Guest Michael Neff: Client Deposition Preparation in Premises Liability Cases
There are a lot of emotional landmines when it comes to premises liability cases. For instance, summary judgment is an issue in just about every premises liability case. A lot of lawyers have this mental shortcut that if they beat the summary judgment, then the case is going to settle.
But in premises liability cases, damages are not enough. You’re going to need to navigate through that, especially because insurance companies will always try to look for opportunities where they can take advantage of them.
Now, we can’t stress enough that the preparation of the clients for deposition is key in these cases. The client has to be prepared to tell his or her story clearly so there’s no ambiguity, no landmines, and no rabbit holes. There are no missing pieces to it.
In this episode, Michael Neff joins us to talk about premises liability cases, which he has been doing for 15 years out of 30 years that he has been in practice. Michael emphasizes the lawyer’s responsibility to eliminate the legal risks where they can, and that means anticipating where problems may arise. Remember, the trial is not about the trial lawyer, but about what the jury wants to do for these parties.
In this episode, you will hear:
- The importance of client preparation in premises cases
- Factors that can derail premises liability cases
- Minimizing additional harm to your client
- Why damages are not enough in premises cases
- The importance of working with a consultant
- Being efficient in how you present your case
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Supporting Resources:
Email Beth@premisesliability.org for a 1-year free membership to the National Association of Premises Liability Attorneys.
Premises Liability: https://www.trialguides.com/products/premises-liability
Advanced Premises Liability: https://www.trialguides.com/products/advanced-premises-liability
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.
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Episode Transcript:
Elizabeth Larrick: Hello and welcome to a new episode of trial lawyer prep with your host me, Elizabeth Larrick.
This is a podcast dedicated to trial lawyers who are trying to connect better with juries, get their clients ready and prepare cases better. I am super excited for this [00:01:00] episode because we have an awesome guest who’s going to come talk to us. about something really specific and I love when people niche down.
That’s what I love to do. So I’m excited to have Michael Neff join us today. So hello, Michael. Thanks for joining us.
Michael Neff: Thank you so much for the invitation, Elizabeth.
Elizabeth Larrick: Fantastic. Well, for some of our listeners who may not know, let’s talk a little bit about where are you based out of? What’s your niche? How’d you get into that?
Michael Neff: That’s a story. So, I am in Atlanta, but I have found myself working on cases throughout the country in the last couple of years. I started Working on premises, liability cases, probably 15 years ago. And when I was in law school, I actually thought I was going to be a real estate lawyer and maybe a real estate developer.
And I’ve always had a big interest in real estate. In fact, I got my real estate license in New Jersey when I was 18. And that was a summer job for a couple of years. Real [00:02:00] estate has always been an interest of mine. And then the intersection between property rights. and property responsibilities appealed a lot to me.
As a tort lawyer, I had to come to realize that although they’re very different, a car wreck and a premises liability case, they are united by the fact that there are both rules of the road. There’s both safety rules. And if they’re followed, keep people safe. And if they’re not followed, needlessly expose people to serious danger.
It has been an evolution because there’s lots of emotional landmines and premises cases. that I didn’t appreciate coming out of law school and didn’t need to appreciate working on and trying to correct cases, but they’re there.
Elizabeth Larrick: Absolutely. Not to mention the rigorous legal jump hoops. You got to jump through just to survive, to keep those cases [00:03:00] going.
Michael Neff: Absolutely. Yeah. Summary judgment is an issue and just about every premises case. Lawyers that want to work in this arena definitely need to factor the risk and time that is different than in a car wreck case.
Elizabeth Larrick: Absolutely. We met here recently at Tennessee Trial Lawyers. You had come and were speaking and I was doing the same and we kind of found each other intersecting at this, the importance of having client preparation.
in premises cases and why it is so important. So let’s talk a little bit about that. You know, what you’ve been doing this for 15 years. Why is it so important and what specifically somebody’s not done these before, or maybe they’re not knowing about the landmines. Why is that prep so important for deposition?
Michael Neff: It’s interesting. I’ve been practicing about 30, but it’s in the last 15 that I really started doing more and more premises work. And the thing that I didn’t appreciate [00:04:00] in a premises case is the ways that you, that you as a lawyer can come up with a disappointing result or a loss. And one of the big ways is if your client’s not able to tell the story in a way that the jury understands that there’s no comparative fault, that the client’s not able to tell the story clearly.
And ambiguity for a plaintiff’s lawyer is really death. If something can get interpreted two ways, it’s usually Interpreted the wrong way from our perspective. So I really learned to appreciate that the client has to be prepared to tell his or her story clearly. And so there’s no ambiguity. There’s no landmines.
There’s no rabbit holes. The jury understands A, B, C, D, E, F, G, [00:05:00] and there’s no missing pieces to it. From multiple focus groups and from learning lessons the hard way, we have invested more and more time prepping our clients both from a legal perspective here’s issues and perhaps more importantly psychologically or emotionally.
Hey, what do you need to feel comfortable? What do you need to own the story and not be shaken by nerves or guilt or whatever a witness might be going through?
Elizabeth Larrick: Absolutely. And I think one of the things, having done a little premises viability back in the day was, It gets so detailed on like the mechanism of the event, like left foot, right foot, right wrist, left wrist down to the T.
And I love that you pointed out because if there’s any ambiguity, the jury is going to skew it [00:06:00] against us.
Michael Neff: It seems to work that way. And it’s from a lawyer perspective. I think part of our responsibility is to try and eliminate legal risk where we can. And that means trying to anticipate, hey, where could we have problems?
And one of the problems. is uncertainty or ambiguity about the story. And another is frequently a client having some type of subconscious guilt or self blame or something like that, that can really contribute to them torpedoing the case. And when you boil down to it, a lot of times the emotions in my experience have resulted because they didn’t understand the importance of the safety rules.
They didn’t understand what the [00:07:00] property owner should have done. And therefore, they’re hyper focused on what they did, which is what the jury frequently does. If we don’t tell a compelling story, about the safety rules. And we don’t tell a compelling story that they can conclude that the defendant knew or should have known about the safety rules.
Newer should have known about the hazards and newer should have known how to eliminate or minimize the hazards. And that’s part of the challenge. You really need to plan out your opening statement and your direct exam and your cross and your documents. It’s much less intuitive than a car wreck for everybody involved.
Elizabeth Larrick: Absolutely. And I think one of the things that you talked about, which is, I think one of the biggest hurdles in premises cases, because it’s not as obvious as, you know, driving down the road. You got to get a license. You got to learn the rules. Like [00:08:00] jurors focus groups always are like, well, what do you mean there’s rules for grocery stores?
Like, and so there’s a huge education level. And I’m really glad that you pointed that out because our clients don’t know that when they don’t spend time to learn that they’re still stuck in that same mind frame of, well, gosh, I should have seen where I was going. Uh, show was worn flip flops, you know, the all the things that we normally hear from focus groups They’re still in that mindset.
So
Michael Neff: yes, well, I think the the good thing about car wrecks for younger lawyers Is that we all generally have driver’s licenses and all the jurors generally have driver’s licenses So when you walk into a courtroom, it’s not uh, it’s not something that’s complicated for the fact finder It’s not something that’s complicated for the lawyers You But when you get in to premises liability cases, unless you have a security background or a product or a management background or a safety training background, you don’t [00:09:00] intuitively grasp.
Oh, wait, this was unnecessary. Oh, wait, this person shouldn’t have been hurt. Oh, wait, if only they had done this. Instead, in my experience, The jurors tend to look at if only and say, geez, if only the plaintiff had done something differently, but once they learn the rules Then I think they are empowered to say, well, geez, the property owner didn’t do what they should have done.
And why is the plaintiff lawyer expected to be a security expert or a property management expert? That’s not fair.
Elizabeth Larrick: Gotcha. Absolutely. So what I want to kind of talk about is when we think about responsibility and like getting them their story straight. Is this just just kind of survive summary judgment or are we thinking more like, Hey, we’re setting it up from jump street from depo to make sure we’re going to knock it out if we end up going to trial.
Michael Neff: I definitely think that if you’re taking the premises case. A [00:10:00] lot of lawyers have the mental shortcut that if I beat summary judgment case is going to settle. And one of the things that I think COVID hammered home to a lot of plaintiff’s lawyers is that insurance companies look for opportunities and they take advantage of them.
And that from their perspective is being a good business person. But what I think that means is we need trial skills and we need to always be thinking about trial. And what I’ve found and what’s been taught to me is that in order to get a good verdict, a jury has to understand your case and they have to like and want to help the play.
And sometimes a plaintiff can be sympathetic if they’re uncertain or hesitant or scared, but sometimes it can be construed differently and their uncertainty can be viewed [00:11:00] negatively, like they don’t know what happened or they’re believable. So I think I always look at taking a premises case or any case as if I take it, I need to be ready to try it.
And, you know, if I’m going to invest time and money and emotion and effort into a case, it needs To be ready to roll all the way and I think it’s just so Underestimated how important it is that the jury like respect trust and believe your client You could be a really good lawyer, but if they don’t want to help your client You’re not going to get a great result for them So we need to remember that the trial is not about the trial lawyer The trial is about what the jury wants to do Forward These parties.
Elizabeth Larrick: Absolutely. And that’s one thing I always talk about is, hey, when we’re [00:12:00] doing anything, what does the jury want? What does the jury need? Yeah, for sure. Absolutely. It’s as much as I like to think it’s about that awesome cross exam and getting to what does the jury want to hear? What do they really want?
Michael Neff: It’s interesting because Hollywood and TV shows tend to make lawyers Paul Newman in The Verdict and Tom Cruise in A Few Good Men and Matthew McGonaghy in A Lincoln Lawyer. You’ve got these dashing lawyers that save the day or win the day. Gregory Peck to Kill a Mockingbird. With my cousin
Elizabeth Larrick: Vinny. I mean, hello.
Michael Neff: What’s that?
Elizabeth Larrick: My cousin Vinny.
Michael Neff: Oh, I love My Cousin Vinny. Yeah. Or you could go with Legally Blonde. Yeah. So the lawyer is the star in those shows. And lawyers are important, but it really, really, really, really matters that they like and respect and believe in [00:13:00] the plaintiff. And I think they don’t teach you a thing about this in law school.
And they really don’t teach you about it in a lot of books. I’ve read a lot of trial guides books, I’ve written a couple, but no one really encapsulates and brings you this story that it’s about the plaintiff. One of my favorite books is 12 heroes, one voice by Carl Bettinger, which is about empowering the jury.
And that’s a little bit about the lawyer’s role as a Sherpa, but there’s not a, a great book that I know of about client prep. It is just not either understood or focused or appreciated or maybe it’s a soft science and a lot of people don’t really understand it, but it is hugely important.
Elizabeth Larrick: Yeah. And so I have a pretty [00:14:00] specific point of view on this particular point.
A lot of people disagree with me and that is. I treat deposition preparation just as important or if not more important than trial preparation because I feel like that’s the time my client needs to get it all out.
Michael Neff: Yeah. A lot of
Elizabeth Larrick: people disagree because they think, no, no, no, no, no. We got to save it for trial.
So what’s your point of view on that?
Michael Neff: Well, I think there’s a lot there, but I think the thing that most importantly jumps out to me is you have to get out any guilt that the plaintiff might have or any doubt or any self blame because really good defense lawyers hone in on that and they take advantage of that and they extrapolate that.
So if your client isn’t really Sure about all the factors, and it gets really sensitive and complicated, particularly in a sexual assault [00:15:00] case where self blame can come in into play. You, you as a lawyer have an obligation to your client to. minimize additional harm to them, to protect them, and to help get them through the process.
And I think especially in sexual assault cases, you need somebody good to talk to this client and help this client Get beyond this thought that they somehow are to blame for it.
Elizabeth Larrick: Well, sure. Absolutely. And I think that’s I mean, I call it your depositions or emotional warfare because this is the Opportunity that they can sit there for six hours if they want And just ask and ask and ask, ask, and you got to be ready that they need to feel ready to be able to know what to [00:16:00] expect.
And like you said, especially with the self doubt and the guilt and the other emotional warfare that comes in with being just sit in front of them. So I have another question. So a lot of times we have premises liability cases, we’ve got clients that come to us and they say, yeah, I don’t know what happened.
I think maybe that’s the thing, or maybe it’s just some water. So do you take those cases, not take those cases? What do you do with those fines?
Michael Neff: Those are very dangerous cases practice predominantly in Georgia, but in Georgia, if you can’t explain why you fell, you are very likely to lose on summary judgment.
So there has to be a clear causal connection between any purported breach of duty and the reason for the injuries. Yeah, that’s that case screening is hugely important. Damages are not enough in premises [00:17:00] cases. You’re going to need to navigate through that. And so case selection, it starts and then depo preparation, it escalates.
But you’re right, if the depo doesn’t go well, you have a lot of problems, particularly you might not be trying the case, or you may have a really difficult, if not impossible time saving your client’s credibility. And that’s worse than losing on summary judgment is losing a trial for a lot of reasons.
Elizabeth Larrick: Sure. Sure. Sure. So tell me, walk me through any kind of example. If you pick a case example where you took the case in, went to depo prep and work through some issues and had some really good testimony that made a good impact on the case. Can you give us an example?
Michael Neff: I can kind of talk about the process in our firm.
So we have four lawyers and we all have different job responsibilities or strengths. [00:18:00] And I am not the best person to do client prep in my firm. So Dwayne Adams is a partner and he is fantastic at it. And so is Susan Kramer. She’s a nurse lawyer with our firm. And Susan is like fanatically good at looking at all the medical details and going through the medical history and kind of spotting potential issues.
And Dwayne is like one of the best human beings I’ve ever met. Very patient, very poised, very very calming influence. So people feel safe with him. And we also do use a trial consultant in Atlanta who is also remarkably good at this. This is what I consider a soft skill, but an essential one. And my professional strength is cross [00:19:00] examination, which frequently is Being aggressive and sometimes being impatient and being persistent and being unrelenting and all of those things.
So that’s what I tend to do. So what we do in our firm is have a combination of Susan and Dwayne sit down and talk to the witness frequently in conjunction with a consultant. And one of the things that I think is helpful about working with a trial consultant. Is that they have fresh eyes, which is a benefit.
They don’t have tunnel vision. They can view the case from multiple perspectives, but they don’t have an emotional investment in the case, the way someone that has a contingency interest has, or someone that has a lot of professional, uh, pride. I want to beat this defense firm. And there’s a lot of emotions that go in to what we do.
And I find it really [00:20:00] helpful to be able to bring into our team somebody that doesn’t have the same stuff that we do, the same issues that we’re dealing with, the same pressures that we have for a lot of reasons. So I think working with a consultant is a really good thing to do in cases that financially warrant it.
And there’s a lot of pros and cons. but mostly pros. So those are some of the things that we do. I also find litigation a lot of times being a male dominated, traditionally male dominated work that a lot of male attorneys can benefit from getting a different perspective. professionally and personally, your jurors are going to be both.
And as much as I like to think I’m right all the time, I’m not right all the time. And as much as I like to think I get the pulse of everybody in [00:21:00] the courtroom, I don’t always do that. And so having, having some diversity, having some different perspective, having some different life experiences, And having different emotional baggage really helps.
So that’s how we do it. I’m not great at the details, but I am involved in the big picture.
Elizabeth Larrick: Gotcha. Okay. That makes sense. Well, tell me kind of, as we kind of wrap up here, any other kind of. input that you would have kind of on client prep or things that you have seen recently with the change of pandemic or anything like that that you would suggest to lawyers that would be listening here?
Michael Neff: Well, it’s interesting. Since COVID ended, we had one trial with a lot of COVID protections and the trial was a Spanish speaking individual. And one of the [00:22:00] things that it brings to mind having to work through interpreters is being aware of the need for more time and being extra efficient in reducing unnecessary questions because of the time lag.
So I think that’s something that is universal. And I think with a COVID protections and COVID protocols and people spacing out, it takes a lot longer to get through the process. So I think that’s the big deal. I think also people are more anxious. Since COVID, they’re more impatient since COVID. And as much as we want to be thorough, we also want to move through things as quickly as possible and get momentum building.[00:23:00]
And I think from a witness prep perspective, being efficient and helping them appreciate being efficient is really important. And from a lawyer perspective, even now more than ever, being efficient in how you present your case is hugely important.
Elizabeth Larrick: Absolutely. And that’s, I mean, that’s something we’ve had.
So folks on who’ve had trials who’ve just said the level of impatience in jurors is just through the roof. And they’re telling you about it, rolling eyes and do all kinds of stuff. So I appreciate you mentioning that.
Michael Neff: I think there’s a certain stress for a lot of people just being out in public. And the longer they’re out in public, the more stress they feel.
And even they’re not able to say, Hey, I’m stressed because I don’t really want to be here. If you can keep it moving, you alleviate that. And the less stressed they are, the better it is for us generally.
Elizabeth Larrick: Absolutely. [00:24:00] Awesome. Well, I know that in your quest for premises liability cases, you’ve written a book and you’re putting together a group.
So tell us a little bit about the book and we will put the link in the show notes to find it. And we’ll also do a link to the organization, but tell us a little bit about the book and the organization.
Michael Neff: Well, actually it’s been two books now. So trial guides published. Premises liability, a guide to success in about 2000 and I think 19.
And then during COVID, we published what is advanced premises liability, a guide through trial. So the first book is about premises cases A to Z, from case selection and intake up until trial, but not a lot. And advanced premises liability is mostly trial and really advanced deposition work. cross examination [00:25:00] skills and direct examination skills so that you’re able to convey the information that you need in order to prove your client’s case.
So they’re both available through trial guides. And that second book was a COVID project. And the other COVID projects that I had was the creation of NAPLA, which is the National Association of Premises Liability Attorneys. And it’s an organization that only focuses on premises liability, whether it’s falls from height or trips or slips or nursing homes.
Or unfortunately, inadequate security shootings and sexual assaults and things like that. NAPLA is on the web at premisesliability. org and we do monthly webinars and we are looking to do our first annual next year, June of 23 in [00:26:00] Chicago. So if anybody listening. To the podcast, the plaintiff’s lawyer wants to join a nap up, send us an email and we’ll be happy to give you the first year for free for listening to the podcast.
Elizabeth Larrick: Awesome. What’s the email address? We’ll make sure and we’ll put it in the show. Beth
Michael Neff: is our executive assistant. And so Beth at premisesliability. org and you can find out more about the website at premisesliability. org.
Elizabeth Larrick: Awesome. Well, thank you so much. I really appreciate that. I know our listeners will appreciate that too.
Thanks for joining us. I think can’t stress enough, right? That the preparation of the clients for deposition is really key in these cases for lots of reasons. And of course for trial. So thank you so much for joining us. I appreciate your time.
Michael Neff: Thank you, Elizabeth. I appreciate it. Well,
Elizabeth Larrick: I hope that you enjoyed this interview with Michael Neff and just know that we will put all of his contact information and that free opportunity to join his organizations [00:27:00] for premises liability.
In the show notes, if you found yourself counting how many times I said the word, absolutely, just know I was too. So we’ll get that corrected. Just remember, we’re all still in the new phases and new parts of. starting a podcast. So I appreciate your patience and just know that any review, any rating is always so helpful for the podcast.
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