Trial Preparation of the Client
The trial represents the end date, the final gauntlet. The case is coming to a close and, hopefully, everything will end well. However, it’s also a huge step for your client. In this episode, we discuss how to prepare your client for trial.
As a trial lawyer, you want to help your clients prepare for their testimony where they’ll get up on the stand and speak to the jury. You want to prepare them for cross-examination and make sure they understand the heart of a trial: sitting while they are waiting to testify (or after testifying) and listening to the things said about them and to the presentation of evidence by the opposing counsel.
Remember, the number one target of the opposing counsel is your client. You have to prepare your client for that.
In this episode, you will hear:
- Getting the client ready for their role in the deposition
- Grasping the physical and mental aspects of trial
- How to prepare for direct examination
- Things to think about before trial prep and as you get closer to trial
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Episode Transcript:
Getting your client ready for trial, the final gauntlet. How do you do that and also keep your sanity? Well, let’s tune in to learn a little more about trial preparation for your client.
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. This is Elizabeth Larrick and you’re listening to an [00:01:00] episode of Trial Lawyer Prep. This podcast is designed and created for trial lawyers working with difficult cases, problematic clients, and taking those difficult and problematic cases to trial.
The goal of this podcast is to help you connect with juries and clients in order to improve your abilities in the courtroom.
This episode we’ll be talking about how to prepare your client for trial. Trial represents the end date, the final gauntlet. It’s coming to a close and hopefully everything will end well, but it’s also a huge risk step for your client.
So how do we help them prepare for testimony? Getting up on the stand and talking to the jury and making sure they are able to speak to them, but also preparing them for a cross examination and what they will face when that happens. And also kind of the overall part of a trial where they’re waiting to testify or after they testify and they’re sitting having to listen to other [00:02:00] things that are being said about them and of course the opposing counsel’s presentation of evidence when it comes over to their side.
Now we always talk about in deposition preparation and in trial preparation that the number one target for the opposing counsel is always going to be your client. They’re kind of the easy target in the case and that’s generally the number one thing they do at trial and this is kind of amplified. But knowing that, how do we then prepare the client for that and then also more importantly looking at cross exam?
In our deposition preparation, we really look at taking three steps to correct the client’s mindset, getting them ready for their role in the deposition and in the case. We use different tools to refresh memory, organize things that they’re prepared for, the questions they’ll receive, and ultimately doing some role play to get them really to understand how everything will work and kind of given a dress rehearsal on that.
So we do all those things for trial as well, but we [00:03:00] also like to add in a few more steps to really grasp the physical and mental aspects of trial. The nerves and the idea of the risk. It’s all or nothing. Plus some of that. Going to the courthouse, sitting in the courtroom and having 12 people staring at you, judging you day in and day out, that’s a very taxing thing for a client.
It’s very unusual. Most people would run from that experience if given the choice. We also have the huge flip flop versus deposition where we as the lawyers get to go first and now there’s a lot more pressure on us and then naturally there’s a lot more pressure for those cross exam questions with the jury and the judge watching.
Trial preparation is a much heavier burden for you, the lawyer, than it would be deposition. Think about it. Deposition, we prepare our clients, we send them off into the world, and they do their thing, and we pretty much sit back. You know, there may be some [00:04:00] objections here and there, but really, it’s in a comforting conference room, there’s no judge there, there’s gonna be months more work to do, and other things that happen, so that’s kind of one piece of the puzzle at that time.
And then, of course, the converse of that in trial where you got to put your case on, you got to order of proof and opening and dealing with the judge, emotions and other things that are coming from the opposing counsel. And a big piece of trial prep for you and for the jury. For the client is getting that direct exam set up.
What are the things that the jury needs to hear from your client, and who are other witnesses that are coming and what are the things that they are gonna say that will echo what your client says? Or at least go along, or maybe they’ll be able to say things that your client can’t say. And of course, trial always comes with you.
orchestrating everything. You’ve got to think about all these balls in the air and how do you make sure that the client stays all in order while still handling all those things. And [00:05:00] we’ve got to also think about for trial preparation, exhibits and demonstratives and things that maybe the client has to do.
To talk about whether they like it or not. Maybe it’s medical records or maybe there’s some pictures or things that they need to talk about that nobody else can talk about. So there’s a lot more preparation for the lawyer involved before even sitting down with the client. One of the things that I like to do before leading up to deposition, but also I think it’s very important for leading up to trial, is.
Taking a piece of video from your client’s deposition and putting that video in front of the focus group. And really seeing what the focus group reaction is. Do they like this person? Is there credibility issues? What is it that they would need to hear from your client? And that’s really helpful, I believe, in giving you a lot of clarity as the lawyer.
As trial comes in, the pressure builds, and we have these sometimes unfounded worries that our client is rambling too much, or they won’t stay on question, and they’re just really [00:06:00] going to get destroyed on cross exam, and the jury’s just not going to like them, and in reality, that Maybe true, but maybe not.
Let’s use a focus group to really figure out are these fears real or not? Because at times, unfortunately, as travelers, we can waste a lot of energy on things that just aren’t true. You know, our perception can get kind of smeared because we live with the case for so long that our thoughts then become our reality.
And focus groups can sometimes bring us back to the truth, bring us back to what’s really going to happen at trial. What do we really need to be worried about now? Sometimes focus groups can confirm all those fears and then you might have a different problem on your hands. If you know that the focus groups telling you your client is not believable and has a huge credibility issue.
And so we look at trial preparation and the client, you have to get your direct exam topics ready. You’ve got to do a lot of preparation, fine tooth combing that [00:07:00] client deposition and cross examine topics, whether they’re in the deposition or maybe they’ve been telling you about the whole time the insurance gesture tells you what the problem is.
Generally, like I said, the problems are going to be And so, we want to take time to do our preparation, which is, like I said, much more heavy job for trial. And then the really nice thing, I think, about trial preparation with a client is that can actually happen at least a week, two weeks out before you have the trial.
Because, again, we want Client’s always available in there. As you get closer to trial, you’re really, bullets start flying. Maybe you get extra motions that you have to deal with, plus turning in deadlines, talking to experts and getting those people ready, coordinating other little smaller pieces. Maybe take a visit to the courthouse to make sure you got the technology correct.
Sometimes those fine tune last minute motions that happened in the last week and trying to squeeze in that client preparation can make it even more stressful. So kind of back it out. [00:08:00] The client is there. The information you need to get them ready can be done just a little bit earlier. And you know, we sit down with our client just like we do for deposition, but with a little bit different eye because again, They’re really going to be leaning on you for more information about what is it you’re going to ask and what are we going to do.
And when I do trial preparation with a client, I spend a lot of time going over what they should expect about the courtroom, what they should expect about the schedule. What they can expect will happen at least every day, day one, I can at least tell them what to expect and what the schedule is going to be like and when they’re going to be breaks and where they can expect the jury to be sitting at and where they’re going to be sitting because I know from my experience, trial changes so quickly.
so quickly and as the lawyer, I got to be on my toes. I got to be ready for anything to happen because I know there’s work that I have to do along the way and there’s tweaks that I have to make along the way at trial. I can’t necessarily be giving a lot of attention to managing kind of what my [00:09:00] client is going through, fears or concerns.
Maybe they’ve got all these questions now because they get to hear all the motions and all this stuff that the defense says, but it doesn’t make a lot of sense to them because they’re not lawyers, which you know, I don’t. Think that they need to, but that’s why I spent so much time giving them a really good visual picture of at least some kind of certainty about their schedule and where they’re going to sit and what their job is.
And I always say everybody who walks into trial is on our team and everybody has a different role. And it’s so important that when we get in there and bolts are flying and things are changing and schedules messing up, we all still know where our role is and what our job is. And we can all rely on that.
And because, you know, you got to delegate things to make sure everything gets done and happens. One of those things that I think is super important is to give the client somebody who they can always go to and ask questions. I don’t suggest that be your lead lawyer. Sometimes even the second chair. But some of it, they can always go.
If they have questions, they go to [00:10:00] that person first and they know that that person is going to be able to answer those questions or find answers for them because they’re going to have questions. It just always happens. The other thing that we always do with client prep is their job is they’ve got to read back for the deposition, which I know it can be really, really painful.
And some people have like three volumes of things to get through. But what I remind them is this is really the best way for you to understand what you’re going to be asked on cross exam. Because people always think, Oh, this is so unknown and I don’t know what they’re going to ask me. And trust me, it’s already in the deposition.
They’ve already ferreted out the topics that they’re going to talk to you about. And maybe there’s a few new things that have popped up since then, or maybe things in your background they’re going to ask you about. All those things would be things that we would be able to point out as trial lawyers.
Hey, Here are these things they’re going to ask you about. Let’s practice some of these questions that we know they’re going to ask you. And so we really want to sit down and walk through what are the things that are going to be on the direct topic list? What are things going to be in the cross exam topic list?
Taking those one at a time to talk to [00:11:00] them about it, to listen, to ask questions, and using some of our tools to help organize our facts. You’ve done that job during deposition prep, you just get to bring that preparation right back out, right? Use those tools, get those same things back up there in front of the client and creating new ones, depending on how much time has passed between deposition and trial.
And again, if you’ve done the depo prep with the extensive time and asking questions and really understanding, they’re tracking with you. It’s just going to be a little bit different ball game. prepare for me to talk to you first? And how do you like to answer questions? And what are things that really make you nervous?
There’s gonna be 12 people staring at you. Here’s the piece of paper that you’re gonna have to look at and answer questions. And how do you do that? You know, and how do you not feel nervous about staring at a piece of paper and trying to find an answer? And movies and TV are really where clients get their ideas about trial.
And as we all know, Those are not really accurate. I mean, they’re way more exciting on TV than they are in reality at [00:12:00] times because the TV and movies doesn’t show you hours of cross exam or hours of direct testimony just going through medical records or going through some scientific journals to describe how the scientific thing and chemicals reacted.
And that’s important for trial. I mean, as trial lawyers, we know we can’t do that. Skip any steps. We got to get all A to B and be able to get those questions answered for the jury, but it’s sometimes just not as glamorous. And that’s also sometimes what you’ve got to tell the client too. You won’t be first, so you’ll be able to have the ability to watch everybody and watch how it works.
Your lawyer goes first. I go first. They go second. Asking questions and the judge is there to be the regulator. And. How does that really work and what does it look like? Well, don’t worry, you’ll have the ability to watch and observe before it’s your chance to get up there. We talked about the direct exam topic lists and exam, cross exam topics and using tools to help organize their deposition answers to make sure they’re [00:13:00] still queuing up with the same stuff and how that feels.
I always love to role play getting that deposition transcript down. If you say something different, how is that going to be used by the opposing party? counsel and how does that work with a deposition transcript and taking it out, reading it. Did you say this? And why are you saying something different now?
Having that feeling of, Whoa, you caught me like, Oh, I’m telling a lie. Maybe you’re not really telling a lie. You’re probably just using some different words, but that’s the one thing that is the ultimate cross exam is trying to catch somebody in a lie or changing their answers. That’s a really fearful thing that clients have, too, is that they’re going to somehow change their answers up.
That’s why we really try to study that deposition to make sure that they’re going to queue it up, those same answers they had before, and feeling comfortable in knowing that that’s still the truth. That’s really what’s going to protect them. The other part of trial prep is how do we keep the jury engaged?
At times it can feel pretty monotonous and just question and answer and are they paying attention? Sometimes [00:14:00] they fall asleep, it happens to all of us, so how do you be engaging? One thing I always like to encourage people when they’re putting together direct exam is can you make it like a conversation?
Does it have to be so wordy? Can you really remove yourself from the conversation? I think at times we get kind of off balance thinking that we need to have some super wordy questions or super long questions. And I just sometimes really just want to say, can you just make it a conversation? Cause it’s like an interview.
I mean, the jurors are getting to know your client and you’re basically interviewing them. And some of the best interviewees use really simple questions. Because you really want the client to be talking, you don’t want to be talking. You do a lot of talking in trial, let the client talk. And that’s what the jury really wants to hear, is them talking, not you talking.
And not you leading the client with questions. One of the things that in future episodes that we will probably talk about more in depth is to be engaging with your client. How do you craft direct exam [00:15:00] questions that reveal to the jury the client’s story and doing that in a way where it feels like a conversation versus feeling like a script.
Other episodes we’re going to talk about. What kind of demonstratives are great to use with clients on the stand? And can we work together to create some kind of demonstrative together on the stand? What is the purpose of the demonstrative? A lot of times I like to create a demonstrative with the client because it’s not going to be an exhibit, but it’s going to be something that we as a trial team can use later in closing or maybe we can use later with a defense witness.
So I always love to do something interactive with the clown on the stand. The other thing we’ll talk about is how do we role play for direct exam and how do we role play cross exam? In other episodes, we’ll also talk about what are some of the tips and tools to help the client get through trial. We talked about that [00:16:00] physical and mental drain that they’ll experience.
What are some things that we can really help assign their role and really have them feel a big part of the team, but also knowing what. It’ll feel like so that mentally they’ll be prepared to be able to sit there. Uh, have interviews with lawyers and talk about these specific topics and maybe how they like to craft their direct exam or how they like to look at their trial and set up when the client will I know that sometimes that’s the biggest question I always get from lawyers is when do I put my client on the stand?
And there’s a lot of factors that go into that. That’s kind of a 30, 000 foot question because you have to think about it from the jurors perspective at times. And I even like to back it up and just say, Hey, well, let’s look at your jury instructions. And what’s question number one? Because most of the time, question number one, May or may not involve the [00:17:00] client.
If it doesn’t involve the client, you probably ought to put some other people on in order for the jury to answer question number one the way you want it, and then put on your client so that they’ll have some information to answer question number two, which is generally the how much kind of question.
But we’ll talk about that. We’ll take an episode and I think that’s probably really helpful to hear from other lawyers about how they approach that question and how they prepare their clients and maybe there’s some tips or tricks that they can help us with as well. We will take a much more in depth look at trial preparation in future episodes, but just a very quick recap about for trial preparation of the client.
We really are looking more about trial preparation for the lawyer and for you and what are the steps that you should take before you get the client in there and what are the things you should look at. What are other witnesses looking at the deposition? How to walk through that deposition, uh, and spot those [00:18:00] cross exam topics and then creating some good role play for that client to feel that cross exam and know how that dress rehearsal is going to go.
Okay. You’re welcome. And we’ll talk about how to ease that burden. What are some things that you can do early on before trial preparation really gets going? And what are some key things to look at and think about as you’re getting ready for preparation? For example, one of the things I like to do very early is, and when I say early, I’m talking like 60 days out.
Pick out that client transcript and read through it. Think about it in the sense of, what are things in here that need to be included in a motion in Lemony? Because there may be some unique things that are in the deposition transcript that need to be limited by a motion in Lemony and just not even talked about.
They’re not even related. It’s prejudicial. And at times, we can get caught up on a lot of other things. Other issues when we think about motions in limine and not really fine tuning what it is, we need to put on the no list [00:19:00] as I like to say for our clients cross exam or even direct. And that’s just one of those things.
Smaller things you can do really early on. You can repair a really nice motion in Lemony and be ready versus scraping by at the last minute thinking, Oh gosh, we really shouldn’t be talking to the client about six Porsches or four Ferraris. That doesn’t really have anything to do with being injured in a car crash.
It doesn’t. And how do we craft that motion in Lemony? So we’ll look at some of those tactics and things for you to do to prepare better and then really how do we spend our quality time with our client and making sure that they feel prepared for the experience of trial and then also prepared to take the stand.
I’m super excited to delve into this topic later on and more depth and into really nitty gritty details. But as far as this episode goes, I really appreciate your time and attention. As you know, this show is new and shiny and any and all support is greatly appreciated. If you haven’t already done so, please subscribe on the Apple podcast, Google podcasts, and [00:20:00] Spotify or wherever you listen.
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