Spotting Red Flags in Client Deposition Preparation
Have you ever experienced having a client who emotionally fell apart in a deposition or trial? You’ve already had a preparation plan, walked them through it, and organized everything, then all of a sudden, the plan goes out of the window. And when they’re testifying to things that you’ve never heard before, it’s certainly not a good feeling.
At times, there are clients that are challenging to prepare and there are different reasons for this. In today’s episode, how to spot some red flags before clients get into the deposition or go into trial to give testimony and how to deal with those.
As a lawyer, you need to figure out ways to do this better. Many times, we can spot some of these red flags, even before we’re going to sit down and do deposition prep or trial prep. These are things such as when clients show a lack of interest in the case or they’re providing inconsistent stories. Maybe their effort has waned over time, or they just don’t follow directions, or they’re simply refusing to answer any questions. And even sometimes, too, there are people who just refuse to even show up for preparation.
Therefore, you need to dig a little deeper to understand and reveal some of the reasons these people are having these kinds of behavior. As lawyers, we want to make sure we have clients that are going to not only put effort into the case but also effort into themselves.
In this episode, you will hear:
Moving from Plan A to Plan B Step 1: Educating Step 2: Testing Step 3: Deciding The importance of spotting red flags early on Getting somebody else to roleplay with your client Subscribe and Review
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Episode Transcript
Welcome to a new episode of Trial Lawyer Prep. I’m Elizabeth Larrick, your host, and we’ve designed this podcast to craft how to and tips to help you connect with your clients and jurors.
And today’s episode, we are going to [00:01:00] tackle what I would call a difficult subject, facing clients that are challenging to prepare and really trying to help Understand and spot some red flags before our clients get into the deposition or go into trial to give testimony. I think we’ve all had the experience of having a client who fell apart in a deposition or trial.
And when I say fell apart, it could be somebody who basically just falls apart emotionally or just falls apart in the sense of, Hey, we had a preparation plan. We walked through this, we organized everything. And then all of a sudden the plan goes out the window and they’re Testifying to things that you have never heard before.
It is not a good feeling. And as always, you know, lawyers, we always try to figure out ways. How do we do this better? What did I do wrong? And so this is an episode really dedicated to, how do we spot some of these red flags in our preparation? And. Many times we can [00:02:00] spot some of these red flags even before we’re going to sit down and do deposition prep or trial prep.
And red flags are things like the client has a lack of interest in the case or they’re providing inconsistent stories. Maybe their effort has waned over time. Maybe they just don’t follow directions. Could be possibly they’re just refusing to answer any questions. And sometimes we have people who just refuse to even show up for preparation.
And we want to be able to dig a little deeper to understand and reveal some of the reasons why these folks are having this behavior. And sometimes it’s that there is just a lack of trust. Sometimes there’s just a lack of understanding about what’s going on. Sometimes they just have a desire to settle, but they just couldn’t tell you.
And sometimes it just is a case that just needs to be settled. And so my story about this is I actually went to assist an attorney for trial. They had a client that was [00:03:00] getting ready to go testify. There weren’t a lot of witnesses in the trial, so this particular client’s testimony was going to be really important about not only just how the injury happened, how the event happened, but also, you know, the extent of the injuries and the harms.
The event had happened Five, even six years ago. So a lot of time had passed. And again, this is post pandemic. So, you know, we’re all facing this extra delay that we didn’t ask for, but that’s something here and there. So we start to prepare and I see some of these red flags popping up. And I, as always try to have a plan a and a plan B and.
You know, work through my planning, trying to understand a little more about what’s happening with the client, what’s been going on, what maybe they’ve been facing challenges in their personal life. And that really didn’t seem to strike [00:04:00] any differences. So I tried plan B and we got a little more direct about.
Some of the answers, inconsistent answers, they were giving me some of the, a lot of what I would call maybe attitude, maybe, you know, big red flags as far as lack of trust and inconsistent stories. When I tried to have a very direct approach about certain things and had medical records to show, Hey, here’s what happened.
Do you mind just explain it to me again, always being open to a different explanation. And ultimately. The situation or the preparation just ended because he absolutely did not want to move forward. He actually had an outburst. I’ve never had this happen. I mean, it just got to the point where he basically had an outburst and came after me and said that basically all these things were my fault.
And I was very accusatory, which at the time was just like, okay, we need to leave the [00:05:00] room. You know, we need to, you know, remove this energy from the room. And also we’re, can’t really, I don’t really have anything else to say at this point. You’re very upset. And when people are that upset about something, let’s just diffuse the situation, remove ourselves from the room, whatever I can do.
You know, never intended to make somebody so upset the way that he was, but add that experience really made me sit back and understand, okay, this is not me. I understand that he’s directing his anger at me, but what is it that’s really going on? And ultimately in working with the lawyer who knew this person much, much longer than I did like to say, Hey, you actually have to make a decision here.
This is the person that you’re going to put on the sand. They’re probably not going to cooperate very much with answering questions, and we’re not really sure what answers he’s going to give. So you need to decide what do you think the jury is going to do with testimony like this? And is this something you want to move forward with?
Or is it [00:06:00] something that you’ve thought about? Maybe you should settle. I can’t make that decision for you. I’m just looking at the couple of days or a couple of hours we just spent with this person. And my job is to try to help understand, Hey, what’s really going on here. This isn’t personal. This is something else that’s going on.
And you have to make a decision about trial. I mean, it’s a tactical decision. You have talked to the client about it. We tried to talk in two different fashions, plan a and plan B and neither one of them worked. But having that experience really made me sit down and think, okay, we may not experience this level of someone having an outburst status and that kind of, you may not experience that, but there were definitely little bitty cues along the way that kind of made my spidey sense go up.
I wonder How long this behavior has been going on. And sometimes this behavior happens very early. And as lawyers, especially in the line of work [00:07:00] that we do, we want to make sure that we have clients that are going to put effort into the case, but also effort into themselves that are going to go to doctor’s appointments and they want to get better.
And, you know, they’re not just going to skip appointments and not return phone calls. And a lot of that time, we can see that very early on and make the decision about moving forward with the case. However, at times, that behavior may not crop up until later. And again, we’re all facing this dilemma of having cases that are going much longer than ever anticipated because of the backlog of courts.
However, let’s So let’s talk about some of these red flags that you may be seeing. Let’s talk about how to dig a little deeper, not just automatically putting somebody in a box and labeling them. I know some folks are challenging to prepare on lots of different levels. But. This particular episode is really looking at people who maybe [00:08:00] have a lack of trust.
They’ve got a lack of confidence in their case. They’re very worried about being rejected by the court. jury, folks that are just upset about not being more involved and people who just have a general lack of education and just fearful. And then there are folks that just like, they don’t want to go to trial.
I mean, there are lots of people in this world that just don’t want to go to trial. It’s, it is a terrifying experience or thought that they would be up sitting on the stand and having Basically 12 people judge them, not what they want to do, spend their time and that’s okay. I think people have a hard time expressing that and that’s where we want to dig a little deeper and have that plan A and plan B and give people that opportunity and that safe place to express themselves without feeling like they’re being cornered into going to trial.
I know we as lawyers get really excited about going and sometimes when we get excited and we’ve got a really great liability [00:09:00] case, sometimes we kind of get lost. lose the clients in the shuffle. And so for this particular instance I would say when you’re trying to spot a red flag, you’re looking at clients who, and again, we’re talking about at this point, you’re preparing for deposition and you’re sitting down with them to start talking to them about what’s going to happen, what they can expect, start maybe asking some questions and getting feedback on where they’re at now, start to organize some of their thoughts and expressions.
And what you may find is that you have a client who keeps repeating the same phrase or the same things to questions. A good example of that is, tell me how your, how’s your injury doing? Maybe it’s your back or your foot or it’s just, it’s a pain. All right. Well, help me understand that. Tell me, you know, how does that translate into regular day?
Can [00:10:00] you put a shoe on? Can you walk on it? Do you have to put it up? And it’s that you’re just digging in and you may just get, A client that just repeats the same phrase over and over again. And what I found is we’ll talk about a plan A and a plan B. Right now we’re talking about how to spot it. What are some things that like, Oh, your spotty sense should be going up?
Well, I’m on a client that repeats that same phrase over and over again. When you’re asking a question, they have a failure to follow directions. Sometimes. It can be something simple, like not showing up on time. Sometimes there’s traffic. Don’t get me wrong, but think about this when all these things accumulate.
And this is what happened to me in my situation where she’s like, Oh, look at all these little things that. If I had looked at them individually, I’d say, Oh, you’re just being overly critical, but lining them all out, like, Oh, we should have seen this a little earlier, which is okay. [00:11:00] We always want to give people the benefit of the doubt.
You have a client that is just going to blame the doctor. Or blame the hospital, or blame lawyers, or blame their spouse for not getting better, for not being able to do something different. Or you have a client who treats people in your office differently than they treat you. For example, when I went in to assist this other lawyer to prepare a client for trial, I had very different treatment compared to the lawyer.
And that automatically got my Spidey sense up and just looking and watching that dynamic and being like, okay, well, I’m going to put a little pin in that. And maybe this is normal. Maybe it’s not. We’ll revisit it later. What about our clients that sometimes just refuse to respond to questions? People that just really shut down and they just don’t want to talk.
Clients that can’t give really any facts or even possibly refuse to give facts when it’s on either liability or damages. Clients who like to [00:12:00] blame things on life or excuses for not giving attention to preparing or for doing their homework. Clients who really can’t answer questions about do they want to settle or do they not want to settle.
Obviously, we’re talking about somebody who’s really closed off and they could have just a lack of interest in the case. It kind of comes down to, they have a lack of interest, like maybe they’re just over it, they’re done, they’re not expressing to you they want to settle, they don’t really have a desire to move forward, like they’re done, lack of trust in the lawyer, right, they just don’t, ultimately don’t trust the lawyer, it may not be anything personal, it may just be something that happened later, or just lawyers in general, and like we talked about earlier, a complete lack of confidence in the case.
So all these little things all add up to different kind of red flags and sometimes it’s just a, like I said, a lack of education. Well, that’s easy. You know, you just help them and educate them. Maybe sometimes that solves the problem and the light turns on. Sometimes [00:13:00] it’s a little more. So what I like to do is have a plan A, which plan A is just what we would normally do with deposition preparation or trial preparation, right?
Just start asking questions, talk about what they can expect. And it’s when some of these red flags start to add up that then I have, Oh, okay, we might need to move into plan B, which is like a much more direct question, but most of them, I always just want to, when I have an accumulation of those red flags, I just.
Just take step and except to ask a little extra questions, right? General, open ended questions. They can take it wherever they want to take it. And if I want to be more direct, right? There’s plan B just be more direct about it. And when I say being direct, that just means ask a much more pointed question about it.
Meaning for example, the client who likes to repeat the same thing over and over again about like their damages, well I’m just in pain. Okay. Can you just [00:14:00] describe it for me? Well, I just told you, I’m in pain. Okay. Well, let’s take it on a scale of one to 10, right? How would you, if we’re sitting here right now, one to 10.
And so you give them a couple of extra chances to describe it for you. Sometimes it doesn’t work. So then we take our backup, which is education. Maybe they just have a lack of education. Why would I be asking you these questions about your back and being in pain? Well, the jury actually has to answer questions about pain.
There’s really a question here that says physical pain. And so that information for that blank actually comes directly from you. Yes, there’s mention in the medical records. However, we’re going to ask you questions on the stand about that particularly. Or in your deposition, it’s the same thing. Your testimony needs to help answer these questions.
Sometimes that helps. Like, oh, okay, you’re not just digging in on me. You’re just trying to, yeah, okay, here we go. Education, great. Now we’re on our way. If it doesn’t help, Doesn’t look like education, right? You’ve got somebody with just lack of [00:15:00] trust or lack of interest. Generally, I moved to step number two, which is testing it.
And that is where we do our role play and where I’ll, I play the defense and we ask some questions just to see, okay, we’ve tried to address it in soft way, in a direct way. And then now we’re going to look and see if we can test it. See, okay. Maybe if we test it, we role play it, make it a little bit more serious.
Maybe the, if he, he or she understands the actual questions that they’re going to get, maybe that will help the light come on. Like, Oh, okay. What we’re doing here is to help you, or just trying to get you prepared. And then you basically go to step number three, is after you finished role playing, then you got to decide, okay, well, is this, workable to a jury or is it not workable?
And you know that, you know, you’ve been around jurors enough and if you haven’t, then you’ve been around enough focus groups. Then if you haven’t, let’s run some focus groups. [00:16:00] And sometimes that’s what you have to do is just take a step back. You need to get a little extra time before trial, before deposition and run some focus groups, run some of these answers, take a zoom video.
of your client answering very basic questions and see what they say. I think in most cases jurors have a hard time understanding somebody else’s physical ailments if they have a real limited answer in pain. I can’t do things. It doesn’t help anyone. I can’t get a visual on that. I don’t know. That’s really indescript for me.
So I always just try to think of, well, juror has to decide and put something in a blank. They may not put anything in a blank, but again, that’s that step three of deciding and you can make a decision. You can get extra time, go to a focus group. You can ask other lawyers. We’ve had it. But the hope is that if [00:17:00] you’re able to spot the red flags early enough, you can have the discussion.
early with the client and not necessarily right on the doorstep of trial or right on the doorstep of deposition. And if you can fix it, like I said, lack of education. Some people are just fearful. Some people have a lack of trust. You may or may not be able to ever get over that. And it’s like with most things in life, it’s not normally personal.
Sometimes there’s something that was there long before you had this person as a client, you’ve done your best, but sometimes it’s just. And that’s something you can’t overcome. Sometimes it’s just a lack of involvement. They want to be more involved, but they’re not really sure how. And again, that’s an education piece as well.
And then also that kind of lack of confidence in the case. And sometimes that is just again, educating them on their case. And if they’re that fearful, it’s just this lack of, this fear 12 people deciding the case. [00:18:00] And, um, Ultimately, these red flags are to help you maybe before you get to deposition, before you’ve got somebody who you’re about, maybe you’re about to file and you’re looking at these things.
And it’s okay to ask clients ahead of time before we start filing it, before you take on the case, you know, let’s just set expectations and talk about these things. And a lot of times, like I said, it just happens over time and it’s not anything that you could have seen happen. It becomes very apparent when you sit down in front of them and start talking to them.
And that’s why I wanted to share my experience with you guys to say, Hey, there are ways to spot the red flags and role playing can’t stress that enough. Getting somebody else to role play with your client will significantly help you be able to see this because we get so deep in our cases that we don’t even see it.
We don’t even, doesn’t even, [00:19:00] Oh, there it is. It takes sometimes another person coming in and doing the role play and you just watching and listening and saying, Whoa, hold on. Wow. We have a problem here. And with the lawyer that asked me to come help, the reason for this whole episode, he knew there was a struggle to express himself.
He knew that there was a trouble there. He just didn’t believe or didn’t know. Like, where that actually was stemming from, and we learned in talking with them and sitting with them and seeing all these things and like adding all these things up, like, okay, this person just does not want to go to trial.
Like they don’t like they’re, they absolutely possibly don’t. Please don’t make them go. And if you do, please test it before you go so you can make sure and understand. What’s going to happen. All right. So just a really quick recap. We all have challenging [00:20:00] clients at times to prepare. There’s lots of different reasons why people may be challenged to set aside time to prepare for deposition.
This particular episode is about clients that. have lost interest in the case. They’ve lost basically lots of inconsistent stories, lost lack of just effort all overall. Not necessarily like fearful of it, but just won’t give you any information and shut down. A lot of the red flags are rushing down. How do we, if you see a couple of the red flags, how do we deal with it?
Well, let’s just dig a little deeper, right? Plan A, Have a soft approach, ask questions, if that doesn’t work, plan B, follow up with more direct questions. Next step, test it. Use another lawyer to come in and role play with the client, actual questions they’re going to face. And then ultimately three, you have to decide.
And you, in that decision making, you know, gather, phone a friend, [00:21:00] talk to other lawyers, and worst case scenario, use a focus group and use some Zoom footage of your client to see how is a jury going to react to this. All right. I hope that this episode was helpful. If you have any questions or follow up, please don’t hesitate to email me.
My email is elizabeth@larricklawfirm.com. If you found it helpful, please leave me a review or do the five star thing on your favorite podcast app. And until next time. Thank you.