Preparing the Client (and other Witnesses) for Testifying at Deposition (or Trial)<\/b><\/p>\n
When a client retains an attorney, the client gains the voice of his attorney, but seems to lose his own voice.\u00a0 Virtually every statement the client might make is filtered through or guided by counsel.\u00a0 There are only two times that the client fully regains his voice and will speak alone, without a filter.\u00a0 At deposition and a trial<\/a>, the client speaks out.\u00a0<\/span><\/p>\n The importance of a client\u2019s voice and words are not lost on any of us who serve our clients.\u00a0 We don\u2019t want our clients to be without power.\u00a0 We want them to be powerful.\u00a0 But most people are not trained or disciplined in the art and skill of speaking.\u00a0 The greatest fear people have is public speaking.\u00a0 Put the two things together, no training and speaking in a \u201cpressure\u201d and public setting, and there is the potential for disaster for a client and the case.<\/span><\/p>\n Whether or not we are afraid of what our clients say, we do have some way of helping the client be effective.\u00a0 When I first considered what it took to get a client prepared to testify, and setting out a pattern to replicate into the future, I was drawn back to every status letter or memorandum I had ever drafted about a deposition I attended.\u00a0\u00a0<\/span><\/p>\n After the introduction, my first substantive paragraph evaluated the effectiveness of the witness.\u00a0 That paragraph concluded with an opinion about how the witness would appear to a jury.\u00a0 It was important for me to measure what the witness said, and then, how she said it.\u00a0 That was my comment on the skill\/discipline of the witness.\u00a0 This was about <\/span>how<\/span><\/i> the witness spoke.<\/span><\/p>\n Thereafter, my letter set out the substance of the testimony.\u00a0 What were the facts as stated by the witness. This was about <\/span>what<\/span><\/i> the witness said.\u00a0\u00a0\u00a0<\/span><\/p>\n It comes down to those two things. What did the client say? How well did the client conduct herself?\u00a0\u00a0<\/span><\/p>\n While the testimony on the factual issues are important, you can prove facts in other ways, such as through the testimony of other witnesses, pictures or audio or video evidence, documents (such as medical records), and so on.\u00a0 But how the client appears, and presents himself can only come from the client.\u00a0 Where they disciplined?\u00a0 Could you control your client?\u00a0 Was the person emotional, hesitant, angry, or out of control?l Sometimes, though we do not like to admit it, the appearance and look of a witness can influence perceptions about their credibility or accuracy.\u00a0\u00a0<\/span><\/p>\n Then there are other considerations.\u00a0 Could opposing counsel ask questions that would jolt the client out of his preparations and appearance of self-control?\u00a0 Could the case and its value and be adversely affected if the witness did not present well?\u00a0\u00a0<\/span><\/p>\n Research helped me locate some resources.\u00a0 I synthesized the best of the information and put it into a single page, and kept it very simple.\u00a0 The result of my research and training yielded the \u201cBlue Sheet.\u201d\u00a0 (Credit goes to a friend and fellow consumer attorney, William L. Berg, of Berg Injury Lawyers, for his significant contribution and originating some of the ideas.)\u00a0 See below.<\/span><\/p>\n Now, I spend more time preparing clients to be disciplined witnesses.\u00a0 The stress for witnesses cannot be underestimated.\u00a0 As attorneys, we typically feel we are not vulnerable to the stress of a deposition, but for our clients, it is entirely different. For most of my clients, the thought of being in a lawsuit gives them shivers and stress. A deposition, or trial<\/a> testimony, is a huge step up in stress and drama.\u00a0\u00a0<\/span><\/p>\n Added to the stress of litigation are the great emotional commitment the client typically has to tell his or her story and the motivation to persuade the other side of the justness of the cause.\u00a0 The client typically wants to talk, and talk more.\u00a0 And to try to be their own advocate.\u00a0 That is all understandable, but without a firm hand training and preparing them, the results can be disastrous. Clients can be expected to say too much, volunteer, interpret what the other attorney does not understand (if they understood, the attorneys would have offered more money), or worst of all, overstate the impact of a collision, the pain endured, the damages suffered. And memories often fade, so clients tend to fill in the blanks and they then overstate or reform facts, because they perceive that will help the cause.\u00a0 But it is like taking a dance class on a minefield.\u00a0<\/span><\/p>\n It is difficult enough fighting with insurance companies and their attorneys before a deposition.\u00a0 Later, if the deposition testimony went poorly, our task is that much tougher.\u00a0\u00a0<\/span><\/p>\n For straightforward injury cases, especially when there is no legitimate dispute about liability, the client\u2019s comments about the event are rarely the pivot point to success.\u00a0 In the same way, sometimes the testimony about treatment can have some holes, as memory of the length of therapy or the particulars of complaints of pain get blurred over time.\u00a0 You can rely on the medical records.\u00a0 But if your client will offer unsolicited answers and information, or overstate the trauma, your case can be undermined, perhaps even irretrievably harmed\u2013by the person who should be the best selling point of the case.<\/span><\/p>\n Put into the web of a skilled defense attorney, a plaintiff can be lead along to disaster.\u00a0\u00a0<\/span><\/p>\n Therefore, we must neither undervalue the importance of preparing our clients nor fail to take the time to prepare them.\u00a0\u00a0<\/span><\/p>\n When I first met with prospective clients, I am imagining the conclusion\u2013how would my case and this party witness present to a jury.\u00a0 What was good, bad or somewhere in the middle?\u00a0 With that end result in mind, either winning at trial<\/a>, or prevailing after skilled negotiations, we must get our clients ready for testimony.\u00a0 Too much is at stake for us to drop the ball.\u00a0\u00a0<\/span><\/p>\n I mentioned the Blue Sheet (the color of the paper is blue).\u00a0 It is called the Five Keys, but it is printed on blue paper.\u00a0 These are the simple ideas I use as a starting point for clients, to emphasize how they testify. The ideas work for any witness. <\/span><\/p>\n<\/span>THE FIVE KEYS<\/strong><\/span><\/h2>