’t know” implies that the client never knew the answer and thus the memory cannot be refreshed. If the client once knew the answer to the question, the better answer is, “I don’t recall.”
Objections are a mystery to clients, especially if you are in a jurisdiction where you are limited to stating, “Objection to form.” Explain to the client that the objections are usually technicalities that will be ruled on by the judge at a later date and that the witness should still answer the question unless specifically instructed not to. A discussion about objections gives me an opportunity to explain another advantage gained when the client first silently repeats the question before answering: It gives me an opportunity to make the objection before the answer is given.
I warn clients that at the conclusion of the deposition, they will likely feel that their case is awful. I explain that this is a natural result because the other side is often trying to use the deposition to hit all of the weak spots in the client’s case. I use this explanation as an opportunity to further teach the client about the deposition procedure: I probably will ask no questions in the deposition because I can get information from my client any time I need it, and if I ask questions, it gives the other side a chance to ask follow-up questions. This is one of the reasons the deposition may seem one-sided.
I usually conclude the preparation session with the admonition that above all else, the client must tell the truth. I reinforce this by stating that no case is perfect, but it is much easier to rehabilitate a case with bad facts than it is to rehabilitate a case when the party lied under oath. My discussion about telling the truth leads into a comment about the likelihood that opposing counsel will ask if the client met with anyone to prepare for the deposition. I explain that because the client met with me, the answer to this is “Yes.” It amazes me that some witnesses believe that the attorney-client privilege acts like some sort of cloaking device allowing them to deny the existence of any meeting involving counsel. I clarify that no such cloaking device exists and that the client must acknowledge the meeting but should not testify about the substance of the meeting.
Preparing Your Client for Mediation
Mediation is generally a mystery to clients because it is rarely portrayed in the television shows that depict the legal world. Consequently, as a mediation approaches, clients may develop unrealistic expectations about the process that can impede progress in the mediation. For example, clients may develop unrealistic ideas about what can be achieved in mediation, or they may decide that it is a pointless exercise and approach it with closed minds. Sometimes a spouse or partner may put ideas in place that are difficult to overcome. To avoid these problems, you should meet with your client a few days before the mediation to discuss the process and establish reasonable expectations. This meeting also will help you discover if someone else needs to be present (or at least available) to assist your client in making a final decision at the mediation. For example, sometimes a spouse is the decision maker in the family, and the client will be reluctant to approve a settlement without the spouse’s approval. In that situation, you may want the spouse to participate in the mediation.
Just as in a deposition, you and your client need to share the same goal for the mediation. In some mediations you may know that whatever offer is left on the table at the end of the mediation will be improved on within a few days of the mediation. In such a case, your goal may not be to settle at the mediation—it may be to get close. Your clients need to share this goal—otherwise, they may not be prepared to walk away from a deal that is on the table. Indeed, because the client is the one who ultimately must decide on settlement, it is important that you understand the client’s goal and perhaps alter your plan so that you achieve it. Perhaps the client wants to settle at all costs and doesn’t want to risk leaving an offer on the table in the hopes that there will be a better deal the next day. In such a situation, you should alter your expectations and plan your mediation strategy to get the best possible deal at the end of the day.
Tell the client how you expect the mediation to proceed. What is the appropriate attire? Will each side give an opening statement? Will the client be asked to speak? Do you want the client to say something? You will have evaluated your client by this point and know whether the client is the type of person who is able to “stay on message” and speak or whether it would be better for the client to remain silent. Explain whether you think the client should speak and, if so, what you want the client to say. If you don’t want the client to speak, you should explain that the mediator may ask the client to add something and, if so, that the client should simply defer to your statement.
One reason that mediation succeeds is that it can have a cathartic effect on the participants. In the appropriate case, you should warn your client to be prepared to confront a variety of emotions. Likewise, the opposing party may express emotions toward your client that are essential for the mediation’s success, but which your client may not appreciate. Instruct your client to let the other side vent its emotions without immediately reacting to them and explain why it may be important for the opponent to express the emotions. Let your client know that if you feel it necessary, you will respond to those emotions when it is your turn to speak, and that you may express empathy for the other side because it is part of your strategy to advance the mediation to a successful conclusion.
Your client needs to understand the mediator’s role. A mediator can be an ally, but your client should assume that at the end of the day, the only thing the mediator really cares about is that the case settles, without regard to whether one side did better than the other. I instruct my clients not to give any hint to the mediator that they want to settle (other than generic statements such as, “we are always willing to discuss settlement”) or what their target for settlement is. I have found that mediators develop a sense for where each party will settle and then work to get the case settled based on that intuition, even if it is wrong. So if the mediator asks my client, “If I could get you X dollars, would you be satisfied?” I tell my clients to simply say, “Let me discuss that with my attorney in private.” I don’t want my client to give the mediator a hint as to whether or not that number is acceptable. After I have discussed the question privately with my client, I will usually give the response to the mediator in a manner designed to convey the number that we are shooting for in settlement, which is not necessarily the number the mediator thinks the case will settle for. For similar reasons, I coach my clients to avoid body language that might send a subconscious message to the mediator.
If you have laid the right groundwork, your client will leave the mediation feeling that the process had a chance to work, even if you did not achieve the goal that you set in the initial meeting.
Preparing Your Client for Trial
Your client’s been deposed, the case did not settle in mediation, so now you must prepare your client for trial. Much of the advice that applies to depositions and mediation applies to trial preparation—but there are a few things you need to teach your client about trial.
If your client is the nervous type, get a sneak peek at the courtroom. Call chambers, get permission to enter the courtroom when it is empty, and let the client sit in the witness stand and visualize where the judge and jury will be sitting. This makes the actual experience less intimidating. This also presents a good opportunity for your client to practice speaking to the jury when testifying. I prefer that my client look at the questioner while the question is asked and then turn and answer the question as if it had been asked by a member of the jury. This is not something that comes naturally, so sitting in the witness box and practicing it is helpful.
While explaining the layout of the courtroom, show your client how the jury will be able to see what is happening at counsel table. Jurors can see the client’s reactions to testimony or see whether the client is taking the case seriously. Inform clients that they also will be under scrutiny when approaching the courthouse before the proceedings and when leaving it afterward. A member of the jury may see your client pull up to the courthouse in a Ferrari and question the client’s claim of economic hardship. Take a moment also to address the proper attire for the courtroom. This will vary depending on the type of case and the manner in which you want your client to appear. The discussion should include the client’s use of jewelry—what is appropriate for your case?
As with a deposition or mediation, the goal is important. Of course, the goal of trial is usually to win (although it might be to limit damages), but what is the goal of the client’s testimony as a witness? You see the big picture and know what evidence will be used to support each element of your claim or defense, and often only some of that evidence will come from your client. Your client doesn’t see this picture. You should identify the evidence that must come from your client and explain that this is all that is needed. Sometimes clients think they have to hit “the home run” and make the whole case. If all you need from the client is a couple of singles so that your expert witness can clear the bases, make sure the client understands this.
As discussed at the beginning of this article, make sure your client understands the difference between deposition testimony and trial testimony. You want the client to volunteer information at trial (within reason, of course). On a related note, let your client know the theme you will use throughout the trial and the buzzwords that should be used during testimony to reinforce that theme. For example, if you argue that a particular piece of correspondence created a contract, you may want the client to refer to the letter as “the contract” instead of “the letter.”
Clients (along with most witnesses) dread cross-examination. Do your best to prepare your client for cross-examination. Anticipate the questions that will be asked and put your client through a mock cross-examination. Let your client know what leading questions feel like and how to deal with them. If you’ve done your job, the actual cross-examination will seem much easier than the preparation.
Prepare your client to be called to testify in the opponent’s case. It is unnerving for a client to have this happen unexpectedly, and the last thing you want is a nervous client testifying on the stand. If your client expects to be called, however, it will not be nearly as unnerving.
Perhaps the most difficult part of a trial for a client is taking the verdict. Let your client know what to expect when the jury comes back and how to react when the verdict is read. While any reaction at this point cannot change the verdict, it may be reported in the media. Moreover, the judge who will be considering any post-trial motions will be observing, and the wrong reaction in the wrong kind of case could be fatal. If the critical witness’s testimony was that your client had a nasty temper and you want to argue in a post-trial motion that this witness was not credible, it will not help your argument if your client lets that temper loose when the verdict is returned.
Proper care and feeding of a client in litigation requires extensive preparation. Feed your client, lest you feed your client to the bears.
Deposition Dos and Don’ts
- Always tell the truth.
- Use the fewest words possible (e.g., “yes,” “no,” “I don’t know,” or “I don’t remember”).
- Choose your words carefully.
- Do not think aloud.
- Do not begin an answer, “well, to be honest with you. . . .” (Does this mean the other answers weren’t honest?)
- Don’t guess or speculate. If you are not sure, say so. If the other attorney asks you to guess, make it clear that you are guessing.
- Do not engage in casual conversation with the court reporter or anyone else. I have gained valuable insights from conversations that witnesses began when we were off the record.
- When you say you know something, be sure to indicate how you know it: Someone told you; you assume it; you infer it; you have independent knowledge.
- Do not volunteer information.
- Do not explain your answer. If opposing counsel wants an explanation, there will be a follow-up question.
- Listen carefully to the question and repeat the question silently before answering.
- If you don’t understand the question, ask for clarification.
- Answer only the precise question asked.
- If asked whether there is anything else, do not say, “I don’t know anything else”; say “I don’t recall anything else.”
- If asked about a document, ask to see the document. If opposing counsel will not show you the document, explain that you don’t feel that you can give a full answer without seeing it.
- Review each page of the document carefully.
- Do not assume that the document is accurate.
- If you do not have your own memory of what the document says, be sure you say so when you answer questions about the document.
- Do not promise anything to anyone. If opposing counsel asks if you will provide information or a document later, simply state that counsel should deal with your attorney on that issue.
- If you realize that you made a mistake during the deposition, go back and fix it right away.
- Never lose your temper.
- If you find yourself getting emotional, take a break. Emotions prevent you from concentrating on the questions that are asked.
- Dress appropriately.
Andrew C. Simpson runs a trial and appellate small practice in St. Croix, U.S. Virgin Islands. He is a frequent contributor to GPSOLO and may be reached at email@example.com.