Can all clients be prepped for testimony? Yes. But not all clients will follow through. Some clients try to apply their learnings but fail. Others consciously choose to veer from the path for various personal reasons. In this article, we’ll explore the latter scenario and how to spot client red flags that can have extreme detriment to the case.
The deposition preparation process is designed to engage the client in the litigation process. The deposition is one of the only times clients have the opportunity to speak for themselves and on their own behalf. Thus, effective preparation must cover education, process and practice, as well as set expectations. This process usually takes hours in its entirety.
During these hours, lawyers are solely focused on absorbing information from the client, such as background, family, work, and hobbies, which strengthens the lawyer/client bond. The client also learns their role in their own case and is empowered to step into that job.
However, in rare situations the preparation time reveals client red flags. When you spend hours with a person you see how they function/think/believe/perceive the world.
Types of client red flags during deposition preparation:
- Tells stories inconsistently.
- Repeats phrases when asked about damages and refuses to elaborate.
- Fails to follow directions.
- Blames others, such as doctors, lawyers, spouses, for problems.
- Treats staff in the law office differently than lawyers.
- Refuses to respond to questions.
- Can’t / won’t give facts, liability, or damage.
- Blames “life” and other things as excuse for not giving attention to prep or homework.
- Can’t give answer as to motivation.
What can red flags represent?
- Lack of interest in the case (no desire to pursue).
- Lack of trust in lawyer.
- Lack of confidence in case.
- Lies or half-truths.
Not all red flags are fatal. Some can be resolved by further educating the client, building up trust, and taking additional time to dig deeper. So, how can you figure out if the red flags are incurable or manageable?
Three-step process to address client red flags
Step 1: Speak with the client on two different levels. The first level is just being curious and asking more questions. After getting responses, take a soft approach when pointing out the red flag. If this doesn’t work, then take a direct, straightforward approach. Point out your concern and explain how it is detrimental but workable. Then ask the client open-ended questions and listen without voicing objections.
Step 2: Role play with the client, with you acting as opposing counsel. After gathering all the responses from the client in Step 1, develop questions geared directly to the red flag. Use the role play to expose the weakness.
Step 3: Analyze the situation privately. Take all the information available and ask yourself, “How would a juror view this?” Does the case have other information or a witness who can work around the red flag? Or is the red flag fatal and the case needs to be settled?
Recently, I was faced with a red flag when preparing a client for trial. Let’s call her Suzy for purposes of confidentiality. Suzy’s case had been going on for six years but was finally approaching trial. She had finished treatment four years prior and hadn’t seen a medical provider for her case related injury. Additionally, Suzy had settled with one of the defendants and had trial against the remaining defendant. During our preparation sessions Suzy was not motivated to answer questions about the past six years and how the injuries impacted her life. She repeated the same phrases about the injuries being painful but couldn’t elaborate on how pain limited her life. Suzy talked with me openly, but clammed up when her lawyer came into the room.
I started with Step 1 on the first day of the preparation, using both the soft and hard approach, gathering everything I could. I sent Suzy home with homework. The next day, she showed up late and hadn’t done any of her homework. We then engaged in a role play exercise, with me acting as the opposing counsel. At one point, Suzy gave up. She physically removed herself from the table and started blaming me for not preparing her. Her outburst pretty much solidified my hunch, which I then confirmed through private analysis of the red flags; possible lies, complete disinterest in the case, and lack of trust in her lawyer. A jury would spot all three in a heartbeat. For certainty and clarity, the lawyer confirmed the red flags with a focus group before finally deciding to settle.
If your client is throwing up red flags, don’t wait to address them. This three-step process can be performed at any phase of a case. The earlier you spot the problem, the better chance you have to solve it.
Are you struggling with a red flag? Set up a free witness preparation strategy call with me and together we’ll figure out how to handle it.