Client Testimony Preparation Phase 1: Mindset

Getting a client into the right headspace is key before you can jump into questions they will encounter in the deposition or trial. In this episode, let’s learn about why it’s essential to get your clients in the right headspace and the ways you can do that.

This episode is part of a series where I’ll be walking you through the preparation of a client for testimony, either for a deposition or trial, which are two very different places where clients give testimony.

The first phase of client testimony preparation is resetting the client’s mindset so they can overcome the fear, which could cripple them during deposition or trial. 

At trial, a lot of people either freeze or just start talking and never stop. They think they need to just dump everything in their brain on the table. A lot of times, they’ll concede the defense question. And some people even lie in the deposition earlier on because they just want to stop the pain and get out of the deposition as quickly as possible. 

Therefore, you need to tackle that big fear monster first before you can even look at the questions and organize their truth.

In this episode, you will hear:

  • Reasons people are afraid of deposition or trial
  • Fear as a huge defense tactic
  • Ways to address the client’s fears
  • Phase 1: Resetting the client’s mindset
  • Phase 2: Organizing their truth

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Supporting Resources:

Larrick Law Firm

 

Practical Intelligence: The Art and Science of Common Sense by Dr. Karl Albrecht

www.karlalbrecht.com 

If you have a question or comment, please let me know: elizabeth@larricklawfirm.com

Episode 10: How You Can Better Prepare Yourself for Client Depositions https://www.larricklawfirm.com/010 

Episode 12: Silence is Golden – Improve Your Active Listening Skills

https://www.larricklawfirm.com/012

 

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their business and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: [00:00:00] Getting a client into the right headspace is key before you can jump into questions they will encounter in the deposition or in a trial. So let’s learn about why it’s essential to get them in the right headspace and the ways that we can do that. 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 and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hello and welcome to episode [00:01:00] 14 of Trial Lawyer Prep with me, Elizabeth Larrick.

This is a podcast dedicating to Assisting trial lawyers in connecting better with their clients and better with their juries. Today we are going to start a series to walk through preparation of a client for testimony. And testimony being depositions or trial. And hopefully we can walk through three main parts or phases of the client preparation for testimony.

Now, we will have other episodes that will dig really deep into deposition and dig really deep also into trial because those are two very different places where client give testimony. But for today, episode 14 is going to be focusing on our first phase or our first part of client testimony preparation.

This phase I like to call getting your mindset straight or getting the client’s mindset straight I’m going to talk about [00:02:00] how you can do this and why you can do this, but of course we need to tackle the why. Because we’re A lot of things I talk about on this podcast will add time. They do add time to what we already have in our lives, our busy, fast paced professions.

And so let’s talk about it because I know we want to be able to do things efficiently. And that’s what’s really important is spending time efficiently. And yes, a lot of the things that I talk about on this podcast and really in this episode as well will take more time. But what I have found in my experience and with other lawyers that are using the same kind of setup for preparation with their clients is it’s time well spent because we spend it wisely.

A lot of time now will significantly reduce. It’s the time that you need to spend on these [00:03:00] particular issues down the road. We want to do these steps. with the thought in mind that we’re increasing trust with our clients and we are reducing fear and fear is a huge defense tactic. Um, we’ll talk a little bit more about that in step one, but just as a sidebar, there’s a lot of fear going on.

We have in our line of profession is, you know, plaintiffs, personal injury lawyers is where my background comes from. And it’s a lot of eat, which kill, you know, and you have to do well on a case. And so there’s a lot of fear in you. You’ve got to do things right, and you’ve got to hope your client does things right as well along the way to line up with what needs to be proved in the case and ultimately the bottom line of the case value.

So let’s work our way back to talking about the first phase of client testimony preparation and the why. [00:04:00] So much information about client depositions and a lot about client deposition, not necessarily as much about trial. Trial really comes from TVs and movies, but if you’re out there searching for information about how to get ready for deposition as a client, most information you’re going to find is you’re going to be asked to come to this place and you’re going to answer these questions by a professional.

And what I like to call kind of a self assessment. sit and suffer mindset. Really don’t have any control. It’s a necessary part and good luck. You know, don’t say anything. Only answer the question you’ve been given and don’t share information. That’s a really confusing message for people who are not in the legal profession, and it’s just confusing.

And so when we have confusion, generally that just kind of creates fear. The other place I feel like people gather information about what may happen in deposition or trial is TVs and movies. Those don’t [00:05:00] really paint an accurate picture of what happens in the real world. So as you can imagine, most of those things are not accurate, thus inspiring more confusion and fear.

I also have clients who talk to friends, relatives, spouses about depositions and what they should do and looking for advice. It’s because A lot of people never experienced a deposition or a trial. And so what do we normally do? We ask for advice. We go look for it. I mean, we all carry around a computer in our pockets and we just open up Google and see what’s on there and you can go check out YouTube and find all kinds of depositions.

Justin Bieber, Donald Trump, a lot of depositions are up on YouTube and generally they are thoroughly entertaining to watch. But. It’s terrifying as a client to watch, and some of them are really painful as a lawyer to watch because the activity, the, what everybody’s doing on the deposition is really kind of cringeworthy.

So kind of with that backdrop in mind, like that’s what [00:06:00] people come into our offices to get ready. And there’s just this big fear of the unknown and what that kind of translates into for some people is just resistance. They don’t want to do it. They just resist it. They’d even just rather settle their claim and be done with it, so they don’t have to go through this deposition.

And sometimes you have people who do the opposite, where they over prepare. You know, they want to see every medical record. They want to read every single discovery piece of it. And, uh, That’s a good thing, but also they’re looking at it through a lens of what I just described, right, this sit and suffer lens, like you’re gonna be forced in this room, you need to have all these answers to these questions, questions that you don’t even know they’re gonna ask.

So we want to sit back and we want to really look at how can we use phase one to reduce this fear, because if we don’t remove this uncertainty, like what is this process and how do I fit into it, if we don’t remove this loss of control, how I have to [00:07:00] answer all these questions. They’re going to be questions.

I don’t even know what they are. And also this huge fear of I’m going to be judged. This could be humiliating. I’m going to go in there and a professional is going to ask me questions and probably be judging me all these kinds of fears. Right. And so. This fear of uncertainty or fear of loss of autonomy, loss of status, like all of these kind of things come from this great book by Dr.

Carl Albrecht, Practical Intelligence, the Art of Science and Common Sense. He talks about this fear. layers of fear, and what’s the worst fear, and how we really kind of create fears. Great book. If you want to just learn a little more about the levels of fear, just google Carl Albrecht, and we’ll put all that in the show notes so that you can do that if you’re, if you’re curious about it.

Of course, I was curious and learned about it in a few other books, so that’s why it really helped me. understand more about how to help a client get ready. So I pass that on to you. But all in all, we just know like [00:08:00] there’s a big fear monster that we’ve got to tackle before we can try to help them look at questions and organize their truth.

So if we don’t work through this big fear monster and this, Uncertainty and loss of control people will become overcome by it in their deposition at trial. A lot of people freeze. A lot of people just start talking and they never stop. They think they need to just dump everything in their brain on the table.

A lot of times they’ll concede the defense question. And I’ve even seen people lie to end the depo earlier. Because basically they just want to out, stop the pain, right? Get out of this deposition as quickly as possible. And that’s not what we want! Uh, that’s not what we wanted all as lawyers. I mean, one, they’re our client.

Like, they’ve hired us. They trust us to hire us and get us to this point. Really cringeworthy as far as like human to human, but [00:09:00] also as far as the case goes, like really can be detrimental to the case if they’re conceding points or just lying to get out of the deposition. And lying, of course, to get out of the deposition really is a very extreme example.

Most of the time they’re just going to concede defense points or defense questions just to get things over with earlier. And we talked about a little earlier how like fear is a huge defense tactic because it’s an emotion that can be manipulated and they know it’s there. So fear is one of the biggest places that they go when it’s a client deposition or even trial and twist it and use it against them.

There’s a big factional lawyers that don’t spend a significant amount of time preparing their clients for depositions. So this is the best place for the defense to get in there, do their job, you know, hit their targets, prove their case through your client, and manipulate that fear. If we allow them to do that, that deposition then will put a hamper [00:10:00] on ability to settle early, ability to settle at full value, and sometimes even the ability to get Fair value at trial because that deposition will get drug back into that courtroom and the client has to face it all over again.

So this is something really I try to stress that we tackle, we talk about early, frequently, and often with our clients just to make sure that we are staying ahead of this. Let’s see. mental, you know, emotional warfare that’s going to go on that they’re really not ready for. So we don’t want to skip this kind of phase one of addressing this uncertainty, loss of control, humiliation.

Nothing we say will stick if we don’t, because fear is just so powerful, right? It’s at our core. So let’s talk about, hopefully I’ve convinced you, this is going to be something that you want to do. Otherwise, you know, you’re on your own. But we live in a What I feel like a different place now from where the original [00:11:00] advice of, don’t say anything.

Don’t share it’s yes or no. We just live in a different place. Juries expect things differently. And let’s flip the script. I’m always encouraged to get clients into a different mindset and really empower them. So let’s talk about ways to address that and getting them into that right mindset. So I always frame this as, this is my first meeting, just out of the gate, getting them ready either for deposition or for trial.

And you can do this in as short as 30 minutes over Zoom. Like, it’s all dependent on kind of the nature of the case and complication, but I always make this first, right out of the gate. And before we jump into talking about what we’re going to do, or, hey, this is the problem in the case, I sit down just to find out What they do expect.

What do they know? Like how much information do they have? And you just do that by asking open ended questions. What do you think is going to happen at the deposition? Who do you think will be there? [00:12:00] How long do you think will be there? What’s my job as your lawyer? What’s the job of the other lawyer, the defense lawyer?

And why do they want to take your deposition? The key to this particular open ended question series is just to listen. Don’t interrupt, don’t try to correct them, but just listen. And if they come back at you with things like, Well, I don’t really know. I’ve never experienced this. Okay, well, you know, what have you heard?

Because we know there’s something back there. We know that they’re just not completely blind. They’ve experienced something through TV or movies or even online. So I always like to dig really deep and just listen. Tell me more about that. I’m practicing my silence and my active listening that we talked about in episode 12.

So you can go back and listen to that episode to help you kind of brush up on your active listening and your silent skills. But this is a step we really want to gather.[00:13:00]

And, most of the time we hear things like it’s gonna be horrible, they’re gonna twist my words, I don’t remember everything, a lot of the anchors of some of these uncertainty, loss of control, kind of fears that we talked a little bit earlier, just obviously related to the deposition. Once you gather all that information up, right, drain that well to find out.

What all the things they expect where that all comes from. Tell me more about that Then you can provide answers, right? And what I always say is start with giving them certainty, which would be Laying out, even down to a diagram if you need to, and where people will sit in the room as far as the deposition.

What time is it? How long is it? Who is there? What room will it be in? What’s the job of the court reporter? Who’s not there? Is there a judge there? Or is the other driver going to be there? Or is there going to be somebody from the company there listening? [00:14:00] All those things you can find out, right, if they will or if they’re not going to be there.

Everybody has different procedural roles. I’m here in Texas. They were supposed to tell you if someone else is going to be in the room. And so we can find that out here in Texas, but you may have to ask some questions to make sure you have the answer to that question about who will be in the room. One of the other fun ones I like to talk about is what my job is at the deposition.

And so I explain it to them that my job, I’m a lawyer. So my job is to listen to the lawyer. And my job is to object to questions that don’t meet the legal rule. Now, I only, I know that rule. I’m a lawyer. That’s why I listen to what the lawyer says. We’re going to prepare so well, and you’re going to be so ready to go.

I don’t need to listen to your answers. My job is listening to the lawyer. And saying objections so it gets on the record. And I always clear up occasionally, I’ve heard this a couple times recently, with people I think [00:15:00] doing some of their own research that when the lawyer objects, that’s a cue, right, to not say anything until they tell you you can answer the question, right?

They’re trying to give you some kind of secret signal. People do train witnesses to do that. That’s not what we’re going to do here today because that’s not necessarily preparing somebody. That’s. training and coaching them, right? That’s like, when I say objection, you know that I want you to say, I don’t know.

That’s basically woodshedding somebody. We’re not going to do that. But I really, I lay that out because I want them to know my job is the lawyer. I’m listening to the lawyer. I’m tracking where they’re going. I’m listening to those questions, because when it becomes my turn to ask questions, maybe there’s something I need to ask you, right?

So I’m that safety net at the end, but I, the only way I can do that is I’m listening to those questions and making those objections doing my job. We also talk about, in detail, why. Why are they taking your deposition? Learn information. [00:16:00] figure out what you’re going to say, right? What’s your side of the, of the truth, your side of the story, and then also, right, to prove their defense points, right?

What are their targets? It may be to minimize damages, maybe it’s to score points on liability, but I want the clients to know it’s not all about, Scoring points for their side because a lot of that times that inspires anger and we really want to, again, anger, fear, we want to move that out of the way because we want them to be able to supply information and talk about their truth without that fear and anger coming up and popping up.

So once we kind of give them that certainty about what they can expect in the room, what they can expect for questions, why we’re doing this, then we can really talk about, okay, so if my job is questions, your job is answers. And if this is a deposition, you have a right to speak without [00:17:00] interruption.

Without being cut off, and that court report is going to take down everything you say, right? And there is power in that transcript because people will read it, it’s your official testimony. So we’re going to try and give them back some control, right? And then ultimately talking about how to give them power, that there’s any humiliation going on or any kind of concerns about being judged, right?

We talk about how, because you have control of your answers, and they have to listen to you, we really want to work on in our next phase, organizing your truth. Looking at those defense targets, organizing your truth, getting your facts ready to go, and then organizing. and testing out. So give them a real live look at what it looks like.

And so now I’ve just given them a lot of certainty, but I’ve also given them the roadmap and why. And most of the time, I also talk about how we want to flip the script. We hear a lot about how this is a sit and suffer, but really, we [00:18:00] want this to be about this is your turn. This is the best place for you to come in and tell your truth, tell your story in your voice.

And that this is the place. This is that one chance, if we’re talking about deposition, right? If we’re at trial, they’ve already gone through a depo, but this is their place to tell their story, to do their job here. That’s their job. I always talk about what my job is as a lawyer, and what their job is. And then ultimately, who’s listening?

They’re going to be facing off with a lawyer, but ultimately a jury is the one who’s going to be listening and making decisions. And thank goodness, thank goodness it’s not lawyers and judges, right? So there’s a, there’s a good thing to be, to embrace that in the sense that other people just like you are going to be making decisions, not the person across the table trying to drill you with questions.

And then, ultimately, like I talked about, the power of the transcript, right, it cannot be ignored. So, they’re going to ask questions, that court board is going to [00:19:00] make, book your testimony, and a copy of that goes to decision makers, right? That goes to the insurance company or the company that makes decisions, and people will read it.

So, this is the place. We’ve got to lay it out there. To put it out there so that we know that they can’t ignore it. So, like I mentioned earlier, I suggest this doing as a very first meeting. And, even if, You’re getting ready to schedule the deposition and you’ve got somebody who is extremely fearful, just extremely fearful.

Maybe you do this when you’re going to start setting the deposition, right? Get on zoom with them, see them eye to eye, get them in person to have this conversation about, Hey, it’s scary and it’s unexpected and there’s a lot of uncertainty, but we’re in this together. Let’s learn all this, right? So let me take that moment to be silent with you, to be a good listener, to know I am really listening to you.

I’m really going to address all those things, but let me make sure I really understand what’s happening. But normally I do it [00:20:00] once we have the deposition set, then we kind of look at it. Schedule our preparation. But this will give you so much more cooperation. They’re going to be so much more encouraged and so much more involved in their case if we solve this big fear monster right out the gate.

They’re gonna be much more motivated to come back to look at their answers and organize their truths and role play to have as much certainty as possible. So Just to recap, we’ve talked about phase one of our client testimony prep, which is resetting the client mindset. And I say resetting because they have, they have a worldly view.

They have some worldly expectations that are sometimes backwards to what is the truth about the power that they have in their case and the power of their testimony. So we want to reset that. We want to tackle that fear monster that we know will be manipulated and tackle that first, because otherwise that fear is just going to jump right up.

They’re going to freeze or concede points. And how we do that with those big open ended [00:21:00] questions, just really learning about what they think, a lot about how they think using that active listening skill to pull it all out, patiently listen, tell me more, and then addressing it one piece at a time with our first piece being the certainty, right?

The logistics that they’re going to face in the deposition or logistics of trial. Awesome. Well, thank you so much for joining me on this episode. I would suggest if you want to learn a little bit more about what you can do before even getting to step one to go back and revisit episode 10, where we talk about how you get ready, how the lawyer gets ready and creating a memo to look at the information and anticipate those defense targets, those opposing counsel targets for the deposition and for trial as well.

Thanks again for joining us. If you enjoyed this podcast, then I ask that you follow, subscribe on your favorite podcast app and share this episode. If you thought [00:22:00] it was helpful, if you have any questions or have a topic that you would love to be addressed, please send me an email. I’m going to put my email in the show notes along with the information about Dr. Carl Albrecht and his layers, five levels of fear. So awesome. Have a great one.