Host Sean Harris talks with Columbus attorney and OAJ member Dan Mordarski about preparing clients for testimony and whether or not preparation is necessary.
Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I am your host Sean Harris. Our guest today is Dan Mordarski. Dan is a solo practitioner here in Columbus. Dan, welcome to Civilly Speaking.
Dan: Thank you Sean.
Sean: Our topic today is preparing clients for testimony, be that in deposition or trial and I guess at the outset we should discuss whether or not preparation is even necessary in your view.
Dan: Well Sean, I think it is necessary, I think it’s critical and I do think there are lawyers out there that don’t prepare their clients to testify. I think that is a huge mistake, and in some cases, probably malpractice. I think clients, witnesses that you control need to be prepared to testify. People don’t do that every day. So they maybe see things on TV, maybe they think they understand the subject matter, but there is a difference between sitting in your conference room and talking to your client and having your client on the record cross examined about the critical parts of your case. Your case is going to rise or fall on your client’s testimony so you ought to prepare them for their deposition and certainly for trial.
Sean: Talk to us about timing. I mean some people, I’ve seen lawyers, certainly defense lawyers, come in the morning of the deposition and asked for a half an hour in your conference room to prepare, I have heard other lawyers you know meeting days or weeks in advance.
Dan: Yeah I, I always meet well in advance of a deposition with my client and I try to do deposition prep in stages because no one, I don’t believe anyone can do well with a one-time prep right before their deposition, whether that’s an hour before or even the day before. I like to give clients time to think about it, time to sleep on it, time to maybe panic and call me two days later and say hey I just thought of this, what if they talk about this and to be honest I want to think about it a little bit more because I always learn something new when I talk with clients especially when I am preparing for testimony. So I try to do it at least a week in advance if I can. Sometimes for bigger cases when there’s more complexity, I’ve got a case right now where we’ve scheduled actually three prep meetings and we’ve already had one meeting just to talk generally about the case, but there is so much involved and such complexity that we felt it was important to have multiple meetings just to make sure that everybody is on the same page and that there is time in-between the meetings and the testimony to, to think about it and address any issues that come up that we haven’t thought about.
Sean: You know I think I picked this tip up at an OAJ seminar once, but somebody suggested that you right up front ask your client what are you most worried about. Is that ever something you try?
Dan: I think that is a great idea and so my question is typically, you know you have to give a deposition tell me tell me what you think that means and then I will explain what a deposition is, most people sort of have a general sense of what it is, but then questions like tell me what concerns you, tell me was there something that kept you up last night thinking about this meeting today, what makes you the most concerned about sitting for that deposition next week and then I generally tell people for the most part the facts are what they are. I am not going to be able to tell them what to say, what the facts are, they know what it is, in fact they know those facts better than me usually and so my understanding of the case has come from them and maybe other documents here and there, but they’re not going to be able, I am not going to be able to tell them what to say. There are times when how you say it matters and I’ll explain that there might be ways to explain things or phrase things or talk about things that are more helpful than other ways. That doesn’t mean that I am telling them how, what the facts are and they still have to feel comfortable, there’s no way you could prepare somebody with a word for word script or any of those kind of things, but you can help people understand the difference in how you phrase things because as lawyers, that’s what we do. We phrase things, we deal with words and how we explain things and not everybody is very good at that in there everyday life so sometimes they need help explaining that.
Sean: I thought when he asked that question, most times the response from the respondent, tell me what to say, what are you most worried about, the response is I don’t want to accidentally say the wrong thing. Right, even though I have the best intention I am not trying to hide anything, it may be misconstrued or used against me and that’s out of my control.
Dan: Yeah and I think that’s good and so one thing that helps you do is figure out where their focus is and for the most part you know I’ll know by then what the critical areas are and quite honestly what the difficult areas are for us. There’s always good parts of your case and bad parts of your case, you’ve got to cover both, you’ve got to explain those bad parts, you’ve got to let them know that there coming and generally what I do is ask them first, what do you think about that, whatever that difficult area is. Get their initial response and then you can start to work from that and so maybe that initial response is good and you say, but it’s important that you also include this part. Now I am not telling them anything that they don’t already know, what I am doing is telling them how to add additional information to the bad part to make it even less bad or explain the whole picture rather than taking it out of context which is probably what the other side would like to do.
Sean: Talk to us about demeanor and presentation of clients in a formal proceeding and what do you advise your clients.
Dan: Yeah, so I have sort of the same rule for depositions that I do with trial is that I tell people I don’t want you to dress in a way that you don’t normally dress so if you don’t wear a suit to work every day, don’t wear a suit to the deposition or trial. Now, I don’t want you coming in your bathing suit but, you need to be comfortable and you need to be you. I’ve seen many people put on a suit and be very uncomfortable and they don’t, it doesn’t fit them. I don’t want that, I want them to be comfortable and I want them to be themselves. We all know that juries are going to judge people based upon their appearance. Defense lawyers are going to do the same thing. Adjusters are going to do the same thing. I keep the same rule whether it’s a video deposition or not, you’ve got to be who you are, you’ve got to feel comfortable in what you do and so that I think that’s important. I also tell people, especially at trial, I tell them to assume that when you leave your house there’s going to be a juror outside your door and your drive into the courthouse there is going to be somebody who is on the jury behind you and next to you in your car and in the parking garage and everything else. Assume that everybody you meet is going to be a juror.
Sean: After the juror gets done Googleling and checking out their Facebook.
Dan: Yeah, exactly. So and that’s a, and I do the same thing and so that means that when you come to the elevator you let that other person in the door, you open the door for everybody. There are quite frankly people that don’t like people who smoke. I tell my clients that. If they are smokers, I ask them as much as I can to not smoke in front of other people so if we’re on breaks, you know if you have to go outside and smoke, go out, walk around the corner. Think that’s one of those, now if you’ve got eight smokers on the jury, maybe you bonded, but the reality is most people look differently at smokers and if there is any possible way that smoking could be relevant to your case and relevant to whether you healed or didn’t heal those are issues that you just don’t want the jury to see.
Sean: And yeah, that’s a good point, that’s one of those what neuropsychological type of biases that jurors may hold that you can have some control over. You can’t control everyone, but that’s one issue you can be mindful of. That’s a good point. Talk to us about in the deposition setting because I have heard different philosophies about when it comes to applied discussing their harms and losses and damages. You know the traditional approach has kind of been the less said the better, if they don’t ask you about it you don’t tell them about it. I have also heard lawyers say this is the one area in the deposition where we want to give them more information because they have the power to settle your claim. What’s your approach?
Dan: So that’s a good question. I tend to lean more towards the second part. Let them know what it is and in fact in some respects I want them to hear about the liability side too. One reason is you’re right; the defense lawyer is going to communicate to the adjuster. When I was a defense lawyer, I wanted to know. Now I wanted to know for two reasons, one I wanted to know for trial, but two I had to prepare a report that had to go back to the client and there’s going to be a section in there that talks about liability issues and what’s you know what’s going to happen. I needed to put something in there as a defense lawyer. So as a plaintiff’s lawyer, help yourself and help your buddy on the other side. Let them know what those liability issues are. Now, there’s not a whole bunch that they probably don’t know already, your clients not going to be the main source of that information, its coming from their client, its coming from witnesses, its coming from the police report and everything else so it’s not like there any magical thing that you are going to be able to hide and then spring at trial. My view is get it out there. If you’ve got a strong case, there going got want to settle it, if you’ve got a weak case maybe you’re going to want to settle it. So this sort of lets be coy and hide things, you know I used to think that was the way to go when I was sort of a younger lawyer. I remember just sort of starting out and I think on the defense side that’s kind of the big thing, don’t let the other side know what you’re doing. Maybe I’m just getting old. It, it doesn’t seem to make sense. You know it’s sort of the classic idea of discovery is to sort of let the other side know what’s going on. I don’t you know, I do generally have the rule that if they don’t ask, you don’t volunteer things. I still think that’s the right rule, but I don’t think there’s a reason to not provide information if there not asking about it.
Sean: And well you made an interesting comment earlier about being a former defense lawyer and your insight about filling out that report, of course as a plaintiff’s lawyer I have only heard tell of these reports, but it seems to me at least in the deposition setting, one of the goals of a plaintiff’s lawyer should be to help fill in that report to provide the information that goes back to the person who gets to make the call.
Dan: Yeah, and you know I see that I do a lot of mediations now and I see that mistake more and more from plaintiffs lawyers, is that there not helping their defense lawyer settle the case with them. There, they hold back too much thinking oh I don’t want them to know about this. The reality is I think you do want them to know about it. Now sometime there’s some grey nuggets that you sort of keep to yourself and sometimes you get to that point of you say, how bad do I want to settle the case because if I disclose this, you know there’s a better chance I’ll settle it, but boy its really good and I really want to save it for trial because they won’t see it coming. Those are tough calls, but for the most part we don’t have those critical things. So you know, my view is you let the defense know. I’ve often sent information to defense lawyers now and said enclosed are the following documents and for your purposes you may want to advise your adjuster about these things to help them provide or create an appropriate reserve in the case. You’re almost spoon feeding things you want the adjuster to get, but every defense lawyer regardless of who they work for and now I didn’t work for many insurance companies I usually had commercial clients who had in house lawyers that I reported to, but doesn’t matter everybody on the defense side is at some point providing your report that goes to their client or the insurance company that is going to be used to determine whether you are going to settle the case, try the case and how much reserve or how much settlement authority you are going to put on the case. Get that information to the defense lawyer, if he doesn’t have it, it’s not going in the report.
Sean: How much time or focus do you devote to discussing the legal claims and defenses with your client in advance of them testifying?
Dan: And that depends on the type of case that you have. I think in a standard auto accident case, I don’t go into in-depth detail of what the elements of negligence are or those kind of things, but I recently had a case involving a, my client was a pedestrian in a cross walk and was hit by a person driving who was turning right and didn’t see him and so I did go into detail, a little bit, about the legal analysis of what the law says when you step off the curb. Did you have the walk signal? Now my client had told me very early on that he did and he never wavered from that and so by the time we got to the depo preps, one thing I said is very important from a legal perspective that you had a walk signal. You’ve always told me that it was walk when you left and it changed when you were half way across the road and he said yep that’s what it was and I said well then your answer can never change on that. In the deposition no matter how the question comes better make sure that is how you answer it. I explained sort of right away and whether he had a duty to look and all those kind of things. I didn’t show him cases, but I explained the general principle and I explained why his factual answers were important from a legal perspective. When you get into sort of a more complex litigation, you know sort of maybe a professional liability or those kind of things sometimes I’ll go into the law on those things just to prove context as to why their factual answers to certain things are important from a legal perspective.
Sean: Yeah, that’s a good point, the varies based on the type of case and complexity. I was working on an employer intentional tort case earlier this year, right and you know the questions coming, do you think my client intentionally tried to hurt you and so preparing you know as much legal information as they can handle.
Dan: And that’s probably about one of the worst. I mean the worst preps is an intentional tort case because that questions coming, you know it’s coming, you’re trying to explain it to your client and you know it’s a weird tap dance of do you think your employer intentionally tried to you know hurt you and you know the answer to that is going to be a summary judgment issue no matter what happens. I had a case recently where the, it really caught me off guard, I hadn’t prepared my client for this and I will for now on, but it was you don’t blame my client for your injuries do you? So the word blame is a very ambiguous word.
Sean: That’s not in the revised code.
Dan: No, and it wasn’t an intentional tort, it was a malpractice case, a medical malpractice and the word blame is not a legal word, that’s not in any element, that’s not going to be in jury instructions. If the question was asked do you think my clients responsible, my client would have said yes, but the client said, well no I don’t blame her because blame in his mind was something different. Blame to him meant that the defendant did something intentional. He thought she made a mistake, but not intentional and so the answer was it was. We talked about it afterwards and you know just had a general conversation about blame and responsibility and he said well yeah I think there responsible of course so, I wouldn’t of you know been in this lawsuit so…
Sean: So that’s right if they would have asked do you think my client caused your injury or your damages in this case, different question different answer.
Dan: Yeah and so there is a, I thankfully learned there is some case law in Ohio that you should not get summary judgment as a defendant because you asked about blame, specifically where blame, in fact Jamie Oliver got that decision on the court of appeals, same thing. Her client was asked in an intentional tort case do you blame my client for your injuries or something using the word blame, the defendant got summary judgment on that, court of appeals reversed saying blame is a very ambiguous word that means different things to different people and doesn’t have a legal meaning, but that’s one thing to you know incorporate into your depo prep.
Sean: That makes sense and I am just glad to see a case law update, common sense every once and awhile.
Dan: Yeah, yeah.
Sean: Talk about, so we talked about demeanor, prep and legal claims, how about documents and photographs, how do you use those to prepare a client?
Dan: So I think that is a critical piece of this process. Now some cases are more document intensive than others. You know you could have some cases where there’s really not a lot of documentary evidence other than medical records. So in those situations, I have now started giving copies of the medical records to my client, asking them to read through them and just tell me if there is anything that doesn’t look right. We all know that mistakes are made, we all know now that medical records have things that aren’t true. I have seen now, many times when my client is both pregnant and had a pap smear and he is the nicest man I ever met and so we know what happens with electronic medical records.
Sean: But perhaps there not false information, there just alternative facts.
Dan: Yeah, we are now allowed to use alternative facts in our life’s economy. So the one thing I do is have them generally familiar with their medical records because you know the defense lawyer is intimately familiar with those records. So I’ve felt like now it’s better to have them more informed than to have the after the fact the, well I have never seen those my doctor sees them he doesn’t check them with me and that’s always the explanation you are going to have, but I rather have the client know about them. Interesting issue for the first time I went to the doctor about three weeks ago and they were sitting there asking me questions and the nurses back was to me and she was standing by the computer and I noticed that she flipped through about five or six screens, never asked me a question just checked all the boxes, there was one button that would check all the boxes in the category and I just sat there and kind of smiled to myself thinking how many times has that happened to my client where all those boxes are checked and so you know and I am starting now to look at what the screen is and so I had no complaints about back injuries, I had no complaints about headaches, I had no complaints and all of these things were just being checked without anybody asking questions. So I think that is one of them, those important areas where when it comes to medical records I think it makes sense for clients to read those before the deposition and then you guys talk about anything that seems strange or unusual and then when it comes to things like photographs I think it’s very important that your client sees those photographs, sees the critical documents, good or bad for you and if there are things that you know are coming talk about it, show them those photographs show them the documents and explain what you think those questions are going to be and see what those answers are going to be.
Sean: Dan tell us about how, do you use a kind of mock interview or question and answer type, almost mock deposition or mock cross examination in your prep session?
Dan: I think that’s critical because you can have a conversation with somebody and you can be on the same page or at least believe you are. You can have a conversation of you understand this issue right and you understand this. I think there are lawyers that make those mistakes in their trial testimony prep. Generally what I do is either have a separate conversation or a conversation where we talk about what the facts are what the theories are and then we have a separate time where I say okay let’s pretend like you are in the court room and I am going to ask you questions and so my first question to you is what’s your name and I will make them say what their name is and then we’ll just go and go with the Q and A’s. Now there will be times where I will stop and say okay this is an important area or okay your answer was okay but it stopped short of really there are some other things you need to address. Now if you don’t address them all, I’ll come back and ask you, but if you can try to get out most of those things in your initial response that makes it better, but don’t worry if you miss something because I have a check list here of what I am going to add so that helps them a little bit, feel more comfortable about testifying and it helps you to find out where there’s holes in things. Holes in either your alibi or in their memory of things like that. The other part that I think is critical is finding out where those pressure points are for your client. I’ve handled many cases where emotion was important and sometimes just having a conversation you can find out where the emotion is, but asking that client that question and seeing them tear up seeing that emotional response come out, I think you find that our better in a question and answer session like you were in trial than in a general conversation. I also think it’s critical that you cross examine your client. You must get them ready for those questions and they have to come in short spurts like a cross examination is, not a sort of general soft conversation about now if they ask you this they might ask you this. It’s got to be the question like it’s going to come in the court room and direct and sometimes cutting them off and going to the next one, you’ve got to get them ready just like you would get an athlete ready to perform you’ve got to get your client ready to perform, if you put an athlete out there that hasn’t worked out for a week, there not going to do well. If there out of shape, there not going to do well so your client is I think in the same spot. They’ve got to get ready; you’ve got to get them prepared, thinking about those kind of things and thinking about their answers. I tell people there are certain types of witnesses that I think need extra help. On one hand, it’s the sales people, sales people love to talk. Sales people don’t always get there facts right because the facts don’t matter it’s the picture, it’s the big picture so sometimes those people you need to make sure, wait a second you said this, it’s really this, oh yeah I know I meant that, well I meant that doesn’t get you there, especially in the deposition, at trial maybe, maybe you can do that because again you’re painting the big picture and you’re hoping that the jury follows the big picture, but if you’re not really following the facts you’re going to be in trouble. So on the one hand it’s the backslappers, the the aw shucks you know people that really don’t sometimes say what they mean but in a conversation or a room they could capture the whole room. Those people get killed in depositions because what they say and when its typed up its kind of like Donald Trump, if you read what he says it’s almost incomprehensible, but he can get a room or a country to believe him because he goes in this cadence and stuff like that. So the sales people are a concern for me and take extra help. On the other hand it’s the engineers and accountants, people that have everything meticulous, everything that’s got a spot everything is here and if it, if I’ve hit the spot I am not saying anything else. Well sometimes that’s okay, but a lot of times it’s not. A lot of times you understand it and maybe another engineer might understand it or maybe an accountant might understand it, but the rest of the world doesn’t and I have had people who are really smart in those technical areas who stop short and I am looking at them like go give the rest of it and so you know sometimes in the deposition sometimes at the end I will if it’s really important I will ask follow up questions to make sure the full story gets out. At trial obviously your job is to come back and say Mr. so and so you were asked some questions about this I want to make sure the jury gets a full picture or if they stop short when you’re asking the questions, you know then you should come back and say I you know I understand that but what about this and lead them down the road, but those people I think need extra prep so they know and understand why you’re doing that. Look your job is to pull out the information, as long as they understand why you’re doing it you’re better off if you don’t prepare them then you get that blank stare and that’s about the most uncomfortable thing in front of the jury when you say Mr. Smith what about this and then they look at you and the next thing they say is what about it and you know it’s not going to go well from there so having that preparation and letting them know if they don’t give the full thing you’re going to pull it out so you know you’re job is to make sure that you guys are the one way I’ve heard it is lawyers and witnesses should dance. Now they don’t have to be completely choreographed, but if you’re taking a step to the right, you’re partner better be taking a step to the right too. If you’re going to the right and they’re going to the left it’s not going to be good so you got to at least work enough so you can dance together, it doesn’t have to be perfect, but you’ve got to be going the same direction.
Sean: Dan Mordarski thanks very much for joining us here on Civilly Speaking.
Dan: Thanks Sean.