‘My Client Is a Nightmare!’ How to Prepare Your Difficult Legal Malpractice Client for a Deposition

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By Ashley Eiler

Ashley Eiler is special counsel with Wiley Rein LLP, where she focuses her practice on the defense of professionals and complex insurance coverage disputes.

Lawyers who specialize in defending other attorneys in legal malpractice cases generally agree: lawyers are unique clients who present a number of challenges as witnesses. However, even the most challenging lawyer witness can give helpful (or at least neutral) deposition testimony with the right kind of preparation and training, according to an April 24 panel at the ABA Spring National Legal Malpractice Conference in Washington, D.C.

The panel – comprised of moderator Christine Mast, partner with Hawkins Parnell Thackston & Young LLP; Adam Boesen, senior trial consultant and managing director of litigation psychology at Courtroom Sciences, Inc.; Andrew Kowlowitz, partner at Furman Kornfeld & Brennan LLP; and Victor Pioli, shareholder at Johnson & Bell, Ltd. – provided a variety of practical tips for preparing a legal malpractice client for deposition and emphasized, above all, the need to anticipate how the client will handle stressful questions and to ensure the client understands how a juror is likely to view the case.

Goals and Objectives

At the outset, it is important for defense counsel to understand the goals and objectives for any given deposition, according to the panel. Some depositions are used to develop and assess a case. Other depositions are critical to present evidence in support of a pretrial dispositive motion or to lock in testimony from a witness whose memory is failing or who may be out of reach by the time of trial. The panel emphasized knowing what both the defense and the plaintiff expect to achieve in the deposition in order to form an effective preparation strategy.

According to Mast, “you are not going to win the case at the deposition, but a bad deposition can cost you your case.” The panel agreed that the key in any deposition is to prevent surprises and to put the client’s best foot forward by appearing poised, professional, and competent.

Preparing to Prepare

According to the panel, even before defense counsel sits down with her client, there is a great deal of work to do. Kowlowitz noted that he routinely assigns his clients “homework” in the form of reviewing the pleadings, discovery responses, any document that the plaintiff’s counsel is likely to mark as an exhibit, and testimony from other key witnesses.

Kowlowitz also recommended that defense counsel do her own “homework” by running an Internet search on the client, pulling the client’s biography, and searching for any past lawsuits or disciplinary matters involving the client. To the extent that time permits, Kowlowitz recommended reviewing each of these items in detail with the client during his prep session.

The panel also explained that a critical part of the “preparing to prepare” stage is for defense counsel to familiarize herself with the plaintiff’s likely themes and to be able to talk to the client about the perspective of the pro-plaintiff juror. Pioli emphasized that the facts won’t change, but they can be viewed differently, so it is important that the client understands that perspective in order to assess the risk and exposure.

Talk, Teach, & Practice

In terms of the preparation session itself, it is important to set aside time (and maybe several blocks of time) to prepare in person with the client shortly before the deposition – but not on the day of the deposition, according to the panel.

In terms of structuring the preparation session itself, Boesen suggests employing a three-part strategy that he labels “TTP”: (1) talk through the case with the witness; (2) train the witness on how to testify; and (3) practice. According to Boesen, it is critical to keep each of the TTP stages distinct; otherwise, there is a risk that the witness will end up sounding as if he is following a script rather than testifying truthfully and confidently.

Witness-Specific Strategies

  • Pearl Clutcher: Some clients (either by their nature or because of past experiences) are overly anxious and tend to be scared of every question. The risk presented by this type of client is that, in an effort to appease, they will start admitting to facts that are not actually true. The panel recommends that defense counsel mitigate this risk by spending extra time preparing the overly anxious witness.
  • Brock Braindead: Some clients insist that the best strategy is to respond “I don’t know” or “I don’t recall” to every question, believing that it is best not to be locked in to any single set of facts. The panel strongly recommended against this strategy, noting that it can backfire easily, as a client may not be able to introduce his side of the story at trial if it is not disclosed during discovery. In addition, a witness who suddenly remembers everything in detail at trial is subject to damaging impeachment by his prior “I don’t recall” responses to the same questions. The best preparation strategy for these witnesses is to review every document in detail, as defense counsel may need to re-educate the client on the specifics of the case-within-a-case. Pioli and Kowlowitz also suggested advising forgetful witnesses that the answer of “I don’t remember but if you show me a document, my memory may be refreshed” is far superior to “I don’t know.”
  • Don Nile: Occasionally, a client will want to deny everything and argue every single point. When the deposition is for discovery only, the best strategy is likely to let the client get his argumentative tendencies out, Pioli said. By contrast, for evidentiary depositions, it is important to take more time with the “training” stage of TTP, Pioli said. The panel also emphasized that, here again, a defense attorney should be able to empathize with the argumentative client, build trust, and then help him see how a pro-plaintiff juror is likely to view his responses.
  • Newt Around: Many clients will put off preparing for a legal malpractice case because they are too busy with their own practices. The panel cautioned that such clients are often overconfident in their abilities as a witness or are not taking the case seriously. According to Kowlowitz, it is best in such cases to play by the client’s rules by focusing on the most critical topics and documents and keeping preparation sessions short and pointed.
  • Abe East: In some cases, the defendant lawyer may have made a mistake or engaged in misconduct. According to the panel, the right strategy in such cases is often to play it straight by owning the mistake and then moving on to focus on causation and damages issues. A client who refuses to take responsibility may be penalized by a jury, so it is important for defense counsel to explain to the witness how the jury is likely to perceive his answers. Boesen recommended that role playing can be especially helpful here, if defense counsel or another colleague is able to model “good” and “bad” answers and allow the witness to experience the responses through the jury’s eyes.
  • Ben Lyon: The panel agreed that the “spin artist” witness who tends to embellish can be the most challenging of all. It can be difficult to explain to a client why the jury is likely to discredit his testimony without calling him a liar. According to the panel, it can be helpful for defense counsel to emphasize her own experience and knowledge of juries as a way to build trust with the client, and can also be useful to rely on documents that objectively refute the witness’s testimony.

When to Call in a Professional Consultant

According to Kowlowitz, there are some cases – either because of an exceptionally difficult client or because of the exposure – where it is helpful to retain an outside consultant to work with the client.

Boesen explained that, when he is retained as a consultant, he follows the TTP approach. During the “talk” stage, he interviews the client and gets a sense of the witness’s natural talking points and fears/stressors. During the “training” stage, he treats the witness like a student in a classroom setting, asking that the witness take notes by hand and explaining that their only job is to tell the simple truth. Boesen noted that he instructs witnesses how to be professional, polite, and engaged. Finally, during the “practice” stage, Boesen observes while the witness answers questions, stopping for “coaching” moments to remind the witness to listen to the question, pause to think about the response, and then deliver the simple truth with confidence.

When retaining an outside consultant is not cost-justified, defense counsel can still hold a mock deposition that works like a stress test for the client. According to the panel, some effective strategies include videotaping the witness during a practice session, asking other attorneys to serve in the role of opposing counsel, and inviting other attorneys to observe and then debrief afterwards.

When Things Go Badly Despite Preparation

In closing, the panel offered a few thoughts about what defense counsel can do when, despite preparation, a client’s deposition does not go well. Pioli suggested asking for breaks, but cautioned that what is said during breaks by counsel can be discoverable. He also explained that he instructs clients to take note if he is objecting frequently, as that can be a helpful reminder to the client to get back to the basics of listening to the question and responding confidently.

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