My Point of View: When a Client Shares Their Damages
In this episode, I am sharing my point of view on a hotly debated topic in client preparation – when should a client share their damages, stories, examples, and feelings? Should they be in a deposition? Or should those be held until trial?
The old-school way of thinking would be to save it for trial. Many lawyers encourage clients to say as little as possible or to not offer any other information besides a yes or a no. For them, silence is a tactic, so they don’t explain anything.
And I truly believe the opposite of that. I think the deposition is the place to share and that we should prepare our clients to share in their depositions. The deposition is the biggest place for the client to play their role in the case and decisions are made based on things in depositions. That’s the way that it works so we should not ignore the opportunity it gives you.
In this episode, you will hear:
- It takes so much longer to get to trial (most cases never even get to trial).
- What happens when the deposition of the client goes into the file evaluation
- What happens in a deposition is different from what happens in a trial
- The black and white testimony in the deposition can’t be ignored.
- Getting a full uninterrupted opportunity during deposition
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Supporting Resources:
If you have a question or want to share your point of view, please email me: elizabeth@larricklawfirm.com
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Episode Transcript:
Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me, Elizabeth Larrick, your host.
This is a podcast designed for trial lawyers to give instruction, help, feedback, how to’s on connecting with jurors in the courtroom and connecting with their [00:01:00] clients. This episode, I am going to talk about my point of view on a hotly debated topic in a client preparation. And that would be when should a client share their damages, stories, examples, feelings?
Should it be in deposition? Or should it be held until trial? This topic comes up often for me after I’ve done a CLE discussion or when I’m working one on one with a lawyer for preparation. The old school way of thinking would be to save it for trial. Don’t share or don’t, if you do just share just a little.
Don’t share too much. We want to make sure that we save some things for trial. And this kind of mantra goes along with the advice that we see and hear on the internet and in YouTube videos by lawyers where we’re [00:02:00] encouraging people to say as little as possible. Don’t offer information. Say yes or no.
Silence is a tactic. Don’t explain anything. And I truly believe the opposite of that. I think that the deposition is the place to share and that we should prepare our clients to share in their depositions. And that point of view is really based on the realities that we face in our practice, but also what I believe is based on the fact that the deposition is the biggest place for the client to play their role in the case.
But let’s talk a little bit about our realities that we face, and we have faced for several years, right? This is not a pandemic problem. It’s a problem that’s been going on for many years, which is the courts are backlogged. There aren’t enough courts and enough judges, and so it takes much longer to get to trial.
Even if you want to say a year and a half, two years, three years, [00:03:00] and now with the pandemic, four to five years. And additionally, there are some, most, actually most cases, never even get to trial. So, that kind of piggybacks off my thought that if we’re going to limit a client for a deposition and encourage them to keep Right?
All those stories to themselves, trust us that we’re going to actually deliver them, but yet we know that it’s never going to trial. I think that’s doing a disservice to our clients. Also the reality that there’s generally a lot of time, meaning months and sometimes years between the deposition and trial, and in some cases they have a whole nother deposition because of the amount of time that’s passed.
And also the reality that the deposition of the client goes. Into the file evaluation. This is the place where they’re evaluating not only what your client is saying, but how they’re saying it. And of course we know they’re gonna [00:04:00] try and score points for their case in the client deposition. ’cause that’s what we do in our other depositions.
And I think this is especially important, the file evaluation where we have limited other places to find explanation for damages like the medical records, or as. We hear many times over the evaluations are strictly done on medical bills or medical coding like that. That’s just not really what we want our evaluations to be made on.
And I also understand the other point of view where there’s a mantra that we shouldn’t adhere to their system. I understand that. But at the same time, we know decisions are made based on things in depositions. That’s the way that it works. That’s where file evaluations come from. So. We shouldn’t ignore it.
That’s all I’m saying. It doesn’t hurt anything. We shouldn’t ignore it. And again, my point of view is based on the fact that I strongly believe that the deposition is the place for the client to step into their role [00:05:00] of the case and to be able to share. Also, trial is not going to be that platform for the client to be able to I mean, it’s, there’s objections, the jury’s there, the pressure is completely different between trial and deposition, and it’s much more choreographed.
How much your client is going to do in trial is vastly different than what they do in their deposition. You’ve got a whole list of witnesses and each one has a different role in our task and your client’s role is very different. Versus what happens in the deposition and if we’re taking away that opportunity, trial is not the opportunity for the client to go on and on and on and explain every single thing, right?
We have, we’re going to have other witnesses, we’re going to have other places, but we’re going to take away that opportunity if we limit them in their deposition. And here’s what I absolutely love about sharing at the deposition. And one [00:06:00] of the main things we’ve already covered, which is the amount of time now that we have in cases.
And that time is on your side because it’s gonna be able to give you more stories, more proof of the damages. So, sometimes cases don’t get filed right after they happen. Sometimes it’s a year or two years. Well, there’s two years of information. Well, then maybe it takes several months or even a year to get the deposition.
Well, that’s three years. Well, then we might have another year until trial, but that’s plenty of time to find stories, to find examples, to have new proof. There’s plenty of time. I also love sharing a deposition because it gives the insurance company, the decision makers, the defense lawyers, hard black and white testimony, right?
They love medical records. That’s the black and white testimony. And that’s what the depositions are as well. They can’t be ignored. I also love that it becomes the [00:07:00] backstop for mediation versus sometimes what we tend to do, which is, well, you’re going to hear at trial this person or this story. And it’s kind of like, well, why are you telling us now?
We have had to evaluate the file. That’s where mediation, because we’ve evaluated and are prepared to make an attempt at settlement. Here in Texas mediation, or at least in Travis County, is required, right? And they have to participate in good faith, right? There’s some teeth to that. But I love it as a backstop because I can basically go into mediation and say, you’ve already heard some good stuff.
Let me remind you what page in line it’s on, but let me also tell you we’ve also got this neighbor and this co worker, Who are going to come in and be able to reinforce all that stuff. So I’m just, it gives me a place to echo what’s already been said and again, they can’t ignore it, right? It’s in black and white.[00:08:00]
I also love that it shows the seriousness because the client is prepared. They’ve got the stories, they’ve got the examples, right? It’s not just this blanket statement where everything has changed. No, they’re going to have bricks on the wall. They’re going to have support for those things. And I think that when you take your preparation of your client’s series for deposition, people notice.
Ultimately, it reflects very positive on the client experience, right? Clients feel so much better, they’ve laid it all on the table, they’ve done their job. And again, I think it reflects positively in the defense evaluations when the client feels good. They’re having a good experience that’s going to reflect positively in how they deliver their testimony.
And I also truly believe that that testimony is unique. It’s going to be in their words, it’s going to be at a level [00:09:00] that’s different than how I’m going to deliver it as a lawyer. And I appreciate that because I know through my training and my thought process and how I do things that I I’m a lawyer and that doesn’t always connect with jurors, but clients are people and jurors make decisions in cases and thank goodness.
But I love the uniqueness and how they’re going to say it versus if I’m going to come in and try and say it. Ultimately, when it comes time for trial, after you’ve given thorough preparation, the client has put all their. Put their stories, put everything out there that they’re comfortable with, right? At the end of the day, we want to make sure our clients are comfortable sharing, they understand the process, and, and what the purpose is, right?
Purpose of deposition. But that helps when it comes time to move into trial preparation. It makes that transition much easier. Because they’ve [00:10:00] had that full opportunity uninterrupted. Trial has many interruptions, objections, problems, stop, go, stop, go, right? And it’s just not the platform for the client to sit and, like we say, talk about.
Talk the whole time and be heard. They’ve already had that opportunity. It’s a little relieving, right? Because that way it’s a lot less pressure, but it definitely helps when you’re making that transition for trial prep to be able to have again, that backstop, Hey, let’s reread your deposition. Look how awesome you did.
We’re going to use this story and this story and this story, but Hey, what’s the new stuff that’s happened? Don’t forget the trial. It’s not just you. We’ve got this witness and this other witness in this. And your friend, your coworker, and your wife or your spouse, you’re going to have all these other people that are going to help you do the heavy lifting.
So you don’t have to talk about all these stories, right? You’re only going to tackle a few of these things. Super helpful. I [00:11:00] still run into folks who have a little bit of a disagreement or have a lot of disagreement about this point of view of sharing at the deposition versus sharing at trial. I don’t think that anything is lost, and I truly believe that the risk is so low.
The risk at trial is so high. The pressure is completely different than in a deposition for you and for the client. So I truly believe that nothing is lost. If we equip and we prepare and we have our clients speak their, their truth about the impact to their lives, share those stories, use their unique perspective, right?
Their life experiences. It’s going to do nothing but boost the case. It’s not going to take anything away from you or from trial. Again, I’ll just explain. The basic reality is we’re going to have more time, okay? You’re going to have more time and you [00:12:00] can mull over that and fashion it into a case theme or you’re going to find more stuff and you’re going to have more people at trial to help testify to some of these damages and create a full picture for the jury.
All right. Well, thanks for tuning in to this episode. I hope that it was helpful. If you want to share your point of view, I would love an email and I’ll put my email address in the show notes because I’m always curious as how do people approach this subject and how they prepare their clients to share their damages and when you encourage your clients to do that.
All right. If you enjoy this podcast, please rate and review on your favorite platform. And until next time, thanks so much.