breakthru - article 03 - Client Preparation for Deposition & Trial

Client Preparation for Deposition & Trial

Content…

The areas I explore when working with clients before their deposition or trial. Typically I’m called in to assist a client in dealing the emotions, reactions and defenses that may prevent them from clearly and powerfully telling the story of their experience.
Questions you may consider asking when working with your client. These come from listening to the concerns and fears of clients for over a decade.

Who is your client?

I begin by asking for a list of the client’s positive qualities and characteristics. This serves several purposes. I begin to see the client as a real person, not just a case. I see the person from their best perspective, rather than just the pain and challenge of their story. The client gets in touch with their strengths and what they value most about themselves before we begin our work. He or she becomes more energized about the work ahead. I also prepare the person to be ready to have those qualities called into question by the opposition in the case.
A caution: this process is usually uncomfortable for most people. They’ll more readily tell you their weaknesses. I get around their resistance by asking, “What would those who love and respect you, say about you?”

Clearing up misunderstandings

It is possible that by the time clients are being prepared for deposition they have issues regarding their attorney or their case that they are upset about but have not voiced. I double check for this because the attorney/client bond is so critical and these “upsets” need to be cleared up so that there is trust. If a person has an unspoken complaint, they will not give full attention to preparation. Consider asking these questions if you’re feeling resistance from your client:

Is there anything I’m inadvertently done or not done that has bothered or upset you?” Regardless of your perspective, validate their experience and apologize. Then explain your point of view, again apologizing for the misunderstanding.
“What can I do or have my staff do to make this process easier for you?” You may not be able to fulfill on the need, but it will unearth undeliverable expectations and clear the air.
“Do you have questions that I haven’t answered or are there areas you’re unclear about?”

Making sure they know exactly how their case will unfold

I realize that these may seem obvious. Nonetheless they still come up. I understand that an attorney and/or their staff may have given this information but the person, in the stress of the moment, didn’t retain it. Double-checking won’t hurt.

Be clear about time frames and extenuating circumstances that may impact the duration of litigation.
Be clear that the process is like nothing they’ve experienced (unless they have.) It will require special preparation and will very likely drive up all kinds of emotions fears and concerns.
Assure them that you will be clear with them each step of the way and you will prepare them thoroughly for their part in the process.
Ask if they have questions/concerns about dealing with your law office – for instance, how they’ll be treated, what will be required of them, when they can expect information, etc.
Use English, not lawyer-ese. Too often attorneys believe they’ve explained in great detail about what’s going to happen, but it makes no sense to those with little grasp of legal terminology. Clients will often not want to say anything for fear of looking stupid.
Reassure them that you welcome questions rather than have them worry unnecessarily about the unknown.

Fears and concerns

I always ask about the client’s fears and concerns. This may take some sleuthing, as I want answers that are specific and personal. These underlying fears and concerns, unaddressed, will distract them from giving their full attention to the work or questions at hand.

Ask about any fears and concerns before each major undertaking (dep, mediation, trial.)
Don’t try to reassure, for the moment. Listen and take notes until they’re done.
Make sure they’re speaking specifically, not in generalities.
Answer the simple questions, then focus on the others during preparation.
Revisit this question later, making sure everything’s been addressed and that no additional concerns have surfaced while going through the preparation process.

Avoidance of talking about pain, fears for the future, etc

I have found that clients will avoid talking directly about their deepest pain and their fears for the future. Yet the pain they’ve experienced (emotional, mental, physical) is the core of their case.

Almost everyone I work with avoids speaking directly and specifically about the pain he or she has been through. They’ll tell stories about the circumstances surrounding the pain, but not want to speak about the injury itself. It takes persistence and compassion, a willingness to walk with them through all the emotions that arise in reliving the experiences.
There is a difference between talking “about” the facts versus re-experiencing the trauma and sharing that with others. In the former the facts sound flat and unemotional and they will carry little impact. The latter is full of the feelings, sadness, anger - the reality of their experience. This does not make for easy listening but builds and strengthens the foundation of the case.
Admitting your own discomfort, should you have any, as well as stating your willingness to listen will help your client to open up. Your responses are pivotal.

Allowing for emotion

Invariably clients tell me they have a horror of “breaking down” in tears. Some have attorneys who are adamant that their client mustn’t cry or express anger.

If a client is too busy keeping a lid on their emotions, they will be inattentive to the questions they must answer and they will tire much more quickly.
The expression of genuine emotions gives depth and humanness to the client’s story. When emotions are unexpressed and held in check, the person comes across as hiding something, inauthentic and their story is weakened.
Clients can have their emotions, can cry, feel anger and sadness and still keep answering questions clearly and powerfully. Trust this to happen.
Authentic expression is compelling and memorable.

Uncovering a client’s “hooks”

I define a “hook” as a personal and automatic reaction to perceived attack. We each have our unique ways of defending ourselves when we feel undermined. Uncovering your client’s hooks will be illuminating for the both of you. It will give you a focus for preparation and the client an awareness of where they’re most vulnerable. Possible ways to define a person’s hooks:

Your observations of what your client does under pressure are critical. Share what you notice and brainstorm ways to counter overreactions.
Ask: “In your life, if I could watch your reactions when you feel attacked, what would I see? What would I hear?
Ask: “If you are criticized or doubted, what are you afraid will happen to you?”
Ask: “What type of personality/person makes you most uncomfortable? Why?” Have your client be specific.

Answers to these questions will help you to uncover your client’s core fears (for example, being seen as a liar, a loser, incapable, irresponsible, dishonorable, etc.) Each of us is especially sensitive in one area. Once you see this, you can address it head-on in preparation and have your client practice keeping a cool head.

You can prepare tough mock questions designed to trigger their hooks. They will gain experience in seeing their own reactions and strengthen their abilities to come “from the heart” rather then defense. You can also suggest they practice noticing where they get hooked in their day-to-day life.

Caution: Beware the response: “Don’t worry, I won’t to do that <the “thing” they do> when I’m in deposition.” Don’t step over that. Let them know that it is highly possible that tough questions and/or the mannerisms of the other attorney will hook them. Tell them you are preparing them so they can practice staying calm under all circumstances.

Uncovering hidden information

The following questions are effective at uncovering hidden facts. Many people I work with are withholding information they hope no one will ever find out, especially their attorney. “But it doesn’t have anything to do with the case!” is a typical response. Invariably it will affect their case, if only because they’re expending energy worrying that it might come to light. Only ask these after you’ve established a rapport with your client.

Ask: “What is the one thing you are most afraid to tell me? Or “Is there anything you don’t want me to know?”
Ask: “What is the question you’re most afraid to be asked in deposition?”

Body Language

Keep an eye out for the client’s body language. It is a huge source of information for the observer. Slight shifts can empower your client to be at their best. Insist that they practice their best postures during preparation. (Of course allowances have to be made for injury and pain.)

Watch for the body language they are using when they are powerfully and clearly telling their story. Point it out to them immediately and specifically. (Examples: uncrossing legs, sitting up straight, leaning comfortably forward, resting arms on the table, making eye contact.)
Note the body language they use when they are “hooked,” closing down, not paying attention or reacting. Point it out to them immediately. You want them to become aware of their body’s reaction to being hooked. (Examples: facial expressions, fidgeting, leaning forward aggressively, waving their hands around, sitting back passively, slumping, casually crossing their legs.)
Asking your client what he or she feels when they’re in that position will help them deepen their awareness of what is going on in their minds.
Caution: many clients are afraid that admitting to their physical pain during deposition (by standing, walking around, taking a break) will come across as “phony,” overly dramatic or embarrassing. If they are hiding their discomfort they won’t be giving their full attention to the questions.

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