During the second phase of client testimony preparation, sometimes there’s a big miscommunication between the clients and the lawyers. Lawyers ask differently in deposition than they would in any other kind of conversation. Therefore, it warrants some education so clients can go through it smoothly.
In Phase 1, we talked about getting into the right mindset, which applies to clients and trial lawyers. Today, we look into Phase 2, which also refers to the organizing phase. This phase does not mean crafting, shaping, molding, or woodshedding any testimony. Resist the urge to craft and change your client’s words to make them sound better or to make their answer the question more clearly. Instead, make sure you organize what the client already has in their brain and what they already know so clients can see the bigger picture concerning the questions they get.
There is power in the truth, and it is all you are doing in this phase – to help clients see that and organize it for them.
In this episode, you will hear:
- Challenges trial lawyers have in this phase
- The 3 main purposes of a deposition
- The power of telling stories
- Why you shouldn’t be changing the client’s words
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Episode 014: Phase 1 of Client Testimony Preparation
Episode 011: Focus Groups: What Do You Get?
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Episode Transcript:
Elizabeth Larrick: [00:00:00] Welcome back. We are in a three part series going through client testimony preparation, specifically looking at depositions, and we are going to look into the phase two, meat and potatoes, the part where we really get in and start looking at questions and looking at answers and really helping our clients with testimony.
We’ve got some fun things to talk about. So stick around. Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants, ask them about connecting with clients and juries more effectively, then take strategies, tactics, and insights to increase your success? Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process.
Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries [00:01:00] and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hello and welcome. This is Elizabeth Larrick, and you’re listening to an episode of Trial Lawyer Prep.
This is a podcast designed and created for trial lawyers working with difficult cases, problematic clients, and providing some how to. to fight through some of those problems and come out the other side feeling better and having better cases and better outcomes. Today’s episode is going to focus on our second part of our three part series in client testimony preparation with an emphasis of looking at depositions in We’ll do a trial testimony preparation series a little bit later in this podcast, but today I want to continue our journey with client testimony and look at phase two, what I like to call organizing.
We’ve talked about in phase one, getting our mindset straight, [00:02:00] meaning not just the client’s mindset, but our mindset too, right? So there’s a big old fear monster running around that really can control our brains and can really cause some problems in deposition. So if you want to listen to that full episode, check out episode 14.
But today we are going to march forward with looking at organizing and let me make an emphasis on that because we are not going to be crafting, shaping, molding, or wood shedding any testimony here. Okay. What we’re really looking at is making sure we’re organizing what the client has already in their brain, right?
What do they already know? And this is really facing that issue of, lawyer questions versus client answers. And sometimes there’s just a big miscommunication here. A lot of times what I like to explain to clients is this is kind of the part where we just translate because lawyers talk in a different way.
We ask questions differently in a [00:03:00] deposition than we would in any other kind of conversation. So there’s a little bit of teaching that goes along to have the client see a book. bigger picture when it comes to some of these questions that they get, but also translating the lawyer asks this, but this is what they’re really looking for.
And a lot of people can have that communication breakdown and we want to make sure that it’s really smooth for clients when they get into the deposition. Now, one of the toughest parts of this phase is at times you’re going to have to accept Um, and it’s going to be hard not to want to craft what they’re saying or change a word here and there to make things sound better or, you know, to speak more clearly to liability or damages.
Because at the end of the day, the jury can spot a phony. We know lawyers are taking depositions, they’re asking questions, but ultimately they’re going to be judged by a jury. So we want to make sure that we keep it at that level. There’s no reason [00:04:00] to. Okay. And so this all trikes us back to kind of ultimately the purpose of a deposition and always explain this to clients in our first phase when we’re talking about mindset and expectations is there are three main purposes of a deposition and the first one is to gather information.
You know, it’s not all going to be cross exam and style, but a lot of times they just need information. So it’s not all going to be about doom and gloom. Okay. They want to learn what you’re going to say. They want to know what your story is and ultimately they’re going to want to score points for their case.
So that’s where we use our organizing phase to look at first and foremost, scoring points for their case. And this really kind of goes into that teaching moment where how are they doing that and what questions are they using to do that? And a lot of times I feel like, clients get lost in seeing ultimately what is the target of a question, [00:05:00] meaning like, what are they insinuating?
Sometimes if you’re in the battle, they can’t see what’s being insinuated and that’s the evil part of it. You don’t know. So it’s really backing up a lot of these questions and showing the big picture because clients expect to be asked the same question or try to get the same information, um, 20 different ways they expect that tricky kind of question, but they don’t really know how to handle it, right?
So this is really where we’re looking at. Okay, so we’ve got most time there’s several targets, right? There’s gonna be maybe some targets on liability. Maybe there’s gonna be some targets on damages and we’re gonna go through each of those individually and what we really want to do is Put that target up there, right?
Make it big picture. So let’s just take a car wreck example because sometimes that’s the easiest. It’s a car wreck. They’re gonna try and blame you for something, even if it’s just a regular rear end collision, right? You stopped too soon. You didn’t have your brake lights on. [00:06:00] You know, witness says this. So Even though it may seem so abundantly clear, your client’s not at fault, they may think it’s abundantly clear.
It doesn’t mean that it’s still not going to be a target for the opposing counsel to ask several questions on. And I always like to walk through that first target, somewhat of an easier target for them, because then they understand what we’re doing. So we’re going to teach them, Hey, okay, here’s this target.
Opposing counsel is going to try and say that you are Even just a little bit responsible for this rack and how are they going to do that? And so then I just list out all the questions how they’re gonna do that And then once I do my job of showing them how that question is gonna be asked what that question is going to be Then I hand it over to them and we just go through what are the facts that you have Right.
And let’s just write out the facts. And in this phase, we’re really making sure that we’re organizing truth and facts, avoiding [00:07:00] feelings, because at times people get wrapped up in stuff and emotionally it’s tough and you want to have answers and sometimes you just create answers in your mind. Let me give you an example that happens often or frequently.
The other person was speeding. I know it. How do you know? I just know they were speeding. Okay. The other person was on their phone. Okay. Did you see it? No, I didn’t see it. Did they tell you that? No, they didn’t tell me that. So wait, how do you know? I just know they were distracted. Okay. And that’s really important because if we let them go into the deposition with that response.
Okay. I know they were speeding, even though there’s really no way for anybody driving on the road to, you know, you’ll just see that if it comes from behind them, it opens them up for a litany of extra questions and it’s just a position that they can’t support. They don’t have the facts to support it, even though that’s the way they feel, that’s not really a fact.
And so we really want to be able to [00:08:00] organize it in that way so that when they get in there, they can see, wow, I have, Let’s say they have just four facts, but they’re four really strong facts. Those four strong facts can beat back one target, even if it comes at them 20 different ways. Truth doesn’t change.
And that’s what we really want to organize from and show them, Hey, how strong is this fact? Do I need this other feeling of, I feel like they were speeding. I feel like they were on their phone. I don’t. I got this other strong stuff. It’s way stronger. Great. And you keep doing that organization with them through the different targets.
I always go through liability. I go through damages. Even if I am preparing a client in a wrongful death case. There’s still going to be targets there because ultimately they want to minimize everything, right? Let’s minimize everything. Let’s make everything look small, insignificant. That is still going to be a target [00:09:00] because opposing counts will be doing their job if they didn’t try to score points in deposition.
That’s what we do. That’s what they’re going to do. So let’s prepare them for that. and organize their truth around those targets. When they see it, boom, it’s already organized in their mind and they know exactly where to go. A very key point here, if I haven’t already said it, make this a visual aid, make some lists, right?
Put this stuff up on a board. Let’s get a good visual on it to see all the facts and all the targets so they can see it and know, right? Make sure they memorize it with that visual aid. Another key place for organizing is that other purpose of a deposition, learning your client’s story, right? What are they going to say happened in this wreck?
What are they going to say happened when they went to the doctor? And it’s just, again, organizing their truth and their story when it comes to damages and liability. But we’re really looking at helping them be able to organize and express the [00:10:00] physical and emotional damages they have experienced. For Many a times people come to a deposition, it has been a year, maybe it’s been two years, sometimes unfortunately longer than that.
So you really have to spend some time walking through all that time to make sure you kind of gather up all the things that happened physically and mentally, emotionally during that timeframe to them, whether they’re recovering or they’re having more surgeries, whatever that may be, but also gathering in all the places where there could be a story.
for the jury to learn. So when we walk through this with the clients, I always look at, Hey, again, I’m big on visual aid. So most of the time I’ve heard something, you know, some ideas and that really kind of helps to start the conversation. But again, we have to remember the jury is the one who’s listening.
So let’s get some stories to help them understand and let’s look at work and go through that whole time period. Let’s look at your family. Let’s look at relationships. Is there any stress? Did things [00:11:00] have to change in the household? What about holidays, vacations, kind of that goes in our family block, and then also, you know, social life, outside of work, outside of family, things change, like what did you do before?
What is it after, right? So just kind of walking through to jog their memory through all those things and be able to, again, write out some stories and have some things ready for them when they get those questions, right? How has this affected you? From the top of your head to the bottom of your toe. What hurts?
What permanently can you not do? All these questions that can be a little bit stumping because again, they don’t talk about this way in normal conversation. People don’t ask a question like that. So it’s, can be a little bit jarring, but also in helping them organize their truth, you avoid kind of this large looming answer that most people want to give, which is Everything has changed, and that may be true, but it’s hard to understand from an [00:12:00] outside perspective.
It’s hard for a jury to understand everything, like everything. So very good to have stories to back up that big, broad statement. And what I normally find is once we go through this and we have this visual aid with All these different stories from different times, different pieces of their life. Then generally they can really say, wow, everything really has changed.
And wow, I have all this information, all this stuff that came from me to back it up. Right? And again, it’s just, there’s there’s. Power in the truth, and that’s all you’re doing. It’s just helping them see that and organize it for them. Also in this bucket of phase two organizing, we do some what I call nuts and bolts, which is we’ve got at some point look at just basically a medical timeline.
And I consider it a rough timeline because we’re just going through what they can remember, what they know, you know, ER, ambulance, primary care, orthopedic, surgery. It’s not super important for me [00:13:00] that they remember necessarily dates, but there may be key dates that they do remember, like their surgery, but I always find it’s really helpful for them to kind of refresh their memories again, because there’s going to have been a gap in time since they finished treatment and this deposition.
So we always just kind of like to refresh their memory, go through that. We know that’s going to be something that defense or the opposing counsel will always ask them about. And then other things that they may need help organizing would be if there’s any prior medical history. That’s going to be part of the deposition.
If there’s any large job or lost wage claims, or this is an employment case, like we know job history is going to be very important. So that is key to organize like any job history, maybe make a job timeline just to help. Again, we’re just trying to go through. Known places that they’re gonna get questions, that we just wanna help them refresh their memory, organize, and then hit any other areas that may just be helpful for them to refresh.
And again, we’re going back to that purpose of the deposition of gathering information. Wanna make sure that we refresh [00:14:00] all memory when that question comes. They may not remember, or they may, because again, we’ve worked really hard to refresh memory and and organize responses for questions. A lot of this organizing and making sure you can see what the targets are, looking at what are their damages is part of the lawyer preparation, right?
So we talk about that in episode 11, doing a memo for you to get ready. So you can see these targets, you can start kind of scoping things out, maybe making lists of questions. Also looking at stories just to be able to prompt them when you start to go through that. Damages section of organization and both of these places, right?
So looking at the targets, looking at the damages and kind of the nuts and bolts, the other things they need to know about medically, you got to remember it’s so key. One of the most important places, important things. You’ve got to use the client’s words. [00:15:00] Do not change it, like resist trying to say like, well, this is going to sound just a little bit better.
Like, let me just, let me just like, we need to just move things around or maybe just say it this way. You may need to help them simplify it. Most of the time people want to give like a two sentence long answer when one would be. Just as good, just as powerful. But a lot of times what I hear, a lot of feedback that I get, and even in my own doing the testimony prep, you’ve got to resist the urge to craft it, right?
To change it, to make it sound better, to make it answer the question more clearly. And this goes back to that, Hey, this is that tough point. We’re going to have to accept people as they are because again, it’s the juries, the backstop here, right? Not you. Not the other lawyer. Thank goodness, right? Not lawyers don’t decide.
That’s what I always say. And there’s two main reasons why. One is they’re not gonna remember it. You’re changing what’s already in their mind. They’re not gonna remember [00:16:00] your words, right? If they do remember their words, it’s gonna sound really scripted and that’s not what you want either because an authentic witness is a powerful witness.
And that is what’s going to be more important to sending a message to the people who are making the decisions. Whether it be the decision makers, the defense counsel, the insurance company, or ultimately the jury, right? Because they’re going to be able to smell a rat just like the rest of us can. And that’s not what we want, right?
This is the client’s case. You know, our job is again, organized. That’s why the title of phase two is organizing, right? That’s what we want to do. And as long as you resist the urge to write your own words or put it in your own spin on it, things will go much smoother in the deposition because you aren’t going to be frustrated when they’re not using your words.
You’re not going to be upset with them for not remembering that. It was never in their minds that way to begin with. And you may have a lot of people that come to you and say, Tell me what [00:17:00] to say. Well, a lot of times you just tell me what to say. It’s like, well, yeah, it doesn’t really work that way. And thank goodness , because we all seen those depositions, right?
Where it’s like, oh, they just, you totally told ’em what to say the whole time. And you can tell, it doesn’t take a mastermind to figure it out. So keep that in mind as you’re organizing and walking through this step that you wanna use. The client’s words, write down exactly what they say. Don’t try to shape it.
All right. Awesome. So I appreciate your tuning in today to episode 15. And if you’ll catch me next episode in 16, we will close out this series with phase three testing. All right. Thank you so much for joining me today for this episode. If you enjoyed it, please follow us on your favorite podcast app, rate, review us, and share us with somebody who thinks they need to hear this episode.
Thank you so [00:18:00] much.
