CLIENT PREPARATION: HOW TO PRESENT YOUR CLIENT AT TRIAL
I. THE PREPARATION OF YOUR CLIENT FOR TRIAL BEGINS IMMEDIATELY
A. Client’s Background
1. Check your client’s background as carefully as you would that of a defendant in the case or the third-party criminal actor. Most people acquire “skeletons in the closet” during the course of their lives, in varying degrees of importance. Early on in the case, and certainly before their deposition or even answering written discovery, the plaintiff should be questioned by their lawyer concerning prior arrests/convictions, prior violent crimes experienced, any history of substance abuse, family violence or abuse, or prior psychological problems or treatment experienced. Employment history, including any job terminations, should be investigated in advance. This should be a first step, but the plaintiff’s lawyer should not necessarily stop there. It is prudent to obtain background information through law enforcement agencies and other means. This is for the client’s own protection, as any defense lawyer worth his salt will jump at the opportunity to discredit the plaintiff, imply that a tendency toward promiscuity or substance abuse contributed to the occurrence, or be able to attribute any psychological impairment to prior life problems.
II. ASSIMILATION AND INTERACTION
A. Your Client:
1. Send a letter to your client indicating to them how they should act during a deposition. (A copy of the letter I use is attached as Appendix “A”). This will set the tone and stage for preparing them for their trial appearance. There are videotapes available which can be shown to clients shortly before their deposition which will give them some visual cues on how to conduct themselves. This begins the process of assimilation and memory recall which is essential to presenting a credible “party or witness”. (The party or witness is hopefully telling the absolute truth, but may “appear” to be speaking untruthfully because of the strange surroundings and lack of recall since you forgot to refresh his/her memory.)
2. Talk to your client: Go over key reference points concerning his/her life and the facts. (The defense lawyer will be certain to do so; therefore, you will want to know before the defense lawyer does.)
III. DEPOSITION/TRIAL PREPARATION LIST
A. Cover Standard Trick Manipulative Questions:
1. Have you talked to your lawyer about this case just prior to this deposition/trial?
2. Have you watched a video tape?
3. When did you hire your lawyers?
4. Who referred you to your doctor?
5. Would you tell me everything that you are unable to do now that you were able to do before the incident?
6. Would you tell me every way that this incident has affected you?
B. Be Sure the Client Knows the Defense Attorney May Ask How Much Money He/she Thinks He/she Is Entitled to and about Amounts That Are Listed in Interrogatories or Pleadings.
C. Advise Client They Could Be Asked about Prior Worker’s Compensation Cases and If They Previously Claimed a Total and Permanent Disability. They Could Also Be Asked Why They Think They Are Unable to Work Presently If They Expect to Be Permanently Disabled.
D. Be Sure the Client Is Familiar with All Prior and Subsequent Accidents and Injuries and Relay Them If Asked by the Defense Attorney.
E. Be Sure the Client Is Familiar with the Date of Injury and How Much He Has Lost in Wages to the Date of the Deposition/trial and Is Familiar with Potential Lost Earning Capacity in the Future.
F. Familiarize Your Client with Total Amount of Specials to the Date of the Deposition/trial and Future Specials.
G. Refresh Your Client’s Memory:
1. On the occurrence that will establish liability and of the entire day’s events prior to the incident, such as consumption of alcohol, partying, drinking habits.
2. On what anyone said at the scene of incident and what your client said in response to police or witnesses.
3. On what police did at the scene and what was said to the officer by plaintiff or witnesses.
4. On first symptoms of present body complaints, i.e., black and blue bruises from the assault; restricted activities and hobbies, such as sports, yard, movies, church. The inability to interact in relationships because of psychological effects of rape is a good example in depositions as it is an indication that married life, sexually and emotionally, have been affected.
5. On present medications.
6. On arrest and criminal records.
7. On ways that they live their life differently than before the incident.
8. On versions of any key facts given by witnesses or other parties in the case.
H. Establish with client what predicate you are going to lay regarding evidence you need to admit with their testimonial assistance.
I. Birth dates of children, spouse, date of marriage. Job and names of children, spouse, siblings.
J. Prior marriages — names, dates
K. Location of prior hospitalization, as well as present date for same.
L. Job history since high school – omitting major employers by mistake can look very bad at trial.
M. Question about cash monies that are earned and not reported on income tax return.
N. Refresh client’s memory so he can draw a diagram that matches liability theory.
O. Tell client to avoid using word “ain’t” or “done”.
P. Watch for defense question “Why is the defendant negligent?”
Q. Effects on home life. Frequency of sexual relations.
R. Go over negligence allegations in pleadings.
S. Prepare him/her for questions regarding what his/her future plans are.
T. Watch for questions concerning comparative/contributory negligence.
IV. INADEQUATE SECURITY PLAINTIFFS SHOULD BE PREPARED DIFFERENTLY
A. The Trial of the Inadequate or Negligent Security Case, from the Plaintiff’s Perspective, Is Markedly Different from a “Standard” Personal Injury Trial in Several Respects. Some of the Major Differences Include:
1. The plaintiff’s attorney must be prepared to face a popular defense tactic known as “let’s blame the criminal actor.” Obviously, in this genre of cases, the ultimate act — be it a rape or other violent crime — is committed by a third party. The criminal is usually either a faceless, nameless individual who has not bee apprehended and upon whom the defense lawyer can freely lay blame, or worse yet, is a scarred, fear-invoking criminal with an arrest record like a telephone book. In either case, the plaintiff’s lawyer can be certain that the issue of laying sole blame on the criminal actor will be raised at some point. The importance of the above cannot be overestimated in persuading the jury of the defendant’s liability.
2. The victim’s advocate must be prepared from the beginning of voir dire to persuade the jury panel that the civil case being tried is not about the criminal act, as far as liability issues are concerned, but is instead about the landowner/possessor/controller defendant. The jury must be repeatedly requested to focus their attention, again for liability purposes, not on the commission of the act, but on what the defendant knew or should have known in the time leading up to the act, how the defendant should have foreseen this particular violent crime, what the defendant could and should have done to prevent the crime, and what the defendant failed to do from a preventive standpoint.
3. Careful concern must be given to the fact that the jury will be dealing with “invisible” damages, i.e., injuries which are primarily psychological in nature. It is easy to look at, and even talk to, the victim of a rape or violent crime, and conclude as a lay person that the victim has fully recovered. Steps must be taken to ensure that the magnitude of the victim’s damages are adequately conveyed to the members of the jury sitting on the case.
V. YOUR CLIENT AT TRIAL (AND AT DEPOSITION, FOR THAT MATTER)
A. Appearance and Demeanor
1. Posture: Sit up straight: look them in the eye and believe that you are saying. Both you and your client must do this.
2. Use “Yes, sir “, “No, sir” and exemplify professionalism and courtesy under pressure. If it seems natural, this conduct will enhance the witnesses’ credibility and strengthen their testimony.
3. Double check the jewelry and clothes planned before trial or deposition.
4. Remind client not to expand on the answers unless you advised him to regarding the particular area of inquiry. Just answer the question.
5. Remind witnesses they may ask counsel to rephrase a question. Tell your client not to simply agree with conclusions of opposing counsel.
6. Four questions for your client to ask herself before answering a question:
a. Do I understand the question?
b. Do I know the answer to the question?
c. Do I remember the answer to the question?
d. How do I want to answer the question?
7. Tell your client when the attorney is asking the “difficult” questions, look at the knot in his tie.
8. Tell your client to remember that they can ask for a break of they start feeling “fuzzy” or “confused”.
9. When the attorney asks the questions that allow your client to “tell your story”, look him straight in the eye and “tell your story” completely.
D. Impeachment Preparation
1. Make sure your client has read their pleadings and all discovery. (When the deposition or trial testimony starts differing from the answers to the interrogatories because of fading memory, you are in trouble.)
2. Make sure your client reviews all of his/her prior statements, written or oral.
VI. VOIR DIRE ISSUES
A. Public’s Perception or Misconceptions
1. Because of the general public’s perceptions — and misconceptions — concerning inadequate security cases, especially those dealing with a rape, jury selection almost requires a crystal ball. For example, one would intuitively assume that women would be favorable on the jury panel when the plaintiff is a female rape victim, as women would probably be most sympathetic toward the victim and correspondingly angry at the defendant. In practice, this can prove to be 180 degrees from the truth: women on juries, especially when the plaintiff is young and/or attractive, tend to be more critical of the plaintiff, and will oftentimes seek to blame the plaintiff in some way for what ultimately occurred, even when there has been no allegation that the plaintiff consented in any way, and likewise, no contributory negligence claims.
2. General public prejudices include the assumption that rape is a crime of sex, and that therein lies the primary motivation of the rapist, rather than violence; that women bring the rape upon themselves; that the rapist and victim are never acquainted prior to the rape, but are always strangers; that rapists commit the crime on impulse, rather than after premeditation; and that rape always happens to someone else. You must stress to the jury that rape is a crime of violence; there is no sex involved. No one of sound mind would willingly request to have a violent crime perpetrated upon themselves. This renders the entire issue of the dress, appearance, and/or lifestyle of the plaintiff, all of which are frequently raised by defense counsel, as irrelevant.
B. Have a Theme
1. The use of a “theme” for your case is a fundamental for success that must be addressed at the outset during voir dire, opening statement, throughout the case, and brought home during final argument. The theme should be short, memorable, and something that should make the defense wince every time they hear it uttered. For example: “This is a tragic story about the company that just didn’t care.” Evidence then brought in that the company didn’t care to determine the level of criminal activity, didn’t care to make a security assessment, didn’t care to hire any type of security personnel, didn’t care to provide any security devices, and didn’t care about your client’s “rape” can form a powerful tie-in to the theme.
The unique and special nature of the negligent or inadequate security case requires careful attention to a number of factors, all of which will culminate in a favorable jury verdict. There is no greater challenge for the victim’s attorney than to win just compensation and redress for the tragic attack on their client. Hopefully, some of the concepts, ideas, and approaches discussed in this paper will be of some assistance in improving the way these cases are tried. Through these cases, utilizing proper preparation, coupled with a belief in our cause, we cannot only effectuate change for our client, but better security for ourselves and our families.
– Steven C. Laird, Laird & Cummings, P.C.,
1824 8th Avenue, Fort Worth, Texas 76110, 817-531-3000, www.texlawyers.com