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.
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.
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.
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.
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.
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.
Copyright © 2018 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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