Times are Changing, Are you Ready?
Times have changed. And after the pandemic, things have shifted yet again. The question is, are you changing with the times? Are you preparing your clients in the best way to make it easy and simple for everyone involved?
There is currently a huge push into mediation, not trial. In fact, the whole thing about “saving on costs” has gone out the window. But what didn’t really shift is the trial lawyer’s mindset on the client’s day in court. Along with that shift was the “OG” style of preparing a client or a witness for a deposition. Depositions are where major decisions are being made so you have to work smarter around that.
Today, we are going to delve more into this huge shift in personal injury practice, particularly, from a trial-focused practice to a mediation-focused practice. You will also learn about the history of mediation, and how it crept into what we do as trial lawyers in the personal injury realm.
Whether you’re preparing for mediation or trial, it’s time to step up and make sure you’ve got all your bases covered.
In this episode, you will hear:
- The history of mediation practice
- The shift to mediation is one of the biggest hammers for trial lawyers.
- The OG style of deposition prep
- How to get through without damaging your case
- Giving a list of don’ts
- Depositions are the battleground.
- The importance of breaking up your prep and giving enough time to your clients
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Supporting Resources:
If you are curious you can learn more about court statistics at: https://bjs.ojp.gov/topics/courts
If you have a question or a suggestion for an episode, please email me: elizabeth@larricklawfirm.com
Episode 44: Using Deposition Objections as a Band-Aid
Episode Credits:
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Episode Transcript:
Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me your host, Elizabeth Larrick.
Thank you so much for tuning into this podcast. It’s dedicated to trial lawyers who are working in the personal injury field. And today we are going to look at a shift, I would [00:01:00] say in the personal injury practice. And the shift that I’m talking about is really from a trial focused practice into a mediation focused practice.
Now along with that shift was one of the things we’re going to really talk about is kind of the What I call the OG style of preparing a client or a witness for deposition. And there are so many facets of law, like we’re really focused in on the personal injury practice. You know, folks with mental injuries, physical injuries, that can be workers comp as well.
And it even factors in some employment law. But why I really want to focus in on that practice area today when we’re talking about is we’re going to take a little history lesson with kind of the history of mediation and how it kind of creeped into what we do as trial lawyers in the personal injury realm.
A lot of mediation practice really [00:02:00] came up back in the eighties. And when I started practicing over 10 years ago, this was still what I was taught to how to prepare people. And so that’s what I want to talk about today. This is how I learned originally how to prepare a client, but this style has gone back many, many years.
And it really started in the eighties. Okay. There were many labor strikes, labor relation issues and the rise of mediation really started around that time frame and expanded during the eighties and early nineties, and during that time, insurance companies really saw, oh gosh, this is hugely beneficial. We can get like all these claims done.
It’s extremely cost effective. We don’t have to go to court with all those expenses. and slowly this began to creep into. The practice of [00:03:00] personal injury and, and it’s mandatory in a lot of places. It’s here in Texas and many courts, it’s part of the rules of practice. You have to mediate your case, whether you like it or not.
And a lot of the places it’s the norm, it’s not necessarily mandatory, but generally it becomes this hoop that we have to jump through, which can be very frustrating because also over time, the mediations. They’re not fruitful. When I practiced, they were very frustrating to me because we would show up. In good faith, hoping to get something done and the mediator is not making anything new.
There’s no real attempt to actually get it settled. They don’t bring enough authority. They don’t have enough information. And so it’s very frustrating. All this to say in our history lesson here that most cases nowadays don’t even get to a jury trial. I mean, statistically speaking, it’s taking the whole swath of the U.
S. Really it’s, we’re talking about two to three to 4 percent of cases total on dockets [00:04:00] are actually getting to go to a jury trial. And that’s not to discourage anybody, don’t get me wrong, you can go to trial and I believe that that is one of the biggest hammers that we have and that we should really be focusing always with our eye on the prize of making sure that we’re preparing things to go to trial, if that is the proper case.
There was this just huge shift, right? This huge push into mediation and not trial and that’s how it’s been pitched. Oh, we’ll get this done early, you know, we’re gonna save on costs. And I think most people realize like the whole quote unquote save on costs, like that whole thing’s gone out the window. So many in house counsel and lots of different pay structures now that that’s really, they just write that in and they write it off like that.
on their taxes. So it’s really not even a factor anymore. So all that to say one of those things that didn’t really shift was a lot of trial lawyers mindset on the client’s day in court and the client [00:05:00] telling the jurors and having sympathetic jurors and, you know, just. Money’s just going to roll in and with that shift over into mediation, there were also a lot of campaigns and I’m kind of getting a little off track, but there was a lot of things that went into the public realm, into media and advertisements about the negative, uh, aspect of trial lawyers and all this creating this shift.
And so we really don’t have very many compassionate jurors. And again, we’ve had probably another shift with the pandemic. So we keep having these huge major shifts and are we as trial lawyers keeping up with that? So let’s talk a little bit about the OG style of deposition prep, which would always the rule number one, it was just tell the truth, which I think everybody understands watching TV movies.
You get it. You got to tell the truth, right? There’s an oath, right? We watch everybody get on law and order and tell the oath. Don’t share, don’t explain, it’s yes, [00:06:00] no, I don’t know, I don’t remember. Those are all quote unquote truthful answers. And at the same time, don’t fidget, be stoic, don’t show any emotion, always listen and pause before you answer.
So this is kind of what I would call like a list of don’ts. And along the way, maybe there’s some here read your discovery answers and here’s your medical records, you can come to the office and review these. But mainly a lot of the preparation conversations are just kind of a list of Don’ts. List of do’s.
And then just, Hey, where to go? Show up 30 minutes early. Wear business clothes. Don’t talk to anybody. And if you go through and YouTube deposition preparation or how to prepare for a deposition, you’ll get Almost five hundred thousand hits. So there is a lot of information out there and just clicking through some of the videos.
I always like to watch them to see, Hey, what is it that people could be out there listening to? And if you have a client who is [00:07:00] overwhelmed or who is really not sure, or has lots of questions, they’re totally going to pull out their smartphone and start trying to find answers. and videos are a really quick way to learn about it and it’s Especially if you don’t want to read or just listen to it.
So there’s a lot of things out there and most of them are, again, geared towards this, Hey, try to get through without damaging your case. Try not to show that you’re nervous. Yes or no are truthful answers. I don’t know is a truthful answer. And again, all 500, 000 videos are not all personal injury related.
There’s a lot of things about family law and business law. And that’s why I kind of segmented this out because in a business case or a contract dispute case, you’ve got a few other factors in mind. Personal injury cases, that’s why we’re kind of setting aside to talk about that for this particular episode.
What I want to do is just really ask, are giving a list of don’ts, does that really help a person give a [00:08:00] deposition? First, like we talked about, it’s a very outdated notion that A personal injury client should hold information back and wait to give it to a jury, right? Just based on the fact that we’re talking about two to 4%, maybe 5 percent of cases go into a jury trial.
Not to mention the backlog, the time to get there, right, is also a long time. And the reality of our practice is that, yeah, it’s two to four to five percent of cases. But the also reality is that we are working harder as a profession to get less money. It is a fact. When I started practice, I had a couple of bosses and, Oh, there’s used to get, just throw a demand letter out there and get three times medical, no problem.
And if you’ve had the same experience as me, throw a demand letter out and you get one, nothing back [00:09:00] 500. If you’re lucky, you know, insurance companies just don’t want to pay. There’s a lot of factors that go into that. But I think the truth and reality is like we. are working so much harder. This is why we have so many more cases.
And that makes us much more busier. We’re distracted. We’ve got a lot of things on our plate, which really can get in the way of being able to practice self discipline. And we need to be able to go to trial and be able to walk into mediation and say, Hey, you’ve had everything in your file for over a year and we did our job.
Where are you at? All in all, we should really just try to work smarter, right? Depositions are the battleground. So we really need to be better prepared to know, Hey, let me set this transcript up. Colleen, all of my. It’s a project that you’re [00:10:00] going to be working on. We’re going to be talking about projecting that to a client who is going to be using a different type of replacement service, a different type of replacement service.
But the reality, again, is that Depositions are where major decisions are being made. These transcripts, the impressions that are made on the defense counsel when they report back to their adjusters. And that’s the reality. And so let’s work smarter around that. Back in episode 44, we talked, I talked about objections as a band aid to PrEP.
Meaning, when those hard hitting questions come at deposition, we’re just throwing those objections out there hoping maybe the client catches that’s a signal or just trying to like, basically ward off, you know, these hard hitting [00:11:00] questions, hopefully that are not going to damage the case. But I also talked about a checklist for preparation.
I encourage you to go back and listen to that particular episode. But all in all, what I want to talk about here today is let’s just simplify this process for you and for the client. So many of the videos that I’ve watched in the videos that I watched to get ready for I’m talking to you today in this episode, there’s so much legal jargon and let’s remove that don’t telling a client.
Hey, if you walk in with notes, it’s discoverable what they don’t know what that means. It’s easier just to say they get a copy of it and hey, Some people may need notes. Some people may need to walk in with a timeline, and you know what? That’s okay. If they need a timeline, let them have a timeline. We talked about one of the things on our checklist was having a timeline in the file, and it can be just literally as simple as date, event, date, [00:12:00] event.
And, and I’m going to talk about this, uh, a little bit more in detail. I’m going to talk about the, um, the, uh, the, uh, the, the, the, the, the, the, the, it’s called the COPD. And it’s a, it’s a pretty weak term. was that the individual who fell had some pre existing conditions, some pretty heavy COPD conditions and we had a husband and a daughter.
And the daughter had been pretty well involved in going to doctor’s visits in 2018, a long time ago. So she sat down and thought, okay, and she said openly, Hey, I’m not going to remember all those dates or what the doctor said, or even in the hospital when she was there, like, I’m not going to remember all those things.
Give me the medical records. I’ll review them. And that’s one of those decisions we have to make as a lawyer. Do I want to give her those medical records to review? Does that open the door for defense counsel [00:13:00] to basically line by line in these medical records if she says she reviewed them? So we made the decision strategically, let’s just create a timeline and it, I’m telling you, it was so simple.
It’s just a word document. December 6th, follow up, December 10th, hospital admission, like really, really simple things so that it just jogged her memory enough. She walked in and used it, defense counsel got a copy. We’re not, there’s no secret sauce on the timeline, but it gave her just a little bit of confidence and also assurance, one, we listened to her.
She said she wasn’t a hundred percent sure on her memory, I could tell she wanted to do right, she wanted to do well in her deposition, she wanted to those medical records. strategically we decided that’s not good. Let’s just have a timeline made for her and have that, she can take that in there with her.
And that’s one of those things like, let’s just make it easier. But if we. [00:14:00] Keep with our legal jargon. Oh, I need you to read your interrogatories. And you said this in your request for admissions. Let’s just get out and put it in front of them. If that, if it is that important, right? And let’s make sure our discovery answers are correct.
That’s another thing we always try to make sure because we know they’re gonna ask questions about that. And that’s a good thing to review. But again, it’s if you throw something at them, let’s really try to explain like what’s the purpose of this. But also be asking, to make this simpler, like, what do they need?
What does the client really need to understand? And one of the things that I saw in these videos over and over again was just talking about logistics. Like, what Where to go, what to wear, how to sit, and all of those things can be sent in a letter, in an email, in a text, bundle that up. That’s the easy stuff.
Getting somebody there. We’re really just need to be talking about the rules of the deposition. How do we play this game? What are the rules? What are their rules? What are my rules? That’s what I want to know. What am I going to be asked? Why are we doing [00:15:00] this? What’s the reason for the deposition, right?
What are the weak points of the case that are going to be attack points? That’s really what we want to do is make sure we are simplifying and honing in. You don’t have a lot of time. You got a lot of cases, right? Clients may not give you a lot of time. So let’s make that time really easy. Fine tuned and full of the information that they really need to understand what they’re walking into.
And I wanna dig deeper into the rules of how to play right, the rules of the deposition to make it easier for you. We’ll do that in another episode, but again, just wanna look at, hey. Let’s set ourselves up a checklist. We talked about that in episode 44. Let’s set up a system where as soon as we schedule that deposition, we’ve got a letter that goes out, we’ve got multiple emails, and we even got text messages.
We need to be reminding people three or four times [00:16:00] about the logistics. That solves a lot of worry and concern on people. You can even tell people, Hey, we’re at a park. I mean. That’s just courteous. That’s easy. Anybody in your office can send you, can send that letter, that email out. But then also talk about the time factor.
So how do we make it easier on us? We talked about sending that letter out, covering the logistics. But if you have a lot of information to cover or you have something super heavy to cover, I say break it up. At least have a two part prep because you really want to be using your time wisely. You want to be really fruitful.
You want to see some results. You’ve got to give them information and let it marinate and then come back, test it out. Did their memory, did they get it? Do they not get it? Is there still some confusion? And I’m not talking about 30 minutes, one week. An [00:17:00] hour the next week, but giving enough time to see and marinate, Hey, is this stuff sticking?
Is it not sticking? But you really want to make sure that you’re giving them time with the information. I think when we shortchange our clients and we meet them the day before for 30 minutes, we see them the next morning for 30 minutes. They may have a legit problem. Major concern they may have come up with a question.
They really need you to answer and you need to take the time to think about, oh, Strategically, how should we answer this? How is this really going to impact? Because at times we think, oh, we’ll just fix, we can fix things in the deposition. No big deal. Some things are not fixable. I was talking to a lawyer the other day.
They talked about, well, we’re going to trial. Unfortunately, in the deposition, the client basically cut the knees out from underneath their lost wages claim because they told the defense lawyer they were going to retire at 62. So we lost five years [00:18:00] of lost wages. You know, there’s no coming back from that.
You can’t just get on the stand and say, well, you said in your deposition 62, but really, what did you mean? You can’t do that, right? So there are some things that cannot be fixed later. Let’s just make sure that we are leaving time for that because give clients some credit. They will accomplish some good stuff for you if you just give them some time.
All right, so I hope that this episode was helpful at the end of the day, we really need to be looking at, hey, times have changed. Things have shifted after pandemic. Things shifted again. Are we changing with the times? Are we preparing people the best way we can, making it easy and simple on us, setting them up for success and setting up our files for success, knowing that we know what’s on the grading sheet.
So let’s step up and make sure that we are covering all our bases and getting ready for mediation, getting ready for trial. All [00:19:00] right. Thank you so much for listening today. If you enjoyed the podcast, please leave a review or even click those little stars that will help other people find this podcast, or you can just share it.
I appreciate your time and until next time. Thank you.