Using Documents in Client Deposition Preparation: How to Decide
Every witness gets asked about what documents they used to prepare. As lawyers, we have to be on the front end of things before meeting the client. This week, we are going to continue our two-part series on how to decide what documents to use in deposition prep.
Whether it’s personal injury, an employment issue, or a business dispute, cases involve dealing with a ton of documents. Depending on the type of case, think about tens and thousands of medical records, employment files, or email communications.
As a lawyer, all this can get super overwhelming. Therefore, having a good organization of these documents is definitely a must. The sooner you can start organizing cases, the better. You’re able to better prepare yourself for events such as hearings, depositions, and mediation.
In this episode, you will hear:
- Two sets of documents you need to prepare
- Creating a list of “must” documents
- The importance of preparing visuals
- Documents in the case that are already discoverable
- Asking how a document can help or hurt
- Looking at the 30,000-foot view of helping them
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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. Dedicated trial lawyers trying to prepare better witnesses for better results in the courtroom. We are going [00:01:00] to continue our two part series on documents to use in deposition prep. We took a small break last episode to celebrate 52 episodes, but here we are now at 53.
So let’s keep going with our two part series. If you’ll remember, we talked about in episode 50, using documents in preparation. What to know, we really looked at the rules, right? So a lot of times we forget about the rules that may apply when it comes to documents that are used in preparation. We looked at the Texas rules, right?
So attorney client privilege and also work product privilege. I encourage you to check your jurisdiction for that because there are lots of ways that’s interpreted, but if you’re in Texas, just know it is really broad. That’s great. And what we want to talk about in this episode, though, is [00:02:00] how to decide what documents to use.
Every witness gets asked the question, what documents did you use to prepare? And so of course that takes us as lawyers. To the front end of things of how we decide those documents, like what we do to prepare before we have that client walk in the room or turn on that zoom and start preparing. And in looking at deciding documents, we’ve got one vein of discoverable things that are already in discovery, discoverable.
And two, also thinking about this in the sense of what is our clients or witnesses point of view? Will these documents help them? Because our cases contain a lot of documents. If you think about personal injury cases, especially med mal cases, we’ve got thousands and thousands and thousands of medical records, right?
Look at all these injuries. Look at these surgeries. If we’ve got an employment case, we’re talking about thousands of pages of employment files, email communication. And plus there’s a lot of. [00:03:00] documentation that clients never even seen when it comes to their employment files. There’s a lot there. And then for business disputes, right?
You’ve got this same issue going on. There’s probably multiple players with multiple types of communications and documents, and it just can get overwhelming. As a lawyer, it can get overwhelming, right? Having a good organization of these documents. The sooner you can start organizing cases, the better, because you will find your ability to prepare yourself for events in the case, hearings, depositions, mediation will go a long way.
exponentially more efficient, but much more time efficient as well. So I do encourage you if you don’t have an organizational tool for the documents themselves, I strongly urge you to do that. Maybe we’ll find somebody who can come onto the podcast and talk to us about that, [00:04:00] but really coming back to what’s a good rule of thumb, just generally for looking at these documents, how to side one, you got to review them, which is why an organizational tool helps.
And also we need to be looking at this through the lens of, okay, if they look at this, if our witnesses, our clients look at this, they’re going to have to answer questions about it. All right. So where does that lead? That means, well, we could pick and choose. Right? But by picking and choosing, are we going to be sending a secret message to the other side about our view of things?
If we pick too many, are we going to overwhelm our witnesses, our clients, and basically just provide them an even harder task at deposition when they get asked this question? Or do we just give them too little, give them nothing? I know some lawyers just give them nothing. And are we leaving them vulnerable then to be in a panic and create answers?
And I know that can sometimes be a really good trick to use. You got maybe a one [00:05:00] page medical record that says, Hey, on this day, two years ago, your pain was at a level one, but then three months later, now all of a sudden you need to have surgery. So what’s true, what’s not true. And as a human, and when your face with this black and white.
Document and it’s a doctor, right? It’s a medical record, right? You put in a corner and they love to force people to say, well, who’s telling the truth and who’s lying and what changed. Try them all in this dynamics. And it’s like, Oh, it can be a little bit of a panic and we don’t want to put people in that position.
And same thing can be true with a, with an email. Hey, on this day, you said X is you said that you would, uh, Never go to litigation and we could always work this out, but then here this other, so, you know, what changed, what’s going on? And again, I’m asking broad questions, but we know when it comes to things like that, this are going to be tough cross exam style questions that are obviously leading people to a particular answer.
So let’s talk about how to categorize maybe our documents [00:06:00] so we can Make this a little bit simpler for us. And I kind of like to group things into two different sets of documents. One will be documents in the case, right? Things that are already in discovery. Everybody’s got access to. And the other set being instead are created for the case, right?
So you would talk about notes. Emails, timelines, visuals, statements, emails of communication. So this could come into, again, these are all things that may be covered by word product. And does that then lead them possibly to be discoverable? If they don’t know, clients don’t know the rules or when it’s still under the rules.
Knowing one, if things are already in the case and discoverable, that’s really not a problem. A concern there that we’re going to be revealing some kind of case theory or something that’s you, maybe you’re not ready for your timing, right? The release of information that’s already in there. That’s probably not going to be your concern, but with this other set, that could be your concern, right?
These notes, [00:07:00] timelines, emails, visuals, communications that may have happened and. Or things that are on their way to be produced, right? Expert reports can sometimes fall in that place. So, what I try to do is, I’m going to go ahead and just look at this from a frame of what is, what is my must list, right?
Let me make a list of must documents, like weird things that we absolutely have to have the client, the witness look at, we have to use it in role play and make sure that they have it and know how to navigate questions around it. And that could be a hot button issue, right? That could be that one medical record page that, you know, says, whoopsie, I bent over and pick up a bag of dog food and heard a tweak to my back.
Or that could be the email that says, Hey, I never want to do this and then turn around and they did it or whatever, maybe, but that may be kind of one of those hot, Issues in the case. So you definitely want to put [00:08:00] that on the must list. And other things that go on my must list are things that are just going to help for memory purposes.
And I particularly prefer visuals, photographs in particular, right? So if we’re preparing, I’m preparing somebody who has been in a car crash, showing them the police report, I think mildly helpful compared to showing the photographs of the vehicles, showing them, right, taking them back into that place, but also that visual is going to stick with them more than the police report.
So, that’s really going to be a little more helpful for helping them remember details about that, what happened and, All that kind of stuff. It also helps, too, if you have a particular opposing counsel who, what part of your car hit what part of their car, like those kinds of things. And again, we’re really looking at memory purposes.
How can we help refresh their memory in a very efficient [00:09:00] way, but also a way that’s going to be really fruitful and helps them remember more. I also have a list that I just call the no list, and that would be absolutely not going to show this witness these documents because if I show it to him, it creates a problem, meaning I’m going to reveal some case theory or case information, or I’m going to put the witness in a bad position as to having too much knowledge or too much information.
Therefore, kind of creating them up on this pedestal. I’m putting them in a position in the case that we really don’t want them to be in, meaning having more knowledge and opinions or putting positions in the case. That don’t necessarily match up to what other people are saying or maybe sometimes you just go too far and that can happen and the example that I have of that is really giving too many medical records to a person.
They may be somebody who really gets engrossed in them and then takes the positions too far beyond what your medical [00:10:00] experts may have. And that can even come with, like, a life care plan. I’ve definitely seen it to where clients will take that life care plan and then say, Well, no, I need to have this and I need to do this.
And then they’re not really matching up right with what the expert is. And then they go and kind of say all those things in their deposition, which then can make things worse. Put things in a really weird matchup when it comes later down the road and you’re forced to make decisions as a trial lawyer about what to do about that.
So we definitely don’t want to create problems. And so there’s sometimes there’s a no list that we are documents we’re absolutely not going to show. And then there’s kind of this gray area or maybe like, maybe we need to spend some time on these, uh, on, on documents. This could be, maybe there’s all kinds of things that could fit in this category.
I kind of keep this out there when I’m going through a file. I will look at things and pull them at as I go through and review [00:11:00] things as there is a must, like we must look at this, right? Photographs that kind of generally falls into the must if there’s again. Particular communications or emails that the client, the witness is involved with, that we know they’re getting questions, that goes in the must, that there may be a, again, a second category of maybe, right?
So somewhat dangerous document to them in a position of the case, but not really that dangerous. Necessary. Maybe just for memory purposes, maybe it’ll help, maybe it won’t. So that may be there. And then of course, our no list where I’m gonna review and have the information, but I am not going to let them have the document at all, or maybe even have knowledge about what the knowledge that I have, right?
Because again, we don’t wanna create these difficult positions for our case or our client. And so really at the end of the day, I just look at what do they need to know, right? With that witness point of view, and how does this help and how could it hurt? [00:12:00] And that’s kind of a, those are super general, but a lot of times people will come and ask me questions well, and have, have strong opinions about, well, they must look at this medical summary or this medical records.
They must know their doctor’s names. They must know, um, What did they have surgery? Hey, hands down, not going to argue with that. It’s great when people have strong memories, but sometimes there may be a bigger hurdle in the case that they need to tackle and, or there’s lots of ways to solve that problem.
Looking at a ton of medical records doesn’t necessarily help people remember it later on. That’s why one of the things that I like to do, my preference is really to look at, Hey, how can we work together through this information and make it easy and make it visual? Like one of the things I always like to do with folks, cause I work a lot with, Almost a lot of personal injury folks is we just create a timeline together and it’s super simple.
If I’ve got a driver’s board, I just draw a line on there and we [00:13:00] just start ticking things off. And I think that we’re helping jog memory. We’re also creating this. Visual about the period of time, the things that have happened to them. And sometimes we think, Oh gosh, well, we need to create a different one.
Let’s do one for like your jobs. Like, cause that seems like another part that we can add to this. Any, it’s just a quick visual that we’re going through. Now, what happens a lot of times is we’re testing the waters to see, okay, how much do they really remember? And I always ask them once we walk through this exercise, how comfortable do you feel answering questions?
Everybody’s worried about their memory. Right. That’s one of the biggest concerns I always get when sitting down with clients and witnesses. They’re going to remember everything. It’s always a concern, right? We can’t remember everything. It’s just the nature of who we are. We just kind of happen. So accepting that, how can we help this person?
But I always like to kind of test things out. We create a visual and I always like to ask [00:14:00] them if they would like something to take in with them. Now, some people say, I have a horrible memory, but I don’t want to take anything with me because I feel like if I try to look down or try to refresh, remember something, I’ll just get completely lost.
Great. Appreciate that. Or somebody says, no, I would like to have that. I’ll take it in with me and then I’ll have it just in case, right? So I got like a security blanket. All these are just questions you ask them after we’ve kind of tested things out. But what I don’t want to do is. I’m going to give them something and ask them to look at it or review it.
And it just, they don’t know where they don’t know what we’re talking about. They don’t know what questions they’re going to give around it. They can look at it, review it, but without putting it into a particular place or context for them, it really may not help jog memory or do anything beneficial for them.
So that’s to try and test it out first and also [00:15:00] create a visual together with them. And again, that may open up to me or the lawyer that I’m working with saying like, Ooh, we, we need to get some medical records in here. And sometimes we have to do that. It becomes what goes from the maybe to the must list because people may be forgetting a very particular symptom that they had for a while, but now it’s gone away.
Right? So they kind of. You know, move on, don’t have that sentiment anymore, but maybe it was just, it’s really important part of that damages story and try as we must, their memory is not going to come back. So we’re going to help them do that. And once we use the documents together, we always want to use them again, right?
We want to use them in role play again, to give them that example of how that’s going to be used with them. If they’re going to have a timeline, how. Are they going to be questioned about that if they walk in there? And the timelines they walk in with are very, very tame versions. We’ve got a date, maybe a doctor name, and a purpose for the visit, right?
Depending on kind of what, what’s happening [00:16:00] with this person’s body. Or maybe it’s what happened before, right? The series of appointments before they end up having the injury that they’re there in the case of outpatient. Sometimes, I will tell you, there are just too many documents. There’s just too many.
It’s just not going to happen. And we really have to aim at that 30, 000 foot view of helping them. And just to organize answers around the big pictures. The big things in the case had this happen where I was preparing a mom and a dad and a daughter. Actually, it was a cancer misdiagnosis for the daughter.
She was 14 at the time, but time came deposition. She was 16 and this was a extremely fast moving cancer. She was Not predicted to make it to her 18th birthday. So some very emotional people, very guilt ridden folks, but mom was a total go getter and if I had asked her to, she’d read all 10, 000 pages of this person’s medical, of her daughter’s medical records, but she didn’t need [00:17:00] to do that because she had lived it and she was basically a walking encyclopedia about this particular cancer and her daughter’s experience.
So we didn’t need her to do that. But we needed her to be firm on the principles that we knew, which was the doctor missed it. It wasn’t a matter of mom not taking her back to the doctor. But we did train her with how, what happens when you’re confronted with a medical record, right? You take it, you review it, and wait for question, review it again.
That’s the tool, right? You take the thing and review it yourself. She did such a fantastic job giving the defense lawyer so much hell over these medical records because that’s exactly what they did. They wanted to wear her down and the reverse happens, right? And we didn’t train her to do that, right?
That was not what we had intended at all, but we knew going in, She was going to want to talk about the [00:18:00] symptoms and the impact and their lives and all these doctor’s appointments. We knew that was going to happen. We just, and we trained her what to do. She got documents, but man, she took those documents and she’d read through it.
And then she’d just start talking. She’d just start talking to the defense lawyer. Cause she had a, she knew where he was going. Now that’s not anything we don’t encourage people to do that. We always say, wait for the question, but she gave him such a hard time. He gave up. And she did a phenomenal job fighting for her daughter, but it just showed to me that we didn’t need to spend that time.
We really needed to help her with the bigger view, big, big things in the case. And she would take care of those little things because she wasn’t scared to talk about those things. And she wasn’t in a place where she was trying to, Put positions out there or go too far. I mean, she definitely was just a walk in the encyclopedia on the facts of the treatment and the care and her symptoms and the things that she’d experienced.[00:19:00]
So she became a fantastic witness for that purpose. Now on dad’s side, he didn’t have that information. He did not have that encyclopedia step by step of stuff, but what he had was very different, right? So he had a very different set of story. We didn’t bother him with all the records or the medicine either.
We just stuck to the big view and helped with the big target things. So all that to be said, how do we choose our documents with our clients in depositions? And again, I always go back to, it’s, Do they, what do they need to know? What’s on our must list? We must look at these documents. And how does it help?
What are we trying to help them with? And of course, using a visual aid when we’re preparing them, I think is very helpful and a quick way to look at our memory and see how we’re doing and possibly taking in a timeline to help them. So, I hope that this episode [00:20:00] and this series was helpful. I know that we can go a lot deeper into particular types of cases.
I really stuck with talking about personal injury cases, but of course, business cases again can end up having binders and binders and binders of things to talk about. And at some point you have to, again, go with the big view. You have to take the 30, 000 foot view because otherwise you’re just overwhelming them, right?
Bye. You To the point that they’re just going to give up. And we want to make sure we always optimize the testimony as best as we can. So if you have questions or you have comments, I would love to hear it. Please feel free to send me an email, but for now, please rate review this podcast on your favorite platform and share with somebody who may need some help.
Thanks so [00:21:00] much.