AT HOME, BUT NOT ALONE BRUSHSTROKES #19
This is the first of a series on winning the workup phase that focuses on depositions. Cases are won or lost in depositions. To think of them as boring discovery is to lose an opportunity to do some serious lawyering, feel fulfilled and make a difference. Depos are exciting, essential trial preparation, every bit as deserving of the passion and intensity that stirs you into action during the days before trials begin.
If your clients do poorly in deposition, settlement values go down and the fallout will continue into trial. If they do well, values increase and victories follow. If defense witnesses do poorly, values of your cases go up, as does the likelihood of winning trials. If their witnesses come out of depos unscathed, the defense will be emboldened.
In this brushstroke we’ll cover one part of a two-step focusing process that will help you help your clients do their best. When we finish that process, I’ll move on to a different two-step focusing process that will make it likely depos of defense witnesses will end up strengthening your cases, not theirs.
You cannot prepare your clients for depos until you prepare yourself to prepare them. To prepare yourself it is helpful to keep in mind there are two end goals for your clients’ depos. Those two end goals are:
1. Putting their best foot forward
2. Avoiding pitfalls
Think of it as helping them stride upright and not letting the other side trip them up. I’ll talk about putting their best foot forward next week. We’ll start with avoiding pitfalls.
Priors
One of the worst pitfalls of all is your client denying past treatment for neck/ back pain when there are medical records to the contrary. The solution is to avoid that trap altogether, to head it off before it happens.
The starting point is to get all of the medical records and comb through them. If the defense has subpoenaed medical records from healthcare providers, make sure you get every one of them for your client’s depo prep. Before preparing your clients for depositions, you have to prepare yourself.
Make a notebook with excerpts of all records that document prior neck/ back complaints. Meet with your client and go over every entry mentioning prior back/neck problems. Have your client write out a list of all documented prior neck/ back complaints based upon the records and memory. Explain that you can deal with all of those prior instances, they are not a problem. The only problem would be if they failed to report them in their deposition. Be direct and forceful on this point. Let them know the defense will find out about all of it. There are no secrets when it comes to past medical care.
Consider bringing copies of a binder with medical record excerpts to the deposition to hand out, one for the court reporter to attach, one for defense counsel and one for your client. If you choose to do this, hand them out at the beginning of the deposition on the record. Explain the binder contains excerpts of medical records where there were complaints of neck/ back pain before the crash that is the subject of this lawsuit. You brought them to make sure the defense is aware of those records. Also, consider having your client bring with her the handwritten list she made of priors.
When defense counsel asks questions about priors, your client can refer to the binder and her list. If the defense objects, the record will be clear that the defense is not looking for the truth, they are trying to set a trap. By going through this process, it is highly unlikely your client will miss anything. If he does forget something, use the list and notebook to clear it up on the record by asking follow-up questions. This process will help your client avoid what otherwise could be a damaging pitfall.
Facebook posts, social media, and surveillance
As we covered above, your client’s activities are not a problem. We’ve all heard of the phrase “use it or lose it”. It is admirable to make the most out of a bad situation. No one says your client can’t do things. This is an injury that currently interferes much more with the experience of doing than the doing. Talk to your client about how you will explain this to the jury. The only way those pictures or films will hurt them is if they deny being able to do things depicted in the pictures or film. Once your client understands it’s not a problem, they will not be scared of the evidence and will have no reason to hide it.